Wood v. Stirling, C/A No. 0:12-cv-3532-DCN-PJG

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtPaige J. Gossett UNITED STATES MAGISTRATE JUDGE
Decision Date01 October 2018
PartiesJohn R. Wood, Petitioner, v. Bryan P. Stirling, Commissioner, South Carolina Department of Corrections, Willie D. Davis, Warden, Kirkland Reception and Evaluation Center, Respondents.
Docket NumberC/A No. 0:12-cv-3532-DCN-PJG

John R. Wood, Petitioner,
v.
Bryan P. Stirling, Commissioner, South Carolina Department of Corrections,
Willie D. Davis, Warden, Kirkland Reception and Evaluation Center, Respondents.

C/A No. 0:12-cv-3532-DCN-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

October 1, 2018


ORDER AND REPORT AND RECOMMENDATION

(Death Penalty Case)

Petitioner John R. Wood, a death-sentenced state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondents' Motion for Summary Judgment and Return and Memorandum in Support thereof (collectively, the "Return"). (ECF Nos. 136 & 137.) Wood has filed a Traverse and Memorandum of Law in Opposition to Summary Judgment ("Traverse"). (ECF No. 150.) And, Respondents have filed a Reply to Petitioner's Traverse and Memorandum of Law in Opposition to Summary Judgment ("Reply"). (ECF No. 154.) Accordingly, Respondents' motion has been fully briefed and is ready for resolution. In addition, Wood has moved for an evidentiary hearing and to expand the record (ECF No. 151), and the parties have briefed that motion (ECF Nos. 153, 160). Having carefully considered the parties' submissions and the record in this case, the court concludes that Respondents' motion for summary judgment should be granted. Additionally, the court grants in part and denies in part Wood's motion regarding further factual development (ECF No. 151).

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BACKGROUND

The following facts are recited verbatim from the South Carolina Supreme Court's opinion in Wood's direct appeal:

Trooper Eric Nicholson, while patrolling I-85 in the Greenville area, called to inform the dispatcher that he was going to stop a moped. After Nicholson activated his lights and siren, [Wood], who was riding the moped, did not immediately stop. Two other troopers subsequently heard Nicholson scream on the radio and they rushed to the scene whereupon they found Nicholson had been shot five times. The driver's side window of Nicholson's car was completely shattered. Both of his pistols were secured in their holsters. Eight shell casings were found at the scene.

There were several eyewitnesses to Nicholson's murder. Witnesses recalled seeing a moped being followed by a trooper with activated lights and sirens. The moped took the off-ramp to leave I-85 and then took a right down a frontage road. As the two vehicles got on the frontage road, the trooper sped up to get beside the moped and then veered to the left to stop at an angle against a raised median in order to block the moped's progress. The moped came to a stop close to the driver's side window.

Immediately upon stopping, [Wood] stood up over the moped and raised his arm towards the driver's side window of Trooper Nicholson's car. Some witnesses saw a weapon in [Wood's] hand and heard gunshots. After firing several shots in the driver's side window of Nicholson's car, appellant backed the moped up, turned it around, and fled at a high rate of speed.

After the shooting, some concerned citizens (The Wheelers) chased [Wood]. [Wood] entered a parking lot and then jumped into the passenger's seat of a Jeep, driven by a woman. The Wheelers subsequently called in the tag number to police.

Once law enforcement officers began chasing the Jeep, [Wood] opened fire on the pursuing officers. One officer was struck in the face by a bullet fragment. He survived the injury. After subsequently hijacking a truck, [Wood] was eventually stopped and taken into custody.

State v. Wood, 607 S.E.2d 57, 58 (S.C. 2004).1

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PROCEDURAL HISTORY
Trial and Sentencing

Wood was indicted in May 2001 in Greenville County for Trooper Nicholson's murder and possession of a weapon during the commission of a violent crime (Greenville County Case No. 01-GS-23-3106).2 (App. at 3727, ECF No. 45-3 at 74.) At trial, Wood was represented by attorneys John I. Mauldin, James Bannister, and Rodney Richey. On February 11, 2002, a jury found Wood guilty of both charges. (App. at 1780, ECF No. 42-7 at 20.) Following a sentencing proceeding, the jury recommended a sentence of death on the murder charge, finding the aggravating factor of murdering a state law enforcement officer during the performance of his official duties. (App. at 2254-2256, ECF No. 43-3 at 25-27.) On February 16, 2002, the circuit court sentenced Wood to death. (App. at 2259, ECF No. 43-3 at 30.)

Direct Appeal

On appeal, Wood, through counsel, Robert M. Dudek, raised four issues, including:

Whether the judge erred by ruling South Carolina's death penalty statute was constitutional where it mandated that appellant, seeking the mitigating evidence attendant to pleading guilty, and accepting responsibility, must waive jury sentencing, since this procedure denied appellant his right to present mitigating evidence to a sentencing jury?

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(ECF No. 39-11 at 7.) On December 6, 2004, after full briefing and oral argument, the South Carolina Supreme Court affirmed Wood's convictions and sentence. See State v. Wood, 607 S.E.2d 57 (S.C. 2004); (App. at 2575, ECF No. 43-5 at 98). Wood petitioned for rehearing, which the court denied on January 20, 2005. (App. at 2585, ECF No. 43-5 at 108.)3

First Post-Conviction Relief Action

Wood filed a pro se application for post-conviction relief ("PCR") on July 28, 2005. See Wood v. State of South Carolina, 05-CP-23-04737; (ECF No. 43-5 at 112). Subsequently, the PCR court appointed attorneys James A. Brown, Jr., and Symmes Culbertson to represent Wood in his PCR proceeding. (ECF No. 39-2.) Mr. Culbertson was later replaced by Bill Godfrey, Esquire. (See ECF No. 40-3.)

On February 9, 2007, through Mr. Brown and Mr. Culbertson, Wood filed a second amended PCR application, raising the following claims:

Ground A

Applicant was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 14 of the South Carolina Constitution and South Carolina law including S.C. Code Sections 16-3-26(B)(1) and 17-23-60 by trial counsels' failure to investigate, challenge and present evidence impeaching the testimony of Karen A. McCall, a witness for the prosecution during the verdict or penalty phase of the trial proceedings. Strickland v. Washington, 466 U.S. 668 (1984).

Supporting Facts for Ground A

(1) Karen McCall provided testimony identifying Mr. Wood as the perpetrator of the murder in response to questioning by the prosecution. Further, she

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testified that she "was forced to drive" the vehicle in question. This testimony portrayed Ms. McCall as the victim of Mr. Wood's activities.

(2) However, testimony elicited by agents of the State in another trial indicates that Ms. McCall voluntarily participated in the events involving Mr. Wood on December 6, 2000.

(3) Further, SLED testing of Ms. McCall's hands indicates that "Round lead particles found on the palms and backs of both hands of Karen Pittman McCall, SLED Trace Dept. Report, 3.1.01. Ila Simmons and Joseph Powell.

(4) Trial counsel failed to examine Ms. McCall regarding her involvement in the criminal activity or to correct this impression presented by the prosecution. Further, trial counsel failed to present the results of the GSR testing.

(5) But for counsel's deficient performance, the outcome of the trial proceedings would have been different.

Ground B

Application [sic] was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 14 of the South Carolina Constitution and South Carolina law including S.C. Code Sections 16-3-26(B)(1) and 17-23-60 by trial counsels' failure to present sufficient evidence and sufficiently articulate a request for an instruction for voluntary manslaughter. Strickland v. Washington, 466 U.S. 668 (1984).

Supporting Facts for Ground B

(1) During the verdict phase of the trial, the defense requested an instruction regarding a lesser included offense of voluntary manslaughter. However, the trial court denied this request and the Supreme Court of South Carolina affirmed this decision.

(2) However, the Trial Counsel failed to present testimony that the traffic stop was conducted in contradiction of the guidelines promulgated by law enforcement.

(3) But for counsel's deficient performance, the outcome of the trial proceedings would have been different.

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Ground C

As an alternative ground to Ground B, Applicant was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 14 of the South Carolina Constitution and South Carolina law including S.C. Code Sections 16-3-26(B)(1) and 17-23-60 by trial counsels' failure to concede guilt during the verdict phase of the proceedings. Florida v. Nixon, 543 U.S. 175 (2004) and Strickland v. Washington, 466 U.S. 668 (1984).

Supporting Facts for Ground C

(1) During the verdict phase of the case, the trial counsel presented a "he didn't do it" defense.

(2) However, during the penalty phase of the proceeding, trial counsel presented a "he can act better mitigation."

(3) But for counsel's deficient performance, the outcome of the trial proceedings would have been different.

Ground D

Applicant was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 14 of the South Carolina Constitution and South Carolina law including S.C. Code Sections 16-3-26(B)(1) and 17-23-60 by trial counsels' failure to accept the trial court's offer to instruct the jury that a defendant is required to plead not guilty in order to obtain jury sentencing. Strickland v. Washington, 466 U.S. 668 (1984).

Supporting Facts for Ground D

(1) Trial Counsel offered to instruct the jury that to tell the jury that "the individual
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