REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE This matter is before the Court on Respondent's motion for summary judgment [Doc. 23] and Petitioner's motion to expand the record [Doc. 45]. Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) 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.
Petitioner filed this Petition for writ of habeas corpus on June 19, 2014.1 [Doc. 1.] On November 19, 2014, Respondent filed a motion for summary judgment and a return and memorandum. [Docs. 22, 23.] On November 20, 2014, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 25.] Respondent filed additional attachments to the main document on November 20, 2014. [Doc. 27.] On March 2, 2015, Petitioner filed a response inopposition to the motion for summary judgment [Doc. 43] and a motion to expand the record [Doc. 45]. Respondent filed a response in opposition to the motion to expand the record on March 19, 2015. [Doc. 46.]
Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted and Petitioner's motion to expand the record be denied.
Petitioner is incarcerated in the McCormick Correctional Institution of the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Court for Richland County. [Doc. 1 at 1-2.] Petitioner was indicted in December 1997 for murder, armed robbery, robbery, and possession of a knife during the commission of a violent crime. [App. 2752-57.2] On August 23, 1999, represented by Douglas S. Strickler ("Strickler"), I.S. Leevy Johnson, and Tommy Evans, Petitioner proceeded to trial. [App. 1-2590.] At the conclusion of the trial, the jury returned a verdict of guilty on all charges. [App. 2586-87.] Petitioner was sentenced to a term of confinement of his natural life for the murder charge, 30 years for the armed robbery charge, and five years for the possession of a knife during the commission of a violent crime charge, all to run consecutively. [Doc. 22-10.]
Petitioner appealed his conviction. Joseph L. Savitz of the South Carolina Office of Appellate Defense filed an Anders3 brief on Petitioner's behalf in the South Carolina Court of Appeals, dated February 26, 2002, raising the following issue:
The judge erred by allowing into evidence a pair of shorts seized from appellant's residence which were shown to be stained with the victim's blood, because this evidence was the fruit of a warrantless arrest which violated the Fourth Amendment.
[App. 2591-601.] At the same time he filed the Anders brief, Savitz submitted a petition to be relieved as counsel. [App. 2601.] Petitioner filed a pro se brief, dated February 26, 2002, raising the following issues, quoted substantially verbatim:
I. The trial court erred by refusing a directed verdict of acquittal on the charges of murder, armed robbery, and possession of a knife during the commission of a violent crime, since the state failed to introduce any evidence placing the appellant at the scene during the commission of the crime and the state failed to introduce any substantial circumstantial evidence which reasonably tended to prove the guilt of the appellant.
II. The trial court clearly erred by not suppressing illegally seized evidence in clear violation of appellant's 4th Amendment and South Carolina Art. 1 §10. Which guarantees him the right of privacy.
[App. 2602-17.] Petitioner filed a motion for leave to supplement the pro se brief of appellant, dated August 7, 2002, in which Petitioner raised the following issues, quoted substantially verbatim:
Issue-I
Court erred in denying motion for mistrial and abused his discretion due to the fact that the states witness testimony was so prejudicial that it was impossible for appellant to receive a fair and impartial trial.
Issue-II
The court erred when it confused the jury on its reasonable doubt instruction to the extent that a reasonable juror in interpreting the charge as a whole allowed the finding of guilt to be based upon degree of proof below that which is required by the due process clause and the Fourteenth Amendment of the United State Constitution.
Issue-III
Trial judge erred in alternating the reasonable doubt charge given the jury after defendant had given his closing argument in reliance upon the original charge.
[Doc. 22-14.] On February 4, 2003, the South Carolina Court of Appeals dismissed Petitioner's appeal and granted counsel's motion to be relieved. [App. 2618-19.] Petitioner filed a pro se petition for rehearing, dated March 4, 2003 [Doc. 27], which was denied [Doc. 25-15]. Remittitur was issued on May 13, 2003. [Doc. 22-16.]
On April 14, 2003, Petitioner filed a pro se application for post-conviction relief ("PCR"), in which he alleged he was being held in custody unlawfully based on the following grounds:
(a) Ineffective Assistance of Counsel.
(b) Ineffective Assistance of Appellate Counsel.
(c) Denial of Due Process.
[App. 2621.] In support of his grounds for relief, Petitioner provided the following facts, quoted substantially verbatim:
(a) See attached
(b) See attached
(c) See attached
[Id.] In his attachment in support of his grounds for relief, Petitioner provided the following, quoted substantially verbatim:
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1. Counsel was ineffective in failing to request a Batson hearing due to the solicitor striking of black jurors at trial
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2. Counsel was ineffective in failing to object to the trial court's dismissal of a potential juror.
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3. Counsel was ineffective in failing to object to hearsay testimony of Kendall Adams.
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4. Counsel was ineffective in failing to articulate a valid Fourth Amendment claim regarding the search and seizure of applicant's room and the admission of 'bloody shorts' allegedly obtained during the search.
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5. Counsel was ineffective in failing to object to the trial courts dismissal of venirperson(s).
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6. Counsel was ineffective in failing to object and request instructions regarding the impeachment testimony of Khadijah Shabazz.
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7. Counsel was ineffective in failing to object to the burden shifting malice instruction.
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8. Counsel was ineffective in failing to request a jury instruction regarding 'actual process' requiring the State to prove 'presence' beyond a reasonable doubt.
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9. Counsel was ineffective in failing to object to the trial courts failure to instruct the jury upon receiving jurys' note requesting applicable law of 'accomplice liability.'
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10. Counsel was ineffective in failing to object to trial courts prejudicial reasonable doubt instruction.
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11. Counsel was ineffective in failing to object to the trial court's refusal to allow counsel to argue that Dock Miles was the actual perp[e]trator of the alleged crimes (limiting closing argument).
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12. Appellate Counsel was ineffective in failing to raise trial court's error in failing to grant directed verdict.
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13. Appellate Counsel was ineffective in failing to raise issue regarding the trial court's error in failing to grant mistrial due to the prejudicial statements of (Ciciley Holmes).
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14. Appellate Counsel was ineffective in failing to raise trial court's error in not suppressing introduction of shorts into evidence.
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15. Appellate Counsel was ineffective in failing to raise issue regarding trial court's error in failing to instruct applicable law regarding jury note.
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[App. 2625-39.] The State filed a return, dated June 7, 2004. [App. 2640-45.]
A hearing was held on November 17, 2005, at which Petitioner was represented by Charlie J. Johnson, Jr. [App. 2646-713.] At the hearing, Petitioner submitted an amended memorandum in support of his PCR application raising the following issues, quoted substantially verbatim:
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Ineffective Assistance of Trial Counsel
Issue-1- Counsel was ineffective for failing to object to ex-parte communication with jury
Issue-2- Counsel was ineffective for failing to properly preserve contents of jury note on record for appellate review
Issue-3- Counsel was ineffective for failing to object to the non-presence of the applicant during the reading of the note
Issue-4- Counsel was ineffective for failing to object to shackling of applicant during trial
Issue-5- Counsel was ineffective for failing to request a jury instruction regarding 'actual presence'requiring the state to prove presence beyond a reasonable doubt
Issue-6- Counsel was ineffective for failing to inform applicant of his right to allocution
Issue-7- Counsel was ineffective for failing to object to the burden-shifting malice charge instruction
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Ineffective Assistance of Appellate Counsel
Issue-1- Appellate was ineffective for failing to raise trial courts prejudicial altering of reasonable doubt charge to the jury
Issue-2- Appellate counsel was ineffective for failing to raise trial courts error to grant directed verdict
Issue-3- Appellate counsel was ineffective for failing to raise issue regarding trial courts error in failing to grant mistrial due to the prejudicial statements of Cicely Holmes
Issue-4- Appellate counsel was ineffective for failing to raise a meritorious argument as to the introduction of evidence of the knife in the applicants trial
Issue-5- Denial of due process
[App. 2715-37 (citations omitted).] On January 28, 2011, the PCR court filed an order vacating the sentence for possession of a knife during the commission of a violent crime and denying and dismissing the PCR...
