United States District Court, D. South Carolina, Greenville Division
Bryan Harwell United States District Judge.
Farid Ahmad Mangal, a state prisoner proceeding pro se and in
forma pauperis, has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. See ECF
No. 1. The matter is before the Court for consideration of
Petitioner's objections to the Report and Recommendation
(“R & R”) of United States Magistrate Judge
Kevin F. McDonald, who recommends granting Respondent's
motion for summary judgment and denying Petitioner's
§ 2254 petition. See ECF Nos. 52 & 59. The
Court adopts in part and rejects in part the R & R for
the reasons explained herein.
State of South Carolina indicted Petitioner for criminal
sexual conduct with a minor, lewd act upon a child, and
incest, alleging he sexually abused his daughter from ages
ten to sixteen. See generally ECF No. 20-39
(indictments and warrants). Petitioner proceeded to trial in
2007 and was represented by attorney Lawrence W. Crane
(“trial counsel”); the jury found him guilty of
all charges; and the trial court sentenced him to thirty
years in prison. See App. 1-555. Petitioner
filed a direct appeal, and the South Carolina Court of
Appeals summarily affirmed his convictions and sentences in
an unpublished opinion. See ECF Nos. 20-11 through
20-16. The South Carolina Supreme Court denied certiorari to
review the Court of Appeals' decision. See ECF
Nos. 20-17 through 20-20.
then filed a pro se application for post-conviction relief
(“PCR”) in state court. See App. 557-62.
In April 2011, the PCR court held an evidentiary hearing at
which Petitioner-represented by attorney J. Falkner Wilkes
(“PCR counsel”)-and trial counsel testified. App.
568-615. The PCR court denied and dismissed Petitioner's
application in a written order. App. 616-622; ECF No. 20-21.
Petitioner filed a motion to alter or amend pursuant to Rule
59(e) of the South Carolina Rules of Civil Procedure, App.
623-33, and the PCR court issued a written order denying the
motion. App. 639-40. Petitioner appealed, and the South
Carolina Court of Appeals reversed the PCR court's
decision and remanded the case for a new trial. App.
680-88; see Mangal v. State, 781 S.E.2d 732 (S.C.
Ct. App. 2015) (“Mangal I”) (holding
trial counsel was ineffective for not objecting to improper
bolstering testimony). However, the South Carolina Supreme
Court granted the State's petition for a writ of
certiorari, found Petitioner's PCR claim was procedurally
defaulted, reversed the Court of Appeals' decision, and
reinstated the PCR court's decision. ECF No.
20-34; see Mangal v. State, 805 S.E.2d 568 (S.C.
2017) (“Mangal II”) (finding it
inappropriate to excuse Petitioner's procedural default).
then filed the instant pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. See ECF
No. 1. Respondent answered by filing a return and a motion
for summary judgment. See ECF Nos. 20 & 21.
Petitioner filed a response in opposition to Respondent's
motion. See ECF No. 34. The Magistrate Judge issued
an R & R recommending that the Court grant
Respondent's motion and deny Petitioner's § 2254
petition. See R & R [ECF No. 52]. Petitioner
filed timely objections to the R & R. See
Pet.'s Objs. [ECF No. 59]. Respondent did not respond to
Review of the Magistrate Judge's R & R
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see generally Rule 12 of the
Rules Governing Section 2254 Cases (“The Federal Rules
of Civil Procedure . . ., to the extent that they are not
inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.”);
Brandt v. Gooding, 636 F.3d 124, 132 (4th Cir. 2011)
(“Federal Rule of Civil Procedure 56 ‘applies to
habeas proceedings.'” (quoting Maynard v.
Dixon, 943 F.2d 407, 412 (4th Cir. 1991))). “A
party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to
particular parts of materials in the record . . .; or (B)
showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). “The evidence must
be viewed in the light most favorable to the non-moving
party, with all reasonable inferences drawn in that
party's favor. The court therefore cannot weigh the
evidence or make credibility determinations.”
Reyazuddin v. Montgomery Cty., 789 F.3d 407, 413
(4th Cir. 2015) (internal citation and quotation marks
alleges trial counsel was ineffective by failing to object to
and by eliciting testimony that improperly bolstered the
victim's credibility. The Magistrate Judge recommends
granting Respondent's motion for summary judgment because
Petitioner's claims are procedurally defaulted and
because the default cannot be excused under Martinez v.
Ryan, 566 U.S. 1 (2012). See R & R at pp.
17-39. Petitioner specifically objects to the Magistrate
Judge's recommendation that his default cannot be excused
under Martinez, and he requests an evidentiary
hearing on his Martinez claims. See
Pet.'s Objs. at pp. 2-9.
Procedural Default & The Martinez
seeking federal habeas review of a claim, a petitioner
ordinarily must raise that claim in the state court,
complying with state procedural rules and exhausting
available state remedies.” Gray v. Zook, 806
F.3d 783, 797-98 (4th Cir. 2015). “[I]f a claim is
exhausted in state court and not procedurally defaulted, then
it was adjudicated on the merits and is subject to review
under the deferential standards set forth in [28 U.S.C.]
§ 2254(d).” Id.
“[u]nder the well-established doctrine of procedural
default, a federal habeas court may not review a claim that a
state court has found to be clearly and expressly defaulted
under an independent and adequate state procedural rule
unless the prisoner can demonstrate  cause for the default
and prejudice resulting therefrom or  that a failure to
consider the claims will result in a fundamental miscarriage
of justice.” Juniper v. Zook, 876 F.3d 551,
565 n.6 (4th Cir. 2017).
Martinez, the U.S. Supreme Court held that
“[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a
prisoner's procedural default of a claim of ineffective
assistance at trial.” 566 U.S. at 9.
“Martinez is an exception that enables habeas
petitioners to obtain merits review of otherwise procedurally
defaulted claims under certain circumstances.”
Teleguz v. Zook, 806 F.3d 803, 815 (4th Cir.
state-such as South Carolina-limits
ineffective-assistance-of-trial-counsel claims to collateral
review, a petitioner may invoke Martinez if he can
demonstrate (1) that state PCR counsel “was ineffective
under the standards of Strickland v. Washington, 466
U.S. 668 (1984), ” and (2) that the underlying
ineffective-assistance-of-trial-counsel claim is
“substantial.” Buck v. Davis, 137 S.Ct.
759, 771 (2017); see Porter v. Zook, 898 F.3d 408,
438 (4th Cir. 2018). The Fourth Circuit has expounded on the
requirement of a “substantial” claim:
Regarding the requirement that there be a
“substantial” claim, the Supreme Court held that
a prisoner must “demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.”
Martinez, 132 S.Ct. at 1318. Relatedly, to show
ineffective assistance, the petitioner must make a
“substantial” showing with respect to both
counsel's competency (first-prong Strickland)
and prejudice (second-prong Strickland).
As to the specific elements of the ineffective assistance
claim, a petitioner must make a substantial showing of
incompetency, i.e., that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed by the
Sixth Amendment. Further, the petitioner must make a
substantial showing that counsel's errors were so serious
as to deprive the defendant of a fair trial, a trial whose
result is reliable, i.e., that there was a substantial, not
just conceivable, likelihood of a different result.
Teleguz, 806 F.3d at 815 (ellipsis, some internal
quotation marks, and some internal citations omitted).
Significantly, “because a petitioner raising a
Martinez claim never presented the claim in state
court, a federal court considers it de novo, rather than
under AEDPA's deferential standard of review.”
Gray, 806 F.3d at 789.
of ineffective assistance of counsel must be reviewed under
the two-part test enunciated in Strickland v.
Washington, 466 U.S. 668 (1984). First, a petitioner
must show counsel's performance was deficient and fell
below an objective standard of reasonableness. Id.
at 687-88. Second, the petitioner must show prejudice,
meaning “there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
“[a] prisoner petitioning for habeas relief based on
ineffective assistance of counsel must meet two components: a
petitioner must show  that counsel's performance was
deficient, and  that the deficiency prejudiced the
defense.” Williams v. Stirling, 914 F.3d 302,
312 (4th Cir. 2019) (internal quotation marks and original
ineffective assistance claims concern three trial witnesses:
(1) forensic interviewer Wiley Garrett, (2) pediatrician Dr.
Nancy Henderson, and (3) the victim's mother Diane Farid.
Petitioner alleges trial counsel was ineffective by failing
to object to and by eliciting certain testimony from these
three witnesses that had the effect of improperly bolstering
the victim's credibility.Petitioner faults PCR
counsel for failing to properly raise these
ineffective-assistance-of-trial-counsel claims in the state
proceedings, and thus seeks to bring them in this federal
Court pursuant to Martinez.
Magistrate Judge correctly explains, the opinions of the
South Carolina Supreme Court and the South Carolina Court of
Appeals make clear that Petitioner's claims are defaulted
under South Carolina procedural rules governing issue
preservation and presentation of issues to a PCR
court. See Juniper, 876 F.3d at
565 n.6 (explaining the standard for procedural default).
Moreover, Petitioner does not object to the Magistrate
Judge's conclusion that the claims are procedurally
defaulted. Instead, he asserts “[t]he procedural bar
should be lifted” pursuant to Martinez.
Pet.'s Objs. at pp. 7-8.
to overcome the procedural default and for this Court to
review his claims of ineffective assistance of trial counsel
under Martinez, Petitioner must show (1) that the
claims are substantial (i.e., have “some merit”)
and (2) that PCR counsel was ineffective for failing to raise
them in the state PCR proceedings. Buck, 137 S.Ct.
at 771. The Court will consider each requirement in turn,
beginning with the ineffective-assistance-of-trial-counsel
claims. Cf. Juniper v. Zook, 117 F.Supp.3d 780, 791
(E.D. Va. 2015) (“If an underlying
trial-ineffectiveness claim has no merit, then it fails not
only under Martinez's first element, but also
the second element, because [PCR] counsel could not have been
ineffective for failing to raise a meritless claim.”).
Whether Trial Counsel Was Ineffective
Summary of Underlying Facts
facts surrounding Mangal's sex crimes are set forth in
detail in the court of appeals' opinion.”
Mangal II, 805 S.E.2d at 569; see Mangal I,
781 S.E.2d at 733-34. The R & R also summarizes much of
the testimony presented at Petitioner's 2007 trial.
See R & R at pp. 2-5. In brief,
[T]he victim-Mangal's nineteen-year-old
daughter-testified Mangal had been sexually assaulting her
since she was ten years old. She described where, when, and
how it happened. On cross-examination, trial counsel
questioned the victim about inconsistencies in her testimony
and suggested she had a motive to lie about the sexual
abuse-to gain freedom from Mangal's strict parenting.
Mangal testified in his defense and claimed the victim and
her mother fabricated the allegations.
Mangal II, 805 S.E.2d at 569-70. “Trial
counsel's theory of the case was that Victim and [her]
mother (Mother) fabricated the abuse allegations because
Victim wanted freedom from Petitioner's strict parenting
and Mother wanted to continue having an extra-marital
affair.” Mangal I, 781 S.E.2d at 734.
State called the victim as its first witness, and it called
forensic interviewer Wiley Garrett and pediatrician Dr. Nancy
Henderson as its final two witnesses. See App.
5-39, 45-90, 116-69. Petitioner called the victim's
mother (his ex-wife Diane Farid) as the third defense
witness, and she testified immediately before he
did. App. 257-320, 324-96.
Petitioner's improper bolstering claims are based on
certain testimony given by Garrett, Dr. Henderson, and the
testimony by one witness as to their opinion about the
credibility of another witness” is inadmissible,
“incompetent evidence.” State v.
Dawkins, 377 S.E.2d 298, 302 (S.C. 1989); State v.
Dempsey, 532 S.E.2d 306, 309-10 (S.C. Ct. App. 2000)
(recognizing Dawkins stands for the principle that a
witness cannot “improperly vouch for the victim's
credibility”). “[A]fter State v.
Dawkins was decided in 1989, the law was clear that
no witness may give an opinion as
to whether the victim is telling the truth.”
Thompson v. State, 814 S.E.2d 487, 491 (S.C. 2018)
(emphasis added) (quoting Briggs v. State, 806
S.E.2d 713, 718 (S.C. 2017)). “[T]he central
point of the prohibition against improper bolstering [is
that] a witness may not give an opinion for the purpose of
conveying to the jury-directly or indirectly-that she
believes the victim.” Briggs, 806 S.E.2d at
717; see Thompson, 814 S.E.2d at 491 (“[I]t
[i]s improper for a witness to vouch for the credibility of
another witness.”). “[N]o witness may give an
opinion as to whether the victim is telling the truth,
” and “[w]hen the testimony directly conveys the
witness's opinion that the victim is telling the truth,
it is obviously improper bolstering.” Briggs,
806 S.E.2d at 718.