United States District Court, D. South Carolina, Aiken Division
OPINION & ORDER
M. HERLONG, JR., SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court for review of the Report and
Recommendation of United States Magistrate Judge Shiva V.
Hodges, made in accordance with 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02 for the District of South
Carolina. Damon Jaques Jones (“Jones”)
is a state prisoner, proceeding pro se, seeking habeas corpus
relief pursuant to 28 U.S.C. § 2254. In her Report and
Recommendation, Magistrate Judge Hodges recommends granting
Respondent's motion for summary judgment and dismissing
Jones' petition with prejudice.
Factual and Procedural Background
is currently incarcerated at McCormick Correctional
Institution in the South Carolina Department of Corrections.
On August 25, 2005, Jones was indicted in South Carolina
state court for murder. (Ret. & Mem. Attach. 1 (App'x
328-29), ECF No. 21-1.) After a jury trial, Jones was found
guilty of murder and sentenced to life imprisonment on
December 1, 2005. (Id. Attach. 1 (App'x 311-14,
325-26), ECF No. 21-1.) Jones appealed his conviction and
raised two claims for relief regarding the state trial
court's refusal to admit Jones' videotaped
interrogation into evidence. (Id. Attach. 1
(App'x 333), ECF No. 21-1.) The South Carolina Court of
Appeals affirmed Jones' conviction on July 23, 2008.
(Id. Attach. 1 (App'x 392-94), ECF No. 21-1.)
Jones filed a petition for rehearing on August 7, 2008, which
was denied on September 23, 2008. (Id. Attach. 1
(App'x 395-401), ECF No. 21-1.)
December 15, 2010, Jones filed an application for
post-conviction relief (“PCR”), alleging
ineffective assistance of trial counsel, prosecutorial
misconduct, juror misconduct, due process, and abuse of
discretion claims. (Ret. & Mem. Attach. 1 (App'x
462-92), ECF No. 21-2.) An evidentiary hearing was held from
June 25, 2013 through June 26, 2013. (Id. Attach. 1
(App'x 500-650), ECF No. 21-2.) On March 4, 2014, the PCR
court dismissed Jones' PCR application with prejudice.
(Id. Attach. 1 (App'x 724-42), ECF No. 21-3.)
Jones filed a motion to reconsider pursuant to Rule 59(e) of
the South Carolina Rules of Civil Procedure. (Id.
Attach. 1 (App'x 743-44), ECF No. 21-3.) After a hearing,
the PCR court denied the Rule 59(e) motion on June 2, 2014.
(Id. Attach. 1 (App'x 777), ECF No. 21-3.)
November 13, 2014, Jones filed a petition for writ of
certiorari in the South Carolina Supreme Court, raising one
ground for relief: “Whether petitioner's case
should be remanded for a full hearing on his claim that Juror
#86 committed juror misconduct when she failed to reveal
during voir dire that she was a victim of a violent crime,
which would have led to counsel striking her from the
jury?” (Ret. & Mem. Attach. 1 (App'x 778-87),
ECF No. 21-3.) On September 3, 2015, the South Carolina
Supreme Court remanded the case for a hearing on the claim of
juror misconduct. (Id. Attach. 1 (App'x 798-99),
ECF No. 21-3.) After a hearing held on November 9, 2016, the
PCR court denied relief on December 15, 2016. (Id.
Attach. 1 (App'x 800, 828-31), ECF No. 21-3.) Jones filed
a petition for writ of certiorari on August 18, 2017,
asserting one claim for relief regarding the juror misconduct
claim. (Id. Attach. 5 (Pet. Cert.), ECF No. 21-7.)
The South Carolina Supreme Court denied certiorari on April
19, 2018. (Id. Attach. 7 (Apr. 19, 2018 Order), ECF
No. 21-9.) Jones filed a second PCR application on September
17, 2018, raising many of the same grounds for relief as he
raised in his first PCR application. (Ret. & Mem. Attach.
9 (Second PCR App.), ECF No. 21-11.) The second PCR
application was dismissed as successive and time-barred on
March 7, 2019. Jones v. State, C.A. No.
2018-CP-42-03217 (Mar. 7, 2019 Order).
filed the instant § 2254 petition on September 21, 2018,
alleging five grounds for relief:
Ground One: S.C. appellate courts were in
error for failing to find the video tapes at petitioner's
trial would not have benefitted him.
Ground Two: Prosecutor Misconduct and gross
[ineffective assistance of counsel] occurred when they both
worked in concert to withhold an abundance of exculpatory
evidence from petitioner depriving him of constitutional
rights to a fair trial.
Ground Three: Egegious [sic] Prosecutorial
Misconduct and Gross [ineffective assistance of counsel] was
committed when the prosecutor was allowed to enter and argue
a fabricated scene photo of the drivers [sic] side door of
the car where a hand size blood smear was digitally edited
off the drivers [sic] side door.
Ground Four: The Prosecutor committed
misconduct and defense counsel was again grossly ineffective
when he allowed the state to fasily [sic] argue fabricated,
distance, location, and 45 degree angle shot.
Ground Five: Defense counsel and the
prosecutor aided state witness Atiba Long in making second
written statement which is falsified evidence.
(§ 2254 Pet., generally, ECF No. 1.) On January 14,
2019, Respondent filed a motion for summary judgment. (Mot.
Summ. J., ECF No. 22.) Jones filed his response in opposition
on February 6, 2019. (Resp. Opp'n Mot. Summ. J., ECF No.
25.) Respondent did not file a reply.
2, 2019, Magistrate Judge Hodges issued a Report and
Recommendation recommending that the court grant
Respondent's motion for summary judgment and deny
Jones' petition because all of Jones' grounds for
relief are procedurally defaulted and he has not demonstrated
cause and prejudice or actual innocence to excuse the
default. (R&R 26, 32, ECF No. 29.) Jones filed objections