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Mangal v. Warden, Perry Correctional Institution

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

December 18, 2019

Farid Ahmad Mangal a/k/a Farid Ahmad Maugal, Petitioner,
v.
Warden, Perry Correctional Institution, Respondent.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge.

         The petitioner, a state prisoner, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.

         I. BACKGROUND

         The petitioner is currently incarcerated at Perry Correctional Institution in the South Carolina Department of Corrections (doc. 1 at 1). He was indicted by the Spartanburg County Grand Jury in August 2006 on charges of incest (06-GS-42-2830) and criminal sexual conduct (“CSC”) with a minor in the first degree (06-GS-42-2831). The Grand Jury indicted him in October 2006 for a lewd act or attempt to commit a lewd act upon a child under 16 (06-GS-42-4217), and he was indicted in January 2007 for CSC with a minor in the second degree (06-GS-42-4869) (doc. 20-39). The petitioner was represented by Lawrence W. Crane on these charges. On March 12-15, 2007, the petitioner was tried before the Honorable J. Mark Hayes, and the jury found him guilty as charged (app. 1-533).[1] On March 16, 2007, Judge Hayes imposed concurrent sentences of 30 years imprisonment for CSC with a minor in the first degree, 20 years imprisonment for CSC with a minor in the second degree, 15 years imprisonment for lewd act on a minor, and one year imprisonment for incest. Judge Hayes also ordered that the petitioner receive credit for time served (app. 534-55).

         A. Trial in Underlying Case

         The petitioner was found guilty of committing various acts of sexual misconduct against his biological daughter, spanning approximately six years and beginning when she was ten years old (see app. 531-32). The State called the victim as the first witness. She testified that when she was ten years old, the petitioner “told me that he was gonna explain what sex was to me and that he was gonna show me what ... I shouldn't allow other people to do to me.” The petitioner sexually assaulted her and told her it would not happen again, but it happened again the next day (app. 10-14). The victim further testified that the petitioner told her that her mother would not believe her if she reported the incidents. Instead, it would embarrass her and the entire family. Several years later, he threatened to kill the whole family if she ever told anyone about the sexual assaults. Even when other people were in the room with them, he would grab and touch her on her breasts, legs, and “behind.” He would also force her to bathe in front of him, and he would wash her (app. 14-15). The victim testified that the sexual abuse “happened many times over the six years” and only ended when she was 16 years old. She could not recall the specific number of times that the petitioner abused her, but she testified, “When it first started it was pretty much every single day I came home from school.” He continued to assault her once or twice a week until she was in the middle of the tenth grade (app. 15-16). The victim testified that the house was more peaceful if the victim complied with his demands, and he would yell at her mother and her brothers when she did not. Also, he would call her mother a “whore” and call the victim's brother names such as "fat ass" and "bastard." She felt that she had to comply with his demands to prevent him from abusing them (app. 19-20).

         The victim testified that although the petitioner did not fully penetrate her during many of the assaults because he was concerned that she might get pregnant, he fully penetrated her on several occasions. The first time he fully penetrated her occurred when she was 13 or 14 years old (app. 18-21). The victim testified that the last time that the petitioner abused her was on the night before her mother had neck surgery. She refused because her mother was in the next room. He punished her brothers the next day because she had rejected him (app. 28-29). The first person to whom she disclosed the abuse was her brother, Rashan. The victim testified:

My brother Rashan was the first person I told because after he went to bed that night that my dad had hit him, I went in there and I was very upset because he had come in there and called me a whore ..... And I told Rashan I had something to tell him because ... I didn't feel it was fair that they had to live in misery because ... I felt like it was my fault. .... I didn't really tell him upright. He guessed ... what was going on. I mean it took him a while because I didn't want, I didn't want to tell him and my main reason for not wanting to tell him was because I didn't want my mom to find out. [M]y mom had had it hard enough. My mom's had a very hard life and my dad was never good to her, and I grew up watching that, and I didn't want to be another burden on her shoulders. And Rashan told me if I didn't tell her that he would.

(App. 29-30). The victim told her mother the following day that the petitioner had been sexually abusing her for six years (app. 30-31).

         On cross examination, the victim testified that the petitioner was very strict. He would take her straight home from school, where she had to do chores, she could not use the telephone, could not have friends over to the house, she could not go out, and she could not celebrate Christmas. Moreover, she was staying in the dining room at the time of the petitioner's arrest, and she did not like this. Also, the petitioner tried to arrange her marriage to a cousin. Although she denied that this was the reason she accused her father, she admitted that things got better after his arrest, and, within about four months after his arrest, she began smoking and drinking, and she had a college-age boyfriend (app. 61-65, 73). The victim confirmed that when she talked to counselors form the Children's Advocacy Center she did not tell them about getting suspended from school in November 2002 for having oral sex with another student (app. 66). The petitioner's trial counsel also questioned the victim about discrepancies between her family court testimony and her testimony at trial as to the time periods during which different types of sexual abuse occurred (app. 70-71).

         The victim's brother, Rashan, testified that the petitioner "verbally and physically" abused the family and that he hit the victim with an extension cord. Also, he called her names, such as “slut and bitch and whore” (app. 92-93; 103). Rashan confirmed that his mother was working during the day during this time period and that the petitioner would usually pick up the victim after school. He confirmed that his sister reported the abuse to their mother (app. 95-97). He also testified:

I would see [the petitioner and [the victim] go in her room or maybe I . . . just didn't know where they were, and . . . couldn't find them. So, I'd go and I'd knock on the door, on his or her door . . . and I jiggled the door handle and it was locked. And I asked ... is anybody in there and he would answer. He said we're talking, just go away, and, you know, the door was locked. So, I didn't understand. You know, if he had something to yell at her about or say to her, he usually just did it out in the open.

(App. 97-98). He explained that the victim and the petitioner would be behind closed doors for 20 or 30 minutes at a time. When they came out, she would be "visibly upset, crying, and she [would] just head to the bathroom." However, he never heard them fighting over anything. He saw this happen roughly 20 or 30 times over the years (app. 98). Further, the petitioner installed a keyed lock on his bedroom door around 2000 or 2001, and the State introduced photographs of the lock (app. 100, 107).

         The State also presented the testimony of Wiley Garrett, a licensed independent social worker, who conducted two forensic interviews of the victim. He was qualified by the trial judge as an expert “in the area of forensic interviewing to give opinion testimony in that area” (app. 119-22). On direct examination by the State, he testified that one of his “ultimate purpose[s]” in conducting forensic interviews is to determine whether a child has made “a clear[, ] consistent disclosure, ” and he confirmed that part of the process is “to determine whether there's fabrication” (app. 12-24). Garrett interviewed the victim twice in July 2004 at the Children's Advocacy Center in Spartanburg, South Carolina (app. 117, 125, 129). The victim-who was 16 years old at the time of the interview-disclosed to him that she had been sexually assaulted multiple times beginning at age ten and that this happened in her parents' bedroom (app. 125-26). Garrett testified that the victim's disclosure was a “clear, consistent, and compelling disclosure of sexual abuse” (app. 130). On cross examination, Garrett conceded that he had cases where 16 year old girls had lied about being sexually abused, and he did not speak to the petitioner about the allegations against him (app. 139-43). Garrett also testified that at the time he did his assessment, he had not been told by the victim or her mother that the victim had been suspended from school for allegedly engaging in oral sex with another student nor had he been told of other issues the victim had at school (app. 138-42).

         Dr. Nancy Henderson, a board certified pediatrician whose practice focused on the diagnosis of child abuse, including sexual abuse, also testified for the State. The trial judge found her qualified as an expert “in the examination, diagnosis, and treatment of child sexual abuse” (app. 147-53). She performed a medical examination of the victim on July 9, 2004, which revealed an abnormality of the hymen, which she explained as follows:

A: And the way I would describe it, it's called a crescent shape hymen because it has - it appears like a crescent shape moon. Sometimes in the normal changing it can be called angular where it goes all the way around. But because it kind of stops at this point up here it's called a crescent shape.
And we label things like a clock. So this is twelve o'clock, six o'clock, three o'clock, and nine o'clock. And so, on her exam right, right at about eight o'clock, right at this point, right at this point here, the hymen tissue looked very, very normal until you get to this point, and she had mark narrowing at that point and then it resumed very normal to the, to the rest of her exam. And there was just a tiny bit of discharge, a thin white amount of discharge, which without doing cultures it's hard for me to make any kind of judgment of that. We didn't look too concerned just looking at it. But this was the finding that I had.
Q: What does narrowing at eight o'clock mean?
A: Typically the [hymeneal] tissue is pretty uniform, and pretty consistent all the way around. So, when you see marked narrowing - now, it normally, in some children, you can see a lot of variations especially when you get to adolescence. There can be a lot of changes because they have a lot of estrogen around and that causes a lot of flexibility to the [hymeneal] tissue.
But when you see where the [hymeneal] tissue is almost completely diminished at that one point, that's a sign of some type of penetration through the [hymeneal] tissue.

(App. 158-59). Dr. Henderson further testified, “Based on the history that [the victim] shared with me and based on my examination I felt that it was consistent with a, that she had been abused” and that it was her opinion that the victim “was sexually abused” (app. 159).

         On cross examination, Dr. Henderson testified that her report did not indicate “consistent” with sexual abuse, but instead indicated “suspicious” of sexual abuse, because the report was based on the physical examination, but her testimony was based on the history the victim provided as well (app. 161-63). Dr. Henderson elaborated that “based on the history that Victim shared, and she denies any other kind of trauma to that area . . . my conclusion is . . . as I stated” (app. 163). When asked whether she based her testimony on possible untrue information from the victim, Dr. Henderson replied, “I based it on the information received by my patient, which is invaluable information any doctor receives when they are examining a patient” (app. 164). When asked whether she assumed that what the victim told her was true, Dr. Henderson responded, “Based on the way she shared it and all the information that she shared, yes” (app. 164).

         Defense counsel called Dr. Medlock as an expert witness (app. 209-51). He was the Mangal family's treating physician for many years. He testified that a record from an examination on January 2, 2002, indicated that the victim's hymen was still intact, and it was his “interpretation” that “if [the hymen] is [intact], ... it would indicate there's not been sexual activity” and that “if the vagina had been penetrated [he] would expect the hymen to ... not be intact” (app. 227-28, 246-47; doc. 79). Dr. Medlock testified that the victim "denie[d] sexual activity" during a visit on October 20, 2003, and the victim's "[r]ectal examination reveal[ed] external examination was in normal limits” (app. 224). Dr. Medlock testified that a note dated September 30, 2004, in the victim's medical records, made by another physician in his practice, reflected that she suffered from “[post-traumatic] stress secondary to sexual abuse.” He explained that this finding was “an impression or a presumptive diagnosis ... [taking] what the patient tells you, history, and then you do a physical examination. And from that you come to an impression or make a presumptive diagnosis” (app. 241-51). Dr. Medlock further testified that he had known the petitioner for years, the petitioner had done construction work for him, the petitioner had a good reputation, and he could not believe the petitioner “would be guilty of that sort of thing” (app. 226-227; doc. 79).

         The victim's mother, Diane, was called by trial counsel as a defense witness (app. 253-54, 256).[2] She testified on direct examination that the victim had never complained to her about sexual abuse before June 15, 2004, and she never saw anything that caused her to suspect that the victim was being abused (app. 266-67). She attributed any blood that she saw on the victim's underwear to the victim's menstrual cycle, since the victim had her first period at age nine (app. 267-68). Also, the petitioner went on a trip to Germany in January 2004 to visit his brothers. He was out of the country for four weeks, but the victim did not report alleged abuse in his absence (app. 268-69). Later, on direct examination, the victim's mother testified that her daughter told her on June 15, 2004, that the petitioner “had been molesting her since she was ten” (app. 276). She testified that when the petitioner was arrested, she gave the police a statement indicating the victim had disclosed the abuse to her but the victim stated she had not allowed penetration or oral sex (app. 276-79). During an examination as to precisely when the victim made this disclosure, the mother twice testified, “I am telling the truth in what I'm saying . . . that my child was violated” (app. 281). She testified that when she confronted the petitioner with what the victim had told her, the petitioner immediately denied abusing the victim and accused the victim of lying to “make trouble” (app. 291-92). The victim's mother testified that Garrett had asked her whether her children lie. The victim's mother testified that she told Garrett, “Sir, I believe everyone lies. I would say that my children are, are usually truthful . . . ” (app. 284). She told Garrett that the only trouble the victim had gotten into at school was for drinking alcohol, and she did not report that the victim had been suspended from school for having oral sex with another student (app. 284-85). The victim's mother testified that the petitioner had a mole or freckle on the head of his penis, and not on the shaft, as the victim had testified. Also, trial counsel introduced into evidence the victim's mother's drawing of the petitioner's penis (app. 296-99).

         The State's cross examination of the mother established that she had seen the petitioner slap, punch, and kick her children, as well as call them names, referring to the victim as “whore” and “slut, ” while he referred to his sons as “bastards.” The victim's mother testified that she did not report this physical abuse because the petitioner “promised me if I ever had told anybody about what went on in our house, if I ever tried to stand up for my children as far as taking them [away] from the abuse . . . he would rather see their dead bodies laying out in front of him” (app. 307-08). She further testified that the petitioner physically abused her (app. 308-09). When asked whether she believed the victim when the victim told her about the abuse, the victim's mother stated, “ Yes, ma'am, I did, and I still do.” She was then asked why she believed the victim, and the victim's mother testified, “Because she's my child.” The victim's mother continued, “She had . . . no reason to lie about something like that. . . . [I]f anybody could of seen the level of how distraught she was, the look in her eyes, the begging, please help me, that's why I believed her” (app. 314).

         The petitioner testified in his own defense and denied the allegations of abuse (app. 369-72). He testified that he had discovered a boy in the victim's bedroom one night. This boy was someone that he did not want her to see, and that was why he made her sleep in the dining room (app. 343-54). On cross examination, he denied taking his children behind a closed door to discipline them. He admitted that he had installed an exterior “steel” lock on his bedroom door that required a key (app. 381-82). On redirect, he testified that he had installed the lock because his children would sneak into his room and steal money and cigarettes (app. 394).[3]

         B. Direct Appeal

         The petitioner timely served and filed a notice of appeal. He was represented by Assistant Appellate Defender LaNelle C. Durant. He filed a final brief of appellant on June 5, 2008, raising the following issue: “Did the trial judge err in failing to grant a mistrial after the State cross examined a witness for the defense on Appellant's prior DUI convictions as character evidence?” (doc. 20-12 at 6). The State filed a final brief of respondent on May 30, 2008 (doc. 20-13).

         The Court of Appeals of South Carolina affirmed the petitioner's convictions and sentence on March 4, 2009 (doc. 20-14). The petitioner filed a timely petition for rehearing on March 19, 2009 (doc. 20-15). The Court of Appeals filed an order denying the petition on May 4, 2009 (doc. 20-16).

         On June 3, 2009, the petitioner filed a petition for writ of certiorari. He presented the following issue to the Supreme Court of South Carolina: “Did the Court of Appeals err by affirming the trial court which denied a mistrial after the State cross examined a witness for the defense on Appellant's prior DUI convictions as character evidence?” (doc. 20-17). The State filed a return to petition for writ of certiorari on June 30, 2009 (doc. 20-18). On December 17, 2009, the Supreme Court of South Carolina filed an order denying certiorari (doc. 20-19). The Court of Appeals sent the remittitur to the Spartanburg County Clerk of Court on December 22, 2009 (doc. 20-20).

         C. PCR

         On January 6, 2010, the petitioner filed a pro se application for post conviction relief (“PCR”) (2010-CP-42-0080), alleging the following grounds for relief:

1. Ineffective assistance of trial counsel, in that:
a. "Failure to preserve direct appeal issue,"
b. "Trial counsel failed to investigate [documentary] evidence and witnesses, ”
c. "Trial counsel fail to make an additional object[ion] to the sufficiency of the curative charge or move for a mistrial;” and
2. Ineffective assistance of appellate counsel.

(App. 557-62). The State filed its return on May 12, 2010 (app. 563-67).

         On April 4, 2011, the Honorable J. Derham Cole held an evidentiary hearing. The petitioner was present at the hearing, and he was represented by J. Falkner Wilkes. Assistant Attorney General Suzanne H. White represented the State. The petitioner testified on his own behalf at the hearing. He also presented testimony from trial counsel Crane (app. 568-623).

         Judge Cole denied relief and dismissed the application with prejudice in an order of dismissal filed on January 10, 2012 (doc. 20-21). The order of dismissal addressed the petitioner's claims that (1) trial counsel was ineffective in failing to investigate additional evidence and witnesses for trial; (2) trial counsel was ineffective for failing to preserve an issue for appeal regarding the improper introduction of character evidence during Dr. Medlock's testimony, when counsel failed to also object to the judge's curative instructions; (3) trial counsel was ineffective for failing to effectively cross examine witnesses, particularly the victim; (4) trial counsel was ineffective for not objecting to several jurors with biases; and (5) appellate counsel was ineffective for failing to include sufficient matter in the designation of matter on appeal for the Court of Appeals to consider the issue presented (app. 616-22).

         On January 20, 2012, the petitioner's PCR counsel filed a motion to alter or amend judgment, pursuant to Rule 59(e), SCRCP (app. 623-33). One of the issues raised in the motion was that the PCR court failed to make sufficient specific findings of fact or rulings of law on the issue of whether trial counsel was ineffective in failing to object to the testimony of Dr. Henderson as bolstering or vouching for the victim's veracity (app. 630-31). The State made a return to the motion on February 10, 2012 (app. 634-38). On July 9, 2012, Judge Cole denied the motion, finding that “[a]lthough Applicant alleges that the issues in the Motion were raised in the hearing, but not properly ruled upon by this Court, this Court finds that the issues were not presented to the Court in the application or in an amendment and no evidence from the Applicant was presented in support of these allegations” (app. 639-40).

         D. PCR Appeal

         In August 2012, the petitioner's PCR appellate counsel, John R. Ferguson, timely served and filed a notice of appeal. On January 23, 2013, counsel filed a petition for writ of certiorari, raising the following questions for review:

I. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO THE STATE'S BOLSTERING OF ITS WITNESSES?
II. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO MOVE FOR A MISTRIAL IN RESPONSE TO THE STATE'S BOLSTERING OF ITS WITNESSES?
III. WAS TRIAL COUNSEL'S PERFORMANCE TAKEN AS A WHOLE DEFICIENT AND PREJUDICIAL TO APPELLANT?
IV. WAS THE POST-CONVICTION RELIEF COURT IN ERROR IN FINDING THAT THE BOLSTERING ISSUE WAS NOT RAISED?
V. WAS PCR COUNSEL INEFFECTIVE FOR NOT SUFFICIENTLY RAISING THE BOLSTERING ISSUE?

(Doc. 20-23). The State filed a return to the petition on April 21, 2013 (doc. 20-24), and the petitioner filed a reply on April 26, 2013 (doc. 20-25). On September 30, 2014, the Court of Appeals of South Carolina filed an order granting certiorari (doc. 20-26).

         On January 21, 2015, the petitioner's counsel filed a brief of petitioner, presenting the following issues on certiorari;

I. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO THE STATE'S BOLSTERING OF ITS WITNESSES?
II. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO MOVE FOR A MISTRIAL IN RESPONSE TO THE STATE'S BOLSTERING OF ITS WITNESSES?
III. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO THE QUALIFICATION OF A FORENSIC INTERVIEWER AS AN EXPERT?
IV. WAS TRIAL COUNSEL'S PERFORMANCE TAKEN AS A WHOLE DEFICIENT AND PREJUDICIAL TO APPELLANT?
V. WAS THE POST-CONVICTION RELIEF COURT IN ERROR IN FINDING THAT THE BOLSTERING ISSUE WAS NOT RAISED?
VI. WAS PCR COUNSEL INEFFECTIVE FOR NOT SUFFICIENTLY RAISING THE BOLSTERING ISSUE?

(App. 641-52). The State filed a brief of respondent on April 24, 2015 (app. 653-72), and the petitioner filed a reply on May 1, 2015 (app. 673-79).

         On December 30, 2015, the Court of Appeals filed a published opinion reversing the PCR court and granting relief (app. 680-88). See Mangal v. State, 781 S.E.2d 732 (S.C. Ct. App. 2015) (“Mangal I”), rev'd, 805 S.E.2d 568 (2017). With regard to the claim that trial counsel was ineffective for failing to object to improper bolstering testimony, the Court of Appeals found that, as it related to Dr. Henderson's testimony, the PCR judge “erred in finding the bolstering issue was not raised because PCR counsel questioned trial counsel on the subject, and PCR counsel raised the issue again in his Rule 59(e), SCRCP, motion.” Id. at 735. However, the court found that any bolstering issues “related to other witnesses” were “unpreserved.” Id. at 735-36. The Court of Appeals further found that Dr. Henderson's testimony improperly bolstered the victim's credibility such that trial counsel's failure to object constituted deficient performance, and the petitioner was prejudiced by counsel's error as “the case lacked physical evidence and hinged on credibility.” Id. at 737 (citations omitted).

         The State filed a petition for rehearing on January 11, 2016 (app. 689-705). On January 20, 2016, the petitioner filed a response to the State's petition (app. 706-09). The Court of Appeals denied rehearing on February 22, 2016 (app. 710).

         On April 11, 2016, the State filed a petition for writ of certiorari, raising the following issue:

Did the court of appeals err in reversing the PCR judge's finding that counsel was not ineffective for failing to object or move for a mistrial in response to bolstering testimony given by Dr. Henderson where the PCR judge never made such a ruling and where the court of appeals considered testimony that was not raised at the evidentiary hearing or in the motion to alter or amend?

(Doc. 20-27). On May 4, 2016, the Solicitor's Association of South Carolina submitted a brief of amicus curiae (doc. 20-28). On June 16, 2016, the Supreme Court of South Carolina filed an order granting certiorari to review the Court of Appeals' decision. The order provided that “[t]he parties shall proceed to serve and file the appendix and briefs as provided by Rule 242(i), SCACR” (doc. 20-29). John R. Ferguson and C. Rauch Wise represented the petitioner, as the respondent, in the Supreme Court of South Carolina.

         On July 18, 2016, the State filed a brief of petitioner, presenting the following issues for review:

I. Whether the Court of Appeals err[ed] in reversing the PCR judge's finding that counsel was not ineffective for failing to object or move for a mistrial in response to alleged bolstering testimony where the PCR judge never made such a finding and where the court considered testimony that was not raised at the PCR hearing or in Respondent's motion to alter or amend.
A. Whether the Court of Appeals erred in finding that the bolstering issue was preserved with respect to any of Dr. Henderson's testimony.
B. Whether, even if this Court finds the bolstering issue was preserved, it was only preserved to the extent it was raised to the PCR judge, and in making its finding that counsel was ineffective, the Court of Appeals was not entitled to consider any other portion of Dr. Henderson's testimony.
C. Whether the Court of Appeals erred in finding counsel was ineffective for not objecting to alleged bolstering where Dr. Henderson's direct examination testimony did not constitute bolstering, counsel had a valid trial strategy in eliciting her testimony on cross-examination in an attempt to further discredit Victim, and there is no reasonable probability that the outcome would have been different had counsel objected.

(Doc. 20-30).

         The South Carolina Network of Children's Advocacy Centers and the University of South Carolina Children's Law Center were permitted to participate as amicus curiae and filed a brief in support of the petitioner state of South Carolina, which the Supreme Court of South Carolina received on July 18, 2016 (doc. 20-31). The petitioner filed a brief of respondent on September 28, 2016 (doc. 20-32), and the State filed a reply on October 11, 2016 (doc. 20-33).

         Following briefing and oral arguments by the parties and the amicus curiae, the Supreme Court reversed the Court of Appeal's judgment and reinstated the PCR judge's order denying PCR. See Mangal v. State, 805 S.E.2d 568, 576 (2017) (“Mangal II”).[4]The Supreme Court found that the PCR court acted within its discretion in refusing to address the improper bolstering regarding Dr. Henderson and further found that this was “not an appropriate case to excuse Mangal from his procedural default.” Id. at 571-75. The remittitur was issued on October 20, 2017, and was filed on October 23, 2017 (doc. 20-38).

         II. FEDERAL PROCEEDINGS

         A. Petition

         On January 8, 2018 (doc. 1-4),[5] the petitioner, proceeding pro se, filed a Section 2254 petition in this court, alleging as follows

Ground One: Petitioner was denied a fair trial when the trial court and State Appellate Court failed to grant a mistrial motion after the State cross-examined a defense witness regarding Petitioner's prior DUI conviction as character evidence.
Ground Two: (A) Petitioner was denied the effective assistance of counsel when counsel failed to object to the State's improper bolstering of [its] own witness. (B) Petitioner was denied the effective assistance of counsel when counsel failed to move for a mistrial when the State improperly bolstered [its] own witnesses testimony. (C) Petitioner was denied his constitutionally guaranteed right to the effective assistance of counsel when counsel's performance taken as a whole was deficient performance that unduly prejudiced Petitioner. (D) The State [courts] erred in finding that the bolstering issue was not raised. (E) Any procedural default by PCR Counsel for failing to sufficiently raise the State's improper bolstering issue is excused by Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309 (2012).
Supporting Facts: The alleged victim was Petitioner's teenage daughter, . . . with whom Petitioner had a strained relationship with due to his [strict] parenting. [Victim] testified that Petitioner had begun committing lewd acts on her when she was ten years old and had allegedly raped her multiple times. [Victim] testified that Petitioner had taken her virginity, however, later examination by a physician established that her hymen was intact. . . .
Wiley Garrett, (hereafter "Garrett") a forensic interviewer for the Children's Advocacy Center, testified without objection from counsel that when Garrett interviewed [Victim] he found her account to be a "clear consistent, and compelling disclosure of sexual abuse." Garrett testified that [Victim] told him the sexual abuse became once a week when she turned 15. Garrett's report stated that [Victim] [told him] that Petitioner had sex with her three to four times a week after she was ten years old.
Dr. Nancy Henderson (hereafter “Henderson”) testified for the State. Henderson testified that [Victim] retained her hymen, although there was a thin spot which could not definitely say resulted from sexual intercourse. Nevertheless Henderson classified it that way based on what [Victim] told her. Without objection Henderson testified that the information she received from [Victim] was invaluable, ...

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