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Terry v. Stirling

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

September 26, 2019

Gary Dubose Terry, Petitioner,
Bryan P. Stirling, Commissioner, South, Carolina Department of Corrections, and Willie D. Davis, Warden, Kirkland Reception and Evaluation Center, Respondents.


          Richard Mark Gergel United States District Court Judge

         This matter is before the Court on the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 142), recommending that the Court deny Respondent's motion to strike (Dkt. No. 131) and grant Respondents' motion for summary judgment (Dkt. No. 130) on Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 16). For the reasons set forth below, the Court adopts the R & R as the Order of the Court, denies Respondent's motion to strike and grants Respondents' motion for summary judgment.

         I. Background

         The Court adopts the relevant facts and procedural history as outlined in the R & R. (Dkt. No. 142 at 2-17.) The Lexington County Grand Jury indicted Petitioner Gary Dubose Terry in July 1995 for the murder of Urai Jackson and for first degree burglary, first degree criminal sexual conduct, and malicious injury to a telephone system. The State then served notice of intent to seek the death penalty. On September 18, 1997, Petitioner was found guilty on all counts, and on September 21, 1997, the jury found the existence of two statutory aggravating factors, namely, that the murder was committed during a crime of sexual conduct and that the murder was committed during a crime of burglary. The jury recommended that Terry be sentenced to death and the trial judge thereafter sentenced Petitioner to death.

         On March 13, 2000, the South Carolina Supreme Court affirmed Petitioner's convictions and sentence. State v. Terry, 529 S.E.2d 274, 275 (S.C. 2000). The South Carolina Supreme Court denied Petitioner's petition for rehearing on April 19, 2000 (Dkt. No. 39-2 at 52-58), and the United States Supreme Court denied his petition for writ of certiorari on October 2, 2000, Terry v. South Carolina, 531 U.S. 882, 121 S.Ct. 197 (2000).

         On November 30, 2000, through counsel, Petitioner filed his first application for postconviction relief ("PCR"). Petitioner presented twenty-three grounds in his PCR application. (Dkt. No. 39-2 at 205 - 206.) The PCR court held an evidentiary hearing from July 10-12, 2006, and heard testimony from Petitioner's trial counsel (Elizabeth Fullwood and Isaac McDuffie Stone, III), the defense team's investigator, appellate counsel, South Carolina Law Enforcement Division ("SLED") personnel, three of Petitioner's friends and relatives, and a Lexington County Sheriffs Department detective. On February 18, 2009, the PCR court denied Petitioner's PCR application and dismissed it with prejudice. Petitioner filed a motion to alter or amend the PCR court's judgment, which the PCR court denied. Petitioner then filed a petition for writ of certiorari with the South Carolina Supreme Court, which the court granted on November 5, 2010. On August 29, 2011, after briefing and oral argument, the South Carolina Supreme Court affirmed the PCR court's decision. Terry v. State, 714 S.E.2d 326 (S.C. 2011); (Dkt. No. 42-4.) Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which was denied on February 21, 2012. Terry v. South Carolina, 565 U.S. 1206, 132 S.Ct. 1548 (2012); (Dkt. No. 42-7.)

         Petitioner timely filed the present habeas petition on June 29, 2012. (Dkt. No. 16.) On the same day, Petitioner also filed a second application for post-conviction relief in the state courts. (Dkt. Nos. 17; 117.) Based on the second PCR application, Petitioner filed a motion to stay this matter pending resolution of his contemporaneously-filed second PCR application. (Dkt. No. 17.) On December 10, 2012, the Court granted Petitioner's motion. (Dkt. No. 53.) Petitioner's second PCR application was dismissed as successive on June 19, 2018. (Dkt. No. 117-1.) On July 13, 2018 the Court lifted the stay and allowed time for amended briefing. (Dkt. No. 119.)

         Petitioner's habeas petition raises five grounds for relief: 1) Petitioner's trial counsel were ineffective for failing to object on the basis of prosecutorial misconduct to the trial court's exclusion of statements Petitioner made and for failing to concede guilt after informing the jury Petitioner had confessed; 2) Petitioner's trial counsel were ineffective for failing to disclose an actual conflict of interest; 3) Petitioner's trial counsel were ineffective for failing to conduct adequate and appropriate voir dire; 4) Petitioner's trial counsel were ineffective for failing to develop evidence supporting a defense of guilty but mentally ill or to adequately investigate and present mitigating evidence of Petitioner's abusive childhood, and; 5) Petitioner's trial counsel were ineffective in failing to object to or impeach aggravating testimony from Petitioner's ex-wife that he had raped her during their marriage. (Dkt. No. 16.)

         Respondents moved for summary judgment on all grounds and moved to strike certain exhibits Petitioner submitted in support of his petition. (Dkt. Nos. 130, 131.) Petitioner opposed the motions. (Dkt. No. 137.) The Magistrate Judge issued an R & R recommending the Court grant Respondents' motion for summary judgment and deny Respondents' motion to strike. (Dkt. No. 142.) Petitioner filed objections to the R & R regarding Grounds One through Four and the denial of an evidentiary hearing, and Respondents filed a response. (Dkt. Nos. 149, 157.)

         II. Legal Standard

         A. Review of R & R

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court must make a de novo determination of those portions of the R & R Plaintiff specifically objects. Fed.R.Civ.P. 72(b)(2). Where Plaintiff fails to file any specific objections, "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." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). "Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the recommendation." Wilson v. S.C Dept of Corr., No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *1 (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983).

         Petitioner objects to the R & R regarding Grounds One through Four and the recommendation to not hold an evidentiary hearing. (Dkt. No. 149.) Therefore, those portions of the R & R are reviewed de novo. All other portions of the R &R are reviewed for clear error.

         B. Summary Judgment

         To prevail on a motion for summary judgment, the movant must demonstrate that there is no genuine issue of any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The party seeking summary judgment has the burden of identifying the portions of the "pleadings, depositions, answers to interrogatories, any admissions on file, together with the affidavits, if any, which show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court will construe all inferences and ambiguities against the movant and in favor of the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). The existence of a mere scintilla of evidence in support of the non-moving party's position is insufficient to withstand a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 471 U.S. 242, 252 (1986). However, an issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict in favor of the non-movant. Id. at 257.

         "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Id. (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

         C. Habeas Corpus

         i Standard for Relief

         Claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas corpus relief unless the decision was "contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States, " or the decision "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)(1), (2). Section 2254(d) codifies the view that habeas corpus is a '"guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 101 quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White v. Woodall, 572 U.S. 415, 419, 134 S.Ct. 1697, 1702 (2014) (stating that '"[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement'") quoting Harrington, 562 U.S. at 103.

         Therefore, when reviewing a state court's application of federal law, "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, 410 (2000); see also White, 572 U.S. at 419 (describing an "unreasonable application" as "objectively unreasonable, not merely wrong" and providing that "even clear error will not suffice") (internal quotation marks and citation omitted). State court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         ii. Procedural Default

         A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); see also In re Exhaustion of State Remedies in Criminal & Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that "when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies"). To exhaust his available state court remedies, a petitioner must "fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim." Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted).

         Generally, a federal habeas court should not review the merits of claims procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008). For a procedurally defaulted claim to be properly considered by a federal habeas court, the petitioner must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750(1991).

         D. Ineffective Assistance of Counsel

         When claiming habeas relief due to ineffective assistance of counsel at trial, a petitioner must show (1) that his trial counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The Court must apply a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance, " and the errors must be "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington, 562 U.S. at 104. This is a high standard, one in which a habeas petitioner alleging prejudice must show that counsel's errors deprived him "of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Petitioner must show that, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Harrington, 562 U.S. at 112 ("The likelihood of a different result must be substantial, not just conceivable.").

         The Supreme Court has cautioned that "'[s]urmounting Strickland's high bar is never an easytask[, ]'. .. [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Harrington, 562 U.S. at 105 quoting Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland "in tandem, " making the standard "doubly" more difficult. Id. In such circumstances, the "question is not whether counsel's actions were unreasonable, " but whether "there is any reasonable argument that counsel satisfied Strickland's 'deferential standards.'" Id.

         Courts are reluctant to characterize tactical or strategic decisions by trial counsel as ineffective assistance. Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002). A "strong presumption" exists that counsel's actions were the function of trial tactics and not "sheer neglect." Harrington, 562 U.S. at 109. This rule, however, is not absolute where the purported strategic decision is based upon an error or ignorance of the law by trial counsel. Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (omissions based upon "oversight, carelessness, ineptitude or laziness" cannot be explained as "trial strategy"); Ramonez v. Berghuis, 490 F.3d 482, 488 (6th Cir. 2007) (a strategic choice made without a professionally competent investigation of the Petitioner's options is "erected upon ... a rotten foundation" and is not entitled to deference).

         III. Discussion

         A. Ground One

         In Ground One, Petitioner alleges that his trial counsel were ineffective for: (i) failing to object on the basis of prosecutorial misconduct to the trial court's exclusion of two statements Petitioner made and; (ii) for failing to concede guilt after informing the jury Petitioner had confessed during the opening statement. (Dkt. No. 16 at 7.)

         Before trial, Petitioner's counsel moved to suppress a statement Petitioner made to police during the course of the criminal investigation. When police questioned Petitioner on March 24, 1995, the Petitioner gave a statement that he had consensual sex with Urai Jackson and, according to Petitioner, as he began to leave, an argument ensued, which led to Petitioner losing his temper and ultimately beating Ms. Jackson with some "object." (Dkt. No. 37-3 at 78-79.) Petitioner's trial counsel argued Petitioner made the statement involuntarily and had been ill when police interviewed him. The trial court conducted a Jackson v. Denno, 378 U.S. 368 (1964) hearing and found the statement admissible.

         In his guilt-phase opening statement, assuming the State would introduce Petitioner's statement as evidence of guilt, Petitioner's trial counsel informed the jury that Petitioner had confessed to having sex and killing Ms. Jackson, and that Petitioner had confessed to another murder as well, but that his confession was unreliable. The State, however, never moved to admit Petitioner's March 24, 1995 statement in the guilt-phase. When the detective who had taken Petitioner's statement was called as a witness, the State moved to exclude the statement.

         Petitioner's trial counsel argued Petitioner should be permitted to introduce the statement under South Carolina Rule of Evidence 804(B)(3) as a statement against interest because Petitioner, who exercised his right not to testify, was unavailable as a witness. The court ruled Petitioner could not introduce the statement, finding that invoking his right not to testify did not allow Petitioner "to introduce a statement that the State does not put in in its case in chief in order to get around the issue of him not taking the stand."[1] (Dkt. No. 36-4 at 21 - 38.)

         On direct appeal, the South Carolina Supreme Court considered whether the trial court erred "in refusing to permit [Petitioner] to introduce his own statement to police into evidence" and "concur[ed] with the trial court's ruling that [Petitioner] could not use his fifth amendment privilege against self-incrimination as both a sword and a shield." Terry, 529 S.E.2d at 276 - 77.

         In his PCR application, Petitioner asserted trial counsel were ineffective for conceding guilt in the opening statement, focusing on the fact that the March 24, 1995 statement did not confess to murder, only manslaughter, and additionally did not confess to burglary or criminal sexual conduct. (Dkt. No. 39-2 at 205 - 206.) At an evidentiary hearing, Petitioner's PCR counsel questioned his trial counsel and the prosecutors about the trial and any strategy underlying counsel's decisions. The PCR court denied Petitioner's claim. (Dkt. No. 40-4 at 28 - 45.)

         i. Petitioner's Statement and Prosecutorial Misconduct

         On appeal from the PCR court's decision, the South Carolina Supreme Court considered the issue now before this Court: whether trial counsel were ineffective for failing to object to the exclusion of Petitioner's statement based on prosecutorial misconduct or for failing to adjust their strategy and concede guilt after telling the jury Petitioner had confessed. (Dkt. No. 42-4.) The South Carolina Supreme Court affirmed the dismissal of Petitioner's PCR claims. (Id.)

         Importantly, regarding counsel's failure to assert prosecutorial misconduct as a ground for admitting Petitioner's statement, the South Carolina Supreme Court held that:

Trial counsel testified he assumed the State would try to introduce the statement during the guilt phase because the State argued at the Jackson v. Denno hearing that the statement was voluntarily given. He acknowledged, however, that no one from the prosecution team told him affirmatively that the State intended to introduce the statement during the guilt phase.

(Id. at 5.) Additionally, the court noted that, "[o]ne solicitor testified the State decided well before trial not to present petitioner's statement during the guilt phase because it was contrary to what the State sought to prove." (Id.) Therefore, the South Carolina Supreme Court concluded that "there is evidence to support the PCR judge's finding trial counsel were not ineffective.... The solicitor's decision not to present petitioner's statement during its case in chief did not constitute prosecutorial misconduct, but was a matter of trial strategy." (Id.)

         Petitioner asserts the South Carolina Supreme Court's finding constitutes an unreasonable application of federal law, focusing on the court's application of Old Chief v. U.S., 519 U.S. 172 (1997). Specifically, the South Carolina Supreme Court held that

"[I]t is generally recognized that the prosecution and the defense should be afforded wide discretion in the selection and presentation of evidence." State v. Johnson, 338 S.C. 114, 525 S.E.2d 519 (2000).... It is "unquestionably true as a general matter" that "the prosecution is entitled to prove its case by evidence of its own choice ...." Old Chief v. U.S., 519 U.S. 172 (1997).

(Dkt. No. 42-4 at 4 - 5.) Petitioner contends the court oversimplified the issue, misapplied the Supreme Court's reasoning, and ignored relevant cases holding that a prosecutor may not make an "affirmative misrepresentation" regarding the "scope and nature of its case-in-chief which misleads the defense. (Dkt. No. 137 at 5.) Petitioner's ...

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