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Wray v. Bush

United States District Court, D. South Carolina, Beaufort Division

September 4, 2019

TREMAINE RASHON WRAY, Petitioner,
v.
WARDEN DENNIS BUSH, Respondent.

          ORDER

          THE HONORABLE BRUCE H. HENDRICKS UNITED STATES DISTRICT JUDGE.

         Petitioner Tremaine Rashon Wray (“Petitioner”), proceeding pro se, filed this habeas relief action pursuant to 28 U.S.C. § 2254. (ECF No. 1). In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this matter was referred to United States Magistrate Judge Bristow Marchant, for pre-trial proceedings and a Report and Recommendation (“Report”).

         BACKGROUND

         On May 1, 2018, Respondent Warden Dennis Bush (“Respondent”), filed a motion for summary judgment, along with a return and memorandum. (ECF Nos. 23, 24). On May 2, 2018, the Magistrate Judge entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response to Respondent's motion. (ECF No. 25). In that order, the Magistrate Judge advised Petitioner of the possible consequence of dismissal if he failed to respond adequately. Petitioner sought and received an extension of time (ECF Nos. 36, 37) and filed a response in opposition to the motion for summary judgment on August 10, 2018. (ECF No. 39). Respondent did not file a reply. On January 10, 2019, the Magistrate Judge issued a Report recommending that Respondent's motion for summary judgment be granted and the petition for a writ of habeas corpus be denied. (ECF No. 41).

         The Magistrate Judge advised Petitioner of his right to file specific objections to the Report. (ECF No. 41). Petitioner sought and received an extension of time (ECF Nos. 43, 44) and filed his objections on February 27, 2019, (ECF No. 46). Petitioner submitted 72 pages of handwritten objections. See Id. Respondent did not file a response. The case was subsequently reassigned to the undersigned. (ECF No. 47). The Report sets forth the relevant factual and procedural background from the trial and post-conviction relief (“PCR”) proceedings, as well as the relevant legal standards, which the Court incorporates here without recitation.[1]

         STANDARD OF REVIEW

         The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court 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). However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         DISCUSSION

         Petitioner filed his § 2254 petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, and therefore review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997). Petitioner raises twenty-four grounds for relief, which can be grouped into the following general categories with respect to subject matter: issues concerning the search and arrest warrants and underlying probable cause (Grounds One, Fourteen, Fifteen, Sixteen, Seventeen, and Eighteen); trial court error in failing to grant motion for mistrial following state's eliciting of certain testimony (Ground Two); trial court error in granting state's motion for continuance (Ground Three); all matters concerning Officer Gregory's incident report and eye witness Ricky Jacobs's testimony (Grounds Four, Five, Six, Ten, and Twenty-Three); the state vouching for a witness's credibility during closing argument (Ground Seven); all matters related to gun shot residue (“GSR”) (Grounds Eight, Nine, Twelve, and Thirteen); all matters concerning the theory of accomplice liability (Grounds Eleven and Twenty); incorrect application of the South Carolina Rules of Criminal Procedure governing expert testimony (Grounds Nineteen and Twenty-Two); trial court's denial of motion for directed verdict regarding the state's failure to prove Petitioner's identity (Ground Twenty-One); and PCR counsel's failure to preserve appealable issues (Ground Twenty-Four).

         As discussed below, the Magistrate Judge further organized the claims according to procedural posture and whether they are based on ineffective assistance of counsel.

         I. Grounds for Relief One, Two, and Three

         The Magistrate Judge determined that the first, second, and third grounds for relief do not implicate ineffective assistance of counsel and were properly raised in a direct appeal. Ground One asks whether the trial court erred “by not granting [Petitioner's] motion to suppress the fruits of the execution of the search warrant because the warrant lacked probable cause.” (ECF No. 1 at 5). Ground Two asks whether the trial court erred “by not granting [Petitioner's] motion for a mistrial when the solicitor improperly elicited testimony from the witness that cooperating with the police would get her killed.” (Id. at 7). Ground Three asks whether the trial court “erred by granting the State's continuance motion.” (Id. at 8).

         With respect to Ground One, the Magistrate Judge explained that “a freestanding Fourth Amendment allegation is not cognizable on federal habeas corpus relief, ” and that Petitioner can proceed with the claim only “if he can show that he was denied a full and fair opportunity to pursue this issue in state court.” (ECF No. 41 at 10-11). The Magistrate Judge found that Petitioner can make no such showing because he fully litigated the issue of probable cause in a motion to suppress, which the trial court decided subsequent to a hearing. The Magistrate Judge also noted that Petitioner raised the claim in his direct appeal and that the South Carolina Court of Appeals denied relief. (Id. at 11).

         With respect to Ground Two, the Magistrate Judge reviewed the basis on which the South Carolina Court of Appeals denied relief on the claim. The Court of Appeals relied in large part on the fact that in ruling on Petitioner's objection, the trial court had instructed the jury to disregard the state's question and the witness's answer. Then, in charging the jury, the trial court had directed the jurors to disregard any testimony stricken from the record. The Court of Appeals further noted that “the inflammatory insinuations in the solicitor's questions were not referred to again during the six and one-half days of trial that followed the witness's appearance, ” and that Petitioner had offered “only conclusory arguments to support that he was irremediably prejudiced by the questions and resulting testimony.” (ECF No. 23-13 at 4-5). The Magistrate Judge found no error in the Court of Appeals's ruling. He noted that a curative jury instruction is generally deemed to have cured any alleged error and, furthermore, whether to grant a mistrial lies within the sound discretion of the trial court. (ECF No. 41 at 13). The Magistrate Judge also reviewed the evidence supporting Petitioner's guilty conviction and determined that Petitioner had not shown how the colloquy between the state and the witness had caused Petitioner prejudice. Accordingly, the Magistrate Judge found that Petitioner had not shown that the denial of this claim was unreasonable. (Id. at 15).

         With respect to Ground Three, the Magistrate Judge reviewed the Court of Appeals's decision that the trial court's grant of the state's motion to continue was a proper use of the court's discretion. (ECF No. 41 at 16). The Court of Appeals found that the state's motion complied with Rule 7(a), SCRCrimP, and included “a showing of good and sufficient legal cause to postpone the trial, namely the existence of newly discovered information, that notwithstanding diligent efforts by law enforcement, could not be fully investigated before the scheduled trial.” (ECF No. 23-13 at 5). The Magistrate Judge found no error in the Court of Appeals's ruling.

         Petitioner does not object to the Report with respect to Grounds One and Three. As to Ground Two, Petitioner reasserts the arguments raised in response to the motion for summary judgment. Compare (ECF No. 46 at 3-5) with (ECF No. 39 at 19-21). The Court therefore considers this objection to be general and conclusory. The Court has thoroughly reviewed the record and the Report and finds no clear error with respect to these claims. Accordingly, the Court grants the motion for summary judgment as to Grounds One, Two, and Three.

         II. Grounds for Relief Five, Six, and Twenty-Three

         The Magistrate Judge found that Grounds Five, Six, and Twenty-Three implicate the effectiveness of legal counsel and were raised to and decided by the PCR court.[2] Ground Five asks whether Petitioner:

was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendment to the United States Constitution and the corresponding provisions of the South Carolina Laws and Statutes by Trial Counsel's failure to impeach the State's Eyewitness Ricky Jacobs with the Report of the Responding Officer, Weldon Gregory, and by his failure to move to admit the Police Report into evidence as a part of [Petitioner's] defense as an official report excepted from the hearsay rule under Federal Rule of Evidence 803(8)(c).

(ECF No. 41 at 5). Ground Six asks whether Petitioner:

was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the South Carolina Constitution Laws and Statutes by Trial Counsel's failure to investigate potentially exculpatory information in the police report, and to interview and subpoena Officer Ray Weldon Gregory, to testify pursuant to his Police Report and to [sic] authentice his handwritten Police Report and verify that he is the Officer who prepared the report.

(Id. at 6). Ground Twenty-Three asks whether Petitioner:

[was denied the right to effective assistance of counsel] in failing to cross examine the State's sole eyewitness about the fact that he initially did not identify Petitioner or his codefendant by name despite knowing both of them, and described the suspects involved in the shooting as one black male with dreadlocks and one black male with a close cut haircut and a striped shirt driving a white SUV, possibly a Nissan with a black stripe down the side, descriptions that matched two other individuals stopped shortly after the shooting took place in a White Isuzu Rodeo SUV with ammunition consistent with the shell casings found at the scene of the shooting?

(Id. at 9).

         A. Magistrate Judge's Findings

         The Magistrate Judge observed that “the PCR court rejected these claims after a full hearing, making relevant findings of fact and conclusions of law, ” and that “[f]acts related to these issues were also raised in Petitioner's PCR appeal to the State Supreme Court”; he therefore determined that these claims were “properly exhausted” for the purpose of reviewing the motion for summary judgment. (ECF No. 41 at 17-18). He then reviewed the PCR court's findings with respect to those claims according to the requisite deferential standard, (ECF No. 41 at 27-28), and as to whether Petitioner had demonstrated (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense such that Petitioner was deprived of a fair trial, (id. at 28 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).

         With respect to Grounds Five and Six, the Magistrate Judge noted that Officer Gregory “was the first responder on the scene following the shooting and that he prepared a short, handwritten report after the incident.” (ECF No. 41 at 29). The Magistrate Judge summarized the PCR court's findings as follows:

the PCR court found that Petitioner failed to establish any deficiency of trial counsel with respect to his allegations involving Gregory. The PCR court noted that trial counsel testified that as a general rule he does not like to call members of law enforcement as defense witnesses because to do so is more harmful than helpful to defendants based on his more than forty years of experience; and additionally, counsel testified that he was able to successfully cross-examine Jacobs without calling Gregory as a defense witness and was able to impeach Jacobs with other documents and testimony, including Gregory's report, although not all documents were admitted into the record at trial. The PCR court found that trial counsel's assessment was correct, and that Jacobs was thoroughly examined as to his recollection of events and his identification of Petitioner and his co-defendant. The PCR court found that trial counsel's performance was not deficient and that Petitioner failed to meet his burden of proof. The PCR court also found that Petitioner failed to show any resulting prejudice from this alleged deficiency. The PCR court noted that Gregory's testimony added very little to the overall presentation and likely would have had no impact on the result of the proceeding, explaining that trial counsel challenged Jacobs on virtually every aspect of his recollection. Specifically, the PCR court was not convinced that testimony from Gregory would have had any impact on the jury's view of Jacobs or his credibility, much less the result of Petitioner's trial.

(ECF No. 41 at 29-30) (internal citations to the record omitted). The Magistrate Judge observed that “the PCR court concluded that Petitioner failed to show the requisite prejudice and/or establish either of the required prongs needed for relief, ” and he concluded that he could “discern no reversible error in the PCR Court's findings and conclusion.” (Id. at 30).

         The Magistrate Judge further considered Officer Gregory's testimony during the PCR hearing and Mr. Jacobs's testimony during the trial. During the PCR hearing, Officer Gregory testified that Mr. Jacobs told him that after he denied the suspects entry to the club, one commented, “I've got something for you”; and, as relayed by Mr. Jacobs, a few minutes later, one of the suspects began shooting towards the club, firing from a white SUV. (ECF No. 41 at 30). The Magistrate Judge observed that Mr. Jacobs “testified at trial about the fact that Petitioner and his co-defendant were denied entry to the club because it was closing”; and he testified “about seeing a shot fired by someone in a white Isuzu Rodeo, which was after the initial shots were fired.” (Id. at 31) (internal citations to the record omitted). Nonetheless, the Magistrate Judge explained, “the record shows that trial counsel thoroughly challenged Jacobs on his recollection of the events at issue, ” and, “[t]herefore, Petitioner has failed to show that trial counsel's performance was deficient for failing to further impeach Jacobs with Gregory's report and for failing to move that report into evidence.” Id.

         The Magistrate Judge reached the same conclusion with respect to Petitioner's contention regarding trial counsel's failure to investigate potentially exculpatory evidence in Officer Gregory's report or interview or subpoena Officer Gregory to authenticate his report and testify. (ECF No. 41 at 31). The Magistrate Judge found that “even assuming that counsel had further investigated this issue and taken the additional steps outlined by the Petitioner, Petitioner has not shown the likelihood of a different outcome, and as a result he has failed to show any prejudice due to counsel's failure to investigate these matters.” Id.

         With respect to Ground Twenty-Three, the Magistrate Judge summarized the PCR court's findings as follows:

[t]he PCR court discussed that trial counsel testified that he was able to successfully cross-examine Jacobs without calling Gregory as a defense witness and was able to impeach Jacobs with other documents and testimony, including Gregory's report, although not all documents were admitted into the record at trial. The PCR court also found that trial counsel challenged Jacobs on virtually every aspect of his recollection. The PCR court found that trial counsel's assessment was correct that Jacobs was thoroughly examined as to his recollection of events and his identification of Petitioner and his codefendant; that trial counsel's performance was not deficient, and that Petitioner had failed to meet his burden of proof.

(ECF No. 41 at 32) (internal citations to the record omitted). The Magistrate Judge found no error in the PCR court's conclusion that Petitioner had failed to show deficiency or resulting prejudice.

         B. Objections

         Petitioner objects to the Magistrate Judge's findings. (ECF No. 46 at 18-31). Petitioner asserts in relevant part that:

trial counsel's failure to put the Report into evidence prejudiced Petitioner because it would have been used to impeach and refute the State's star witness testimony and used as proof to the jury that Ricky Jacobs committed perjury when he testified “repeatedly” on direct and cross examination that he never gave any information to “anyone” else at the scene prior to Inv. Dan McRae's arrival and that the first and only time he explained what he observed was to Inv. Dan McRae. This Police Report would have been able to impeach Mr. Jacobs to the extent that he could not have said anything of ...

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