United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges, United States Magistrate Judge
Anderson (“Petitioner”) is an inmate at the
Lieber Correctional Institution of the South Carolina
Department of Corrections. He filed this pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
This matter is before the court pursuant to 28 U.S.C. §
636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a
Report and Recommendation on Respondent's return and
motion for summary judgment. [ECF Nos. 26, 27]. Pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
the court advised Petitioner of the summary judgment and
dismissal procedures and the possible consequences if he
failed to respond adequately to Respondent's motion by
April 25, 2019. [ECF No. 28]. Petitioner filed a response on
April 24, 2019 [ECF No. 30], to which Respondent replied on
April 30, 2019 [ECF No. 31].
carefully considered the parties' submissions and the
record in this case, the undersigned recommends granting
Respondent's motion for summary judgment.
Factual and Procedural Background
underlying facts are not in dispute. During the week of July
4, 2009, Christian Vickery, Allen Smith, and J.E., a minor,
were vacationing with their families in Myrtle Beach, South
Carolina. [See ECF No. 26-1 at 359]. On the night of
July 8, 2009, someone broke into their hotel suite and
burglarized it. Id. Petitioner was subsequently
arrested for the crime. Id.
2010, the Horry County grand jury indicted Petitioner for
first-degree burglary (Indictment No. 2010-GS-26-2883). [ECF
No. 26-1 at 368]. On March 12, 2012, represented by William
Edward Chrisco (“Trial Counsel”), Petitioner
proceeded to trial before the Honorable Benjamin H.
Culbertson, Circuit Court Judge. Id. at 1. On March
14, 2012, the jury found Petitioner guilty as charged and
Judge Culbertson sentenced him to 25 years' imprisonment.
Id. at 214, 217.
timely appealed and presented the following issues:
I. The trial court's qualification of a police officer as
an expert in fingerprint analysis violated Appellant's
right to a fair trial because the officer lacked the
requisite knowledge, skill, experience, training, and
education to form an opinion and testify accordingly.
II. The trial judge erred in refusing to strike the testimony
concerning fingerprint analysis, or in the alternative
declare a mistrial, based upon the prosecutor's failure
to disclose evidence favorable to Appellant and material to
his guilt in violation of Appellant's state and federal
constitutional rights to due process.
[ECF No. 26-2 at 5]. The South Carolina Court of Appeals
(“Court of Appeals”) affirmed Petitioner's
conviction on February 12, 2014, State v. Anderson,
754 S.E.2d 905 (S.C. Ct. App. 2014), and denied
Petitioner's petition for rehearing on March 21, 2014
[ECF No. 26-4 at 1].
April 24, 2014, Petitioner filed a petitioner for a writ of
certiorari in the Supreme Court of South Carolina, presenting
the following question:
Did the Court of Appeals err in affirming the trial
judge's refusal to strike the testimony concerning
fingerprint analysis, or in the alternative, declare a
mistrial, based upon the prosecutor's failure to disclose
evidence favorable to Petitioner and material to his guilt in
violation of Petitioner's state and federal
constitutional rights to due process?
[ECF No. 26-5 at 4]. The Supreme Court of South Carolina
denied the petition on November 10, 2014, and issued the
remittitur on December 12, 2014. [ECF Nos. 26-1 at 366, 26-6
March 23, 2015, Petitioner filed a pro se application for
post-conviction relief (“PCR”) and asserted the
10(a) Applicant was denied the right to effective assistance
of counsel-guaranteed by the Sixth and Fourteenth Amendments
to the United States Constitution and by Article 1,
§§ 3 and 14 of the South Carolina
Constitution-during the guilt or innocence phase of his
11(a) Supporting facts: Trial counsel's performance
during the guilt-or-innocence phase was both unreasonable and
prejudicial. Counsel's acts or omissions included, but
are not limited to, the following:
1. Counsel failed to adequately investigate the facts and
circumstances surrounding the direct evidence of eye witness
2. Counsel's failure to such an investigation deprived
the jury of vital information relevant to an accurate
assessment of applicant's guilt or innocence.
3. Counsel failed to seek an instruction stating that a
burglary charge must set forth one, specific crime intended
upon entry and stating what the specific crime was in this
10(b) Applicant was denied the right to effective assistance
of counsel - guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and by Article
I, §§ 3 and 14 of the South Carolina Constitution -
during the sentencing phase of his trial.
11(b) Supporting Facts: Trial counsel's performance
during the sentencing phase was both unreasonable and
prejudicial. See Strickland v. Washington, 466 U.S.
668 (1984). Counsel's acts or omissions included, but are
not limited to, the following:
1. Counsel failed to investigate, develop, and present all
available, relevant, and admissible mitigating evidence. As a
result of counsel's failure to uncover and present this
evidence, applicant's sentence is unreliable.
2. Counsel failed to object on all possible grounds to
inflammatory and irrelevant evidence presented by the
prosecution. As a result of counsel's failure to make all
appropriate objections, applicant's sentence is
10(c) Applicant was denied his due process rights as secured
by the Fourth and Fourteenth Amendments because of the
cumulative effect of several instances of deliberate
11(c) Supporting Facts: Prosecutors during all phases of this
case acted unreasonable and prejudicial. See Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) along with
South Carolina Rule 5. Prosecutors acts or omissions included
by not limited to, the following:
1. Prosecutor did not provide trial defense counsel with
discovery materials in a timely fashion.
2. Prosecutor did not provide defense counsel with all
relevant discovery materials.
3. Prosecutor did provide fraudulent materials to defense
counsel six days prior to trial.
4. Prosecutors deceiving tactics did impede the defense in
making reasonable decisions did result in unethical conduct.
10(d) Applicant was denied his Sixth Amendment right to a
trial by an impartial and objective jury.
11(d) Supporting Facts: During voir dire potential jurors
were asked about any type of relationships with defendant, if
so please stand. (No response) See McCoy v. State,
401 S.C. 363, 737 S.E.2d 623 (2013). Jurors concealment
deprived him of information material to his intelligent use
of peremptory challenges. Jurors act or omissions included
but not limited to:
1. Juror who was empaneled and sat through entire trial did
intentionally conceal information and was directly in
contempt of court.
2. Juror concealed information that would have supported a
challenge for cause or would have been a material factor in
the use of the party's peremptory challenges.
[ECF No. 26-1 at 230-34 (errors in original)]. The State
filed a return on August 25, 2015. Id. at 235-39.
The Honorable Michael J. Nettles, Circuit Court Judge, held
an evidentiary hearing on February 7, 2017, at which
Petitioner was represented by Steven W. Fowler, Esq.
Id. at 241-346. Petitioner and Trial Counsel
testified regarding Petitioner's claims of ineffective
assistance of counsel and prosecutorial and juror misconduct.
Id. On May 4, 2017, Judge Nettles denied
Petitioner's PCR application and dismissed it with
prejudice. Id. at 347-57.
March 8, 2018, Petitioner appealed the PCR court's
decision to the South Carolina Supreme Court through a
Johnson petition for a writ of certiorari filed by
Appellate Defender LaNelle Cantey Durant. [ECF No. 26-7 at
1-11]. The petition presented the following issue:
Did the PCR court err by not finding trial counsel
ineffective for failing to conduct a sufficient investigation
into Petitioner Anderson's case by not interviewing the
main witness, Joe E., a minor who testified at the trial and
identified Petitioner as the burglar when the witness had
told the state before trial that he could not identify the
burglar but trial counsel never talked to this witness?
Id. at 3. Durant certified the petition was without
merit and requested to be relieved as counsel. Id.
at 12-13. Petitioner did not file a pro se response to the
Johnson petition. The South Carolina Supreme Court
denied the petition for a writ of certiorari and granted
Durant's request to be relieved as counsel on October 10,
2018. [ECF No. 26-8]. On October 26, 2018, the court issued
the remittitur, which was filed on October 29, 2018. [ECF No.
Federal Habeas Issues
originally asserted six grounds for relief. [See ECF
No. 20-1 at 5-12]. On January 29, 2019, he amended his
petition to add a seventh ground. [ECF No. 20]. On June 26,
2019, Petitioner withdrew Grounds One, Three, and Seven. [ECF
No. 32]. Accordingly, Petitioner raises the following
Ground Two: The trial judge erred in
refusing to strike the testimony concerning fingerprint
analysis, or in the alternative declare a mistrial.
Ground Four: Failure to investigate and
adequately cross examine witness [minor JE] which was a minor
at the time.
Ground Five: Prosecutorial misconduct;
prosecutor did not provide trial defense counsel with
discovery in a timely fashion. She been had that statement
because the officer talked to [minor JE] the night of the
Ground Six: Prosecutorial misconduct,
prosecutor did not provide defense counsel with all relevant