United States District Court, D. South Carolina, Charleston Division
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE
proceeding pro se, is seeking habeas corpus relief pursuant
to 28 U.S.C. § 2254. ECF No. 1. In accordance with 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)
(D.S.C.), this matter was referred to United States
Magistrate Judge Mary Gordon Baker for pre-trial proceedings
and a Report and Recommendation (“Report”). On
November 30, 2018, Respondent filed a Motion for Summary
Judgment. ECF No. 26. Petitioner filed a Motion to Amend or
Correct the Petition and a Motion to Stay on December 11,
2018. ECF Nos. 30, 31. He later filed a Response in
Opposition to the Motion for Summary Judgment. ECF No. 38.
Respondent filed a Response in Opposition to
Petitioner’s Motions. ECF No. 37. On February 13, 2019,
the Magistrate Judge issued a Report only with respect to
Petitioner’s Motions to Amend and to Stay recommending
that the Motions be denied. ECF No. 40. The Court issued an
Order adopting the Magistrate Judge's Report on April 23,
2019. ECF No. 44.
31, 2019, the Magistrate Judge issued a Report recommending
that Respondent’s motion for summary judgment be
granted, Petitioner’s case be dismissed with prejudice,
and a certificate of appealability be denied. ECF No. 51.
Petitioner filed objections, and Respondent filed a reply.
ECF Nos. 53, 54.
LAW AND ANALYSIS
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
636(b). The Court will review the Report only for clear error
in the absence of an objection. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (stating that “in the absence of timely
filed objection, a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.” (citation omitted)).
claims are governed by 28 U.S.C. § 2254(d), which
provides that his petition cannot be granted unless the
claims “(1) resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). “[A]
federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Williams v.
Taylor, 529 U.S. 362, 411 (2000). Importantly, “a
determination of a factual issue made by a State court shall
be presumed to be correct, ” and Petitioner has
“the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. §
bypass, sometimes referred to as procedural bar or procedural
default, is the doctrine applied when a petitioner seeks
habeas corpus relief based on an issue he failed to raise at
the appropriate time in state court, removing any further
means of bringing that issue before the state courts. In such
a situation, the petitioner has bypassed his state remedies
and, as such, is procedurally barred from raising the issue
in his federal habeas petition. See Smith v. Murray,
477 U.S. 527, 533 (1986). The United States Supreme Court has
stated that the procedural bypass of a constitutional claim
in earlier state proceedings forecloses consideration by the
federal courts. Id. Bypass can occur at any level of
the state proceedings if a state has procedural rules that
bar its courts from considering claims not raised in a timely
Supreme Court of South Carolina will refuse to consider
claims raised in a second appeal that could have been raised
at an earlier time. See S.C. Code Ann. §
17-27-90; Aice v. State, 409 S.E.2d 392, 394 (S.C.
1991). Further, if a prisoner has failed to file a direct
appeal or a PCR application and the deadlines for filing have
passed, he is barred from proceeding in state court. S.C.
App. Ct. R. 203(d)(3), 243. If the state courts have applied
a procedural bar to a claim because of an earlier default in
the state courts, the federal court honors that bar. See
Reed v. Ross, 468 U.S. 1, 11 (1984); see also
Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995).
As the United States Supreme Court explained:
[State procedural rules promote] not only the accuracy and
efficiency of judicial decisions, but also the finality of
those decisions, by forcing the defendant to litigate all of
his claims together, as quickly after trial as the docket
will allow, and while the attention of the appellate court is
focused on his case.
Reed, 468 U.S. at 10–11.
if a federal habeas petitioner can show both (1)
“‘cause’ for noncompliance with the state
rule” and (2) “‘actual prejudice resulting
from the alleged constitutional violation[, ]’”
the federal court may consider the claim. Smith, 477
U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S.
72, 84 (1977)). When a petitioner has failed to comply with
state procedural requirements and cannot make the required
showing of cause and prejudice, the federal courts generally
decline to hear the claim. Murray v. Carrier, 477
U.S. 478, 496 (1986). Further, if the petitioner does not
raise cause and prejudice, the court need not consider the
defaulted claim. See Kornahrens, 66 F.3d at 1363.
federal habeas petitioner has failed to raise a claim in
state court and is precluded by state rules from returning to
state court to raise the issue, he has procedurally bypassed
his opportunity for relief in the state courts and in federal
court. Coleman v. Thompson, 501 U.S. 722,
731–32 (1991). Absent a showing of cause and actual
prejudice, a federal court is barred from considering the
claim. Wainwright, 433 U.S. at 87. In such an
instance, the exhaustion requirement is technically met, and
the rules of procedural bar apply. Teague v. Lane,
489 U.S. 288, 298 (1989).
and Actual Prejudice
the requirement of exhaustion is not jurisdictional, this
Court may consider claims that have not been presented to the
Supreme Court of South Carolina in limited
circumstances-where a petitioner shows sufficient cause for
failure to raise the claim and actual prejudice resulting
from the failure, Coleman, 501 U.S. at 750, or where
a “fundamental miscarriage of justice” has
occurred, Carrier, 477 U.S. at 495–96. A
petitioner may prove cause if he can demonstrate ineffective
assistance of counsel relating to the default, show an
external factor hindered compliance with the state procedural
rule, or demonstrate the novelty of a particular claim, where
the novelty of the constitutional claim is such that its
legal basis is not reasonably available to the
petitioner’s counsel. Id. at 487–89;
Reed, 468 U.S. at 16. Absent a showing of
“cause, ” the court is not required to consider
“actual prejudice.” Turner v. Jabe, 58
F.3d 924, 931 (4th Cir. 1995). However, if a petitioner
demonstrates sufficient cause, he must also show actual
prejudice to excuse a default. Carrier, 477 U.S. at
492. To show actual prejudice, the petitioner must
demonstrate more than plain error. Engle v. Isaac,
456 U.S. 107, 134–35 (1982).
alternative to demonstrating cause for failure to raise the
claim, the petitioner must show a miscarriage of justice. To
demonstrate a miscarriage of justice, the petitioner must
show he is actually innocent. See Carrier, 477 U.S.
at 496 (holding a fundamental miscarriage of justice occurs
only in extraordinary cases, “where a constitutional
violation has probably resulted in the conviction of someone
who is actually innocent”). Actual innocence is defined
as factual innocence, not legal innocence. Bousley v.
United States, 523 U.S. 614, 623 (1998). To meet this
actual innocence standard, the petitioner’s case must
be truly extraordinary. Carrier, 477 U.S. at 496.
raises ten grounds in his Petition. The Magistrate Judge
found that only part of Ground Nine is properly before the
Court; the remainder of Petitioner’s claims are not
cognizable on federal habeas review or are procedurally
defaulted. Petitioner objects to the Magistrate Judge's
recommendations. The Magistrate Judge provided a thorough
recitation of the procedural history and the relevant law,
including the summary judgment standard, which the Court
incorporates into this Order by reference.
of Petitioner’s grounds concern only South Carolina
law. In Ground Three, Petitioner contends that the trial
court erroneously reversed itself by allowing the prosecution
to bring up his prior altercation with the victim, Alexander
Harrison. In Ground Six, he asserts that the trial court
improperly ruled that he had opened the door to that
evidence. As stated by the Magistrate Judge, Petitioner also
mentions in his supplemental petition that the trial court
erred in allowing Ulysses Daniels to present some of his
testimony in camera before he testified before the jury and
that the trial court improperly allowed witnesses to testify
to hearsay statements Harrison made after he was shot. The
Court agrees with the Magistrate Judge's recommendation
that these claims concern questions of state law that are not
cognizable on federal habeas review and that Petitioner has
failed to put forth a showing that these rulings resulted in
a denial of a constitutionally fair proceeding. See Barbe
v. McBride, 521 F.3d 443, 452 (4th Cir. 2008)
(“Importantly, in considering federal habeas corpus
issues involving state evidentiary rulings, ‘we do not
sit to review the admissibility of evidence under state law
rules unless erroneous evidentiary rulings were so extreme as
to result in a denial of a constitutionally fair
proceeding.’” (citation omitted)). Accordingly,
Respondent’s motion is granted with respect to these
default is an affirmative defense that is waived if not
raised by respondents. Gray v. Netherland, 518 U.S.
152, 165–66 (1996). If the defense is raised, it is the
petitioner’s burden to raise cause and prejudice or
actual innocence; if not raised by a petitioner, the court
need not consider the defaulted claim. Kornahrens v.
Evatt, 66 F.3d 1350 (4th Cir. 1995). Here, Respondent
contends many of the grounds raised in the Petition and
supplement are procedurally barred. Petitioner argues he can
establish cause for any procedurally barred claims of
ineffective assistance of trial counsel under Martinez v.
Ryan, 566 U.S. 1 (2012), and that he is actually
innocent. The Court agrees most of Petitioner’s grounds
are procedurally barred.
Not Raised on Direct Appeal
Seven is procedurally barred as a direct claim, absent a
showing of cause and prejudice, because it was never raised
on direct appeal. See Justus v. Murray, 897 F.2d
709, 711 (4th Cir. 1990).
Not Presented to the Supreme Court of South Carolina in
Petitioner’s Petition for Writ of Certiorari
One, Four, and the portion of Five pertaining to DNA evidence
are procedurally barred because they were not presented to
the Supreme Court of South Carolina in Petitioner’s
petition for writ of certiorari. See Whitley v.
Bair, 802 F.2d 1487, 1500 (4th Cir. 1986). Because these
grounds were not fairly presented to the Supreme Court of
South Carolina, they are procedurally barred from federal
habeas review absent a showing of cause and actual prejudice.
See Coleman, 501 U.S. 722 (stating that if an issue
is not properly ...