Kaymani D. West United States Magistrate Judge
Frankie
Lee McGee (“Petitioner”) is a state inmate 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) and Local Civ. Rule
73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on
Respondent's Return and Motion for Summary Judgment. ECF
Nos. 26, 27. On January 25, 2022, pursuant to Roseboro v
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Petitioner of the Summary Judgment Motion, dismissal
procedures, and the possible consequences if he failed to
respond adequately to Respondent's Motion. ECF No. 28. On
February 3, 2022, Petitioner filed a Response in Opposition
to Respondent's Motion for Summary Judgment, ECF No. 31
and Respondent filed a Reply to Petitioner's Response on
February 10, 2022. ECF No. 36.
Having
carefully considered the parties' submissions and the
record in this case, the undersigned recommends that
Respondent's Motion for Summary Judgment, ECF No. 27, be
granted, and this Petition be denied.
I.
Background
The
South Carolina Court of Appeals (“Court of
Appeals”) summarized the facts of this case as follows:
On the night of May 3, 2009, Temika Ashford was visiting
Reverend Tryon Eichelberger at his home in Columbia. They
heard a noise in another part of the
home, and Eichelberger went to investigate. Ashford heard
Eichelberger ask, “[H]ow did you get in here?”
and then a “commotion” and
“hollering.” Because Ashford was afraid, she left
the home, got in her car, and drove away. She drove around
the block, and when she could not reach Eichelberger by
phone, she returned to his house. She saw a husky man with a
potbelly and receding hairline standing on the porch. He was
dressed in a white shirt and jeans, wearing white gloves, and
holding a metal pipe. She called 911, left the house, and
drove down Farrow Road to wait on the police. While she was
waiting, she noticed the man she had seen on the porch
walking along the road, no longer carrying the pipe nor
wearing the gloves. Once the police arrived at the home,
Ashford returned there.
Officer Chauncey Duckett of the Columbia Police Department
was dispatched to the scene. On his way there, while
traveling on Farrow Road, he saw a light-skinned black man
walking, wearing a white or light gray t-shirt and jeans.
Once at the scene, he found Eichelberger lying on the floor
bleeding heavily. Eichelberger's skull was cracked, he
had a brain injury, and he lost a lot of blood. He died three
months later as a result of his injuries. The police
determined a metal tool had been used to pry open a side door
to Eichelberger's home. Officer Duckett found a steel rod
across the street from Eichelberger's home, in Larry
Harp's yard. Officer Duckett also found a pair of white
tube socks next to a light pole about twenty-five to thirty
yards from the steel rod in the direction of Farrow Road. The
socks and rod had blood on them. DNA analysis initially
identified the blood on the items as Eichelberger's.
Further testing revealed McGee's DNA inside the socks as
well. The rod was consistent with the tool marks found at
Eichelberger's home.
On the day of the attack, Harp saw a man he later identified
as McGee in Eichelberger's yard at 3:00 p.m., talking on
the phone and pacing. He saw him again in the yard at about
5:30 p.m. with a plate, napkin, and cup in his hand and
eating, while Eichelberger worked in his garden. Harp
testified McGee was wearing an athletic jersey and denim
shorts and had a medium heavy build and light brown skin.
Around midnight on the night of the attack, the police woke
Harp because they discovered the rod in his yard. Harp
informed the police the rod was not his and he did not know
how it got there. The police later determined the rod was a
winch rod, which is commonly used to tighten straps on a
flatbed trailer.
After Ashford gave the police a description of the man she
observed on the front porch, the police began looking for the
suspect. Police found two men walking together, and one of
them matched the description Ashford had given. Ashford said
the man looked like the person she saw but he was not wearing
the same clothes. However, the man was eliminated as the
perpetrator through more police investigation and DNA
testing. Later, Ashford was shown a series of photographic
line-ups. In them, she saw two pictures she believed looked
like the suspect; one of the two pictures was of McGee. She
identified McGee's picture as the one that most resembled
the man she saw on Eichelberger's porch.
In March 2010, officers visited Michelle Perry, who was a
dispatcher with the cab company at which Eichelberger had
worked. Eichelberger held church services in a building
attached to the cab company's office. Officers showed
Perry a picture of McGee and asked if she recognized him. She
told them she had seen him two different times about a year
before Eichelberger was attacked. The first time she saw him,
he came to one of Eichelberger's church services too
early one morning and waited about twenty-five minutes
outside the office. She saw him again a few days later when
he returned for a Bible study.
On May 2, 2009, the day before Eichelberger was attacked, a
red Peterbilt tractortrailer truck was stolen from a business
in Camden, where McGee lived. The truck was found the
following day about one mile from Eichelberger's home.
The theft was recorded by video surveillance, which was later
broadcast on local news programs. Officer Sandra Thomas of
the Columbia Police Department, McGee's sister, saw the
video, recognized McGee, and contacted Crime Stoppers'
anonymous tip line. The owner of the truck testified it was
used to haul a flatbed trailer and would have contained a
winch bar in its tool box.[1] Police learned McGee had a commercial
license to operate a tractor trailer that could pull a
flatbed trailer, like the one stolen.
On March 17, 2010, officers interrogated McGee while he was
incarcerated on an unrelated offense. McGee denied attacking
Eichelberger but admitted he had been in that area of
Columbia that night. He also said he had gone by
Eichelberger's house that day and been on the porch of
the house. He told the police that due to an athlete's
foot condition, he had taken his socks off while in the area
and left them by a dumpster at a store. He then said he left
the socks by a light pole. McGee denied stealing the truck
from Camden but said he moved a red Mack tractor-trailer
truck[2] while in Columbia. McGee told police he
did not know what a winch rod was. He also admitted he had
told his wife that after a drug dealer pointed a pistol at
him, he hit the drug dealer with it on the night of
Eichelberger's attack. The police were unable to locate
the drug dealer McGee said that he hit.
1An inventory was never performed to determine if
the winch rod was missing from the truck.
2 Peterbilt and Mack are both makers of trucks
that are used to pull tractor trailers.
---------
App. 1393-95.[1]
Petitioner
is currently incarcerated at the Lieber Correctional
Institution of the South Carolina Department of Corrections.
ECF No. 1 at 1. He was indicted at the April 2010 term of the
Richland County Grand Jury for murder and first degree
burglary. App. 1607-1610. Petitioner proceeded to a jury
trial on August 1-3, 8-10, 2011, before the Honorable Clifton
Newman, Circuit Court Judge. App. 27 et. seq. The State was
represented by Assistant Solicitors Kathryn Luck Campbell
Dolly J. Garfield, and Nicole Simpson, and Douglas Strickler
Esq., Fielding Pringle, Esq., and Jennifer Davis, Esq.
represented Petitioner. App. 27. The jury found Petitioner
guilty of murder and first degree burglary. App. 1395. Judge
Newman sentenced Petitioner to 30-years imprisonment on the
burglary charge and life imprisonment for murder. App. 1318.
Petitioner
appealed his convictions and sentences to the Court of
Appeals. On appeal, Petitioner was represented by Appellate
Defender Kathrine H. Hudgins, Esq. of the South Carolina
Commission on Indigent Defense, Division of Appellate
Defense. App. 1320-36. Petitioner filed a Final Brief of
Appellant raising the following issues:
1. Did the trial judge err in admitting identification
testimony based on a single photo line-up that was unduly
suggestive and inherently unreliable?
2. Did the trial judge err in admitting evidence in regard to
the theft of a truck in Camden when the theft does not meet
an exception pursuant to Rule 404(b) and is not sufficiently
linked to the charged crime to constitute res gestae?
App. 1323. Attorney Hudgins filed an Amended Final Brief on
September 9, 2013, raising additional legal arguments. App.
1339-55.
The
Court of Appeals issued a decision affirming Petitioner's
conviction on April 13, 2014. App. 1392-99. Attorney Hudgins
filed a petition for rehearing that the Court of Appeals
denied on June 19, 2014. App. 1400-1402, 1404. Attorney
Hudgins filed a Petition for Writ of Certiorari raising the
following issue:
Did the Court of Appeals err in refusing to find that the
trial judge erred in admitting
identification testimony based on a single photo line-up that
was unduly suggestive and inherently unreliable?
App. 1408. On December 4, 2014, the South Carolina Supreme
Court denied the petition. App. 1446.
Petitioner
filed an application for Post-Conviction Relief
(“PCR”) on May 18, 2014. App. 1447-54. Petitioner
asserted he was being held in custody unlawfully due to
ineffective assistance of trial counsel. App. 1449-51. The
State filed a Return and...
