REPORT AND RECOMMENDATION Petitioner Samuel Harmon ("Petitioner") is a state prisoner who filed this 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)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 8, 9. Petitioner is represented by counsel in this habeas action. On July 27, 2015, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 13, and Respondent filed a Reply on August 6, 2015. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 9, be granted.
Petitioner is currently incarcerated in the South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 2007, Petitioner was indicted at the April term of the Lexington County Grand Jury for possession of firearm or knife during commission of violent crime (2007-GS-32-1440), murder (2007-GS-32-1442), assault with intent to kill ("AWIK") (2007-GS-32- 1443), and assault and battery with intent to kill ("ABWIK") (2007-GS-32-1444). ECF No. 8-4. Wayne Floyd, Esquire, represented Petitioner in a jury trial that convened from May 5-7, 2008, and Solicitor Donnie Myers and Assistant Solicitor Angela Garrick represented the State. App. 1.1 Petitioner was tried before the Honorable R. Ferrell Cothran. Id. After the trial, the jury found Petitioner guilty as indicted. App. 562. Judge Cothran sentenced Petitioner to life imprisonment for the murder conviction, 15 years for the ABWIK conviction, 10 years for the AWIK conviction, and five years for the possession of a weapon during the commission of a violent crime conviction. App. 573-74. The trial court ordered that the sentences run concurrent. App. 574. After his jury trial, Petitioner moved to have his sentences reconsidered, but his Motion was denied. ECF No. 8-13.
Chief Appellate Defender Robert M. Dudek represented Petitioner on direct appeal. App. 576-96. In his appellate brief, Petitioner raised the following two issues:
1. Whether court erred by admitting the statement of co-defendant George Mack where Mack did not testify, since the statement was inadmissible hearsay?
2. Whether it was abuse of discretion to essentially require appellant to concede that Mack's hearsay statement was admissible in return for the jury hearing the public record of co-defendant Mack's conviction for a lesser offense and his sentence under Rule 803(8), SCRE, since the judge had already ruled this public record was inadmissible, and since this placed appellant in an untenable unfair position?
App. 579. Assistant Attorney General Alphonso Simon Jr., filed a brief on behalf of the State. ECF No. 8-6. The South Carolina Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished opinion filed February 24, 2011. App. 639-40. There, the court found Petitioner conceded to the admission of the statement, and he was bound by his trial stipulation. App. 640. Concerning issue two, the court held that Petitioner's concession to the admission ofthe statement waives his direct appeal rights. App. 640. Furthermore, with regards to issue two, the court found the issue was not raised to the trial court and was not preserved for appellate review. App. 640. After the appellate court issued its opinion, Attorney Dudek filed a Petition for Rehearing on Petitioner's behalf. App. 641-649. The court of appeals denied the Petition on April 21, 2011, App. 650-51, and on May 27, 2011, the court issued a Remittitur. App. 652.
Petitioner filed an application for Post-Conviction Relief ("PCR") on August 4, 2011, (2011-CP-32-2954). App. 653-60. In his application, Petitioner alleged he received ineffective assistance of trial counsel and ineffective assistance of appellate counsel for counsel's "failure to prepare and investigate;" "failure to interview and call witnesses;" and "failure to present a viable defense." App. 655. Assistant Attorney General Kaelon E. May filed a Return on behalf of the State. App. 661-665. On November 14, 2012, Petitioner filed an Amended Application for Post-Conviction Relief. App. 692-95. In the amended Application, Petitioner raised the following thirteen ineffective-assistance-of-counsel claims:
1. Trial counsel was ineffective for failing to object to testimony that the Applicant was a member of a gang;
2. Trial counsel was ineffective for failing to object to portions of the Solicitor's closing argument wherein the Solicitor argued that the Applicant committed the crime because he was a gang member;
3. Trial counsel was ineffective for failing to object to testimony by Investigator Eric Russell during the State's case-in-chief that George Mack identified the Applicant as the shooter on hearsay and Confrontation Clause grounds;
4. Trial counsel was ineffective for eliciting testimony from Investigator Russell that Mack identified the Applicant as the shooter;
5. Trial counsel was ineffective for failing to realize that he could move for a mistrial and/or a directed verdict at the close of the State's case based on the State's opening argument that all of the Applicant's co-defendants identified the Applicant as the shooter when Mack did not testify at the trial and his statement should have been excluded;
6. Trial counsel was ineffective for failing to object to the improper admission of prior consistent statements by Investigator Russell that Sherman Davis, Brandon Harmon, Alex Haigler, and James Keitt identified the Applicant as the shooter;7. Trial counsel was ineffective for failing to object to the Solicitor's insertion of himself as a witness during Hope Prick's testimony;
8. Trial counsel was ineffective for failing to move to disqualify the Eleventh Circuit Solicitor's Office following the Solicitor's questioning of Hope Prick regarding the plea agreement that was reached between the Solicitor's Office and Mack;
9. Trial counsel was ineffective for failing to object to the admission of Mack's statement on hearsay and Confrontation Clause grounds;
10. Trial counsel was ineffective for failing to object to portions of Mack's statement referring to the Applicant's neighborhood as a "bad" neighborhood and that "people there all have guns";
11. Trial counsel was ineffective for failing to object to the trial court's charging the jury on the law of accomplice liability;
12. Trial counsel was ineffective for failing to object to the Solicitor's bolstering of the testimony of the Applicant's co-defendants in his closing argument where the Solicitor argued that he would not prosecute the co-defendants for murder since they had given full statements;
13. Trial counsel was ineffective for failing to present testimony that Mack had confessed to an inmate at the Lexington County Detention Center that he fired the assault rifle.
App. 692-93.
A PCR hearing convened on January 31, 2013, before the Honorable R. Lawton McIntosh. App. 696-771. Petitioner was present and represented by Jeremy A. Thompson, Esq., and Assistant Attorney General Karen C. Ratigan appeared on behalf of the State. Id. Petitioner and his trial counsel testified during the PCR hearing. Id. On March 28, 2013, the PCR court denied Petitioner's PCR Application in full, making the following findings of fact and conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court has had the opportunity to review the record in its entirety and has heard the testimony and arguments presented at the PCR hearing. This Court has further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon their credibility. This Court has weighed the testimony accordingly.
Set forth below are the relevant findings of fact and conclusions of law as required by S.C. Code Ann. § 17-27-80 (2003).
Ineffective Assistance of Counsel
The Applicant alleges he received ineffective assistance of counsel. In a PCR action, "[t]he burden of proof is on the applicant to prove his allegations by a preponderance of the evidence." Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002).
For an applicant to be granted PCR as a result of ineffective assistance of counsel, he must show both: (1) that his counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) that he was prejudiced by his counsel's ineffective performance. SeeStrickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006). In order to prove prejudice, an applicant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cherry v. State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989). "A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052).
Trial counsel testified he was appointed in this case and had 5-10 meetings with the Applicant while he was in jail. Trial counsel testified all of the co-defendants identified the Applicant as the shooter. Trial counsel testified the odds were slim that they would win at trial. Trial counsel testified the defense at trial was that the Applicant was not the shooter and the Applicant testified to that effect.
This Count finds trial counsel adequately conferred with the Applicant, conducted a proper investigation, and was thoroughly competent in his representation. This Court notes, however, that the State presented overwhelming evidence of the
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