Jarrard v. Martell

1

Jon Wynn Jarrard, Sr., Petitioner, v. Warden Wilfredo Martell, Respondent.

C/A No. 5:23-2588-SAL-KDW

United States District Court, D. South Carolina

September 16, 2024

REPORT AND RECOMMENDATION

Kaymani D. West, United States Magistrate Judge.

Jon Wynn Jarrard, Sr. (“Petitioner”) is a state prisoner^[1]who filed this pro se 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. 40, 41. On November 7 2023, 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. 44. After receiving one extension, ECF No. 48, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment on December 8, 2023. ECF No. 50. Respondent filed a Reply on January 3, 2024, ECF No. 54, and Petitioner filed a Sur Reply on January 31, 2024. ECF No. 57.

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's Motion for Summary Judgment, ECF No. 41, be granted, and this Petition be denied.

I. Background

Petitioner was indicted at the January 2011 term of the Horry County Grand Jury on lewd act on a minor, and the April 2011 term on criminal sexual conduct with a minor, first degree. App. 830-31, 833-34.^[2] Petitioner proceeded to a jury trial on June 11-13, 2012, before the Honorable Larry B. Hyman, Circuit Court Judge. App. 28 et. seq. Petitioner was represented by T. Kirk Truslow, Esquire, and Senior Assistant Solicitor Candice A. Lively, Esquire, represented the State. App. 28. The jury found Petitioner guilty as indicted, and Judge Hyman sentenced Petitioner to 15-years imprisonment. App. 382, 387.

Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals (“Court of Appeals”). App. 390-4ll. On appeal, Petitioner was represented by Attorney Craig R. Stanley and Appellate Defender Robert M. Dudek, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Id. Attorneys Stanley and Dudek filed a Final Brief of Appellant on June 14, 2014, raising the following issue:

I. Did the trial court err when it allowed the State to proceed under §16-3655(A)(2) for the sole purpose of circumventing the traditional rules of evidence and to use the Defendants prior conviction, as propensity evidence in violation of due process?

App. 394. The State filed a Final Brief of Respondent on June 23, 2014. App. 414-33. On December 17, 2014, the Court of Appeals filed an unpublished decision affirming Petitioner's conviction. App. 435-36. Petitioner filed a petition for rehearing, and his petition was denied on January 23, 2015. App. 437-41, 443. Petitioner filed a petition for writ of certiorari on March 5, 2015, and the State filed its return on March 27, 2015. App. 445-85. The South Carolina Supreme Court filed an order on February 16, 2016, granting in part, and denying in part, the petition for writ of certiorari. App. 487. Following additional briefing by the Petitioner and State, the South Carolina Supreme Court filed an order dismissing the petition as improvidently granted on June 29, 2016. App. 488-533, 536-37.

II. Procedural History

Petitioner filed an Application for Post-Conviction Relief (“PCR”) on August 3, 2016, (2016-CP-26-5170). App. 539-89. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and denial of due process. App. 545-89. The State filed a return and partial motion to dismiss on February 23, 2017. App. 615-22. Petitioner filed an amended PCR application on February 15, 2018, and a second amended PCR application on April 30, 2018. App. 624, 626-29. A PCR motion hearing convened on November 26, 2018, before the Honorable Kristi F. Curtis, Circuit Court Judge. App. 630-740. Petitioner was present and represented by Attorney James K. Falk, and Attorney Johnny E. James, Jr., appeared on behalf of the State. See id. Petitioner and his trial counsel Timothy Kirk Truslow, Assistant Solicitor Candace Lively, and Appellate Counsel Craig Stanley appeared and testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on April 6, 2020, making the following findings of fact and conclusions of law:

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

This Court has reviewed the testimony presented at the evidentiary hearing, observed the witnesses presented at the hearing, passed upon their credibility, and weighed the testimony accordingly. Further, this Court has reviewed the records submitted to it by the parties and the legal arguments made by the attorneys. Pursuant to S.C. Code Ann. § 17-27-80, this Court makes the following findings based upon all of the probative evidence presented.

As an organizational matter, the subsections below address first those allegations raised in the April 30, 2018, amendment, followed thereafter by those allegations raised in the original application, followed by those complaints raised by Applicant during his testimony. Where Applicant's original allegations can be addressed together with those raised in subsequent amendment (e.g. allegations regarding alleged hearsay testimony of Pamela Gause), or where allegations may be resolved together on a common basis (e.g. failure to call witnesses), they are addressed together.

A. Ineffective Assistance of Counsel

Applicant's allegations of ineffective assistance of counsel are without merit. In a PCR action, Applicant bears the burden of proving the allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, Applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that [it] cannot be relied upon as having produced a just result” Strickland v. Washington, 466 U.S. 668, 686 (1984); Butler, 286 S.C. at 442, 334 S.E.2d at 814.

In evaluating allegations of ineffective assistance of counsel, the reviewing court applies the two-pronged test outlined in Strickland. First, Applicant must prove that counsel's performance was deficient. Strickland, 466 U.S. at 687; Cherry v. State, 300 S.C. 115, 117, 386 S.E.2d 624, 625 (1989). Applicant must so prove his factual allegations by a preponderance of the evidence. Rule 71.1(e), SCRCP. Under this prong, the court measures an attorney's performance by its “reasonableness under prevailing professional norms.” Cherry, 300 S.C. at 117, 386 S.E.2d at 625 (quoting Strickland, 466 U.S. at 690). The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Butler, 286 S.C. at 442, 334 S.E.2d at 814. “Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. (citing Strickland, 466 U.S. at 690). When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he [or she] did so for tactical reasons rather than through sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Strickland, 466 U.S. at 690). The Court, in determining deficiency, must affirmatively entertain the range of possible reasons counsel may have had for proceeding as they did. Cullen v. Pinholster, 563 U.S. 170, 196 (2011); Harrington v. Richter, 562 U.S. 86, 109-10 (2011). “[E]ven if an omission is inadvertent, relief is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough, 540 U.S. at 6; see also Murphy v. Davis, 901 F.3d 578, 592 (5th Cir. 2018) (“[C]ounsel's performance need not be optimal to be reasonable.”). Applicant must overcome this presumption to receive relief. Cherry, 300 S.C. at 118, 386 S.E.2d at 625.

Second, counsel's deficient performance must have prejudiced Applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. “This does not require a showing that counsel's actions ‘more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.'” Harrington, 562 U.S. at 111-12 (quoting Strickland, 466 U.S. at 697). “The likelihood of a different result must be substantial, not just conceivable.” Id. at 112. “The prejudice analysis requires the court deciding the ineffectiveness claim to consider the totality of the evidence before the judge or jury.” United States v. Basham, 789 F.3d 358, 371-72 (4th Cir. 2015) (quoting Elmore v. Ozmint, 661 F.3d 783, 858 (4th Cir. 2011)).

The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Strickland, 466 U.S. at 696. A court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Id. at 696-97.

1. Failure to Object to State's Exhibits 1, 2, and...