Terry v. Stirling
| Decision Date | 26 September 2019 |
| Docket Number | Civil Action No. 4:12-1798-RMG |
| Parties | Gary Dubose Terry, Petitioner, v. Bryan P. Stirling, Commissioner, South, Carolina Department of Corrections, and Willie D. Davis, Warden, Kirkland Reception and Evaluation Center, Respondents. |
| Court | U.S. District Court — District of South Carolina |
This 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 judgment.
The 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.
On 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).
On November 30, 2000, through counsel, Petitioner filed his first application for post-conviction 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 Sheriff's 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.)
Petitioner 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 thismatter 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.)
Petitioner's 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.)
Respondents 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.)
The Magistrate Judge makes only a recommendation to this Court that has no presumptiveweight. 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).
Petitioner 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.
To 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 themovant 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., 477 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.
"When 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)).
Claims 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 precludesfederal 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) (...
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