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Brown v. Warden Lee Correctional Institution

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

September 19, 2019

Romeo Anthony Brown, Petitioner,
Warden Lee Correctional Institution, Respondent.



         Petitioner, 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.

         On July 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.


         Standard of Review

         The 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)).

         Habeas Corpus

         Petitioner’s 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. § 2254(e)(1).

         Procedural Bypass

         Procedural 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 fashion. Id.

         The 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.

         However, 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.

         If a 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).

         Cause and Actual Prejudice

         Because 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).

         As an 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.


         Petitioner 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.

         Non-Cognizable Claims

         Several 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 grounds.

         Procedurally Barred Claims

         Procedural 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.

         Ground Not Raised on Direct Appeal

         Ground 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).

         Grounds Not Presented to the Supreme Court of South Carolina in Petitioner’s Petition for Writ of Certiorari

         Grounds 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 ...

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