United States District Court, D. South Carolina, Florence Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
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
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.
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).
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.)
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.)
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.)
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.)
Review of R & R
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).
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.
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.
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)).
Standard for Relief
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.
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).
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).
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).
Ineffective Assistance of Counsel
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.").
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
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).
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.)
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
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.
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." (Dkt. No. 36-4 at 21 - 38.)
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 -
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.)
Petitioner's Statement and Prosecutorial Misconduct
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.
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.)
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 ...