Petition for Writ of Certiorari — Justin Jermaine Johnson, Petitioner v. Stephen Duncan, Warden

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6753

JUSTIN JERMAINE JOHNSON, a/k/a Justin J. Johnson,

Petitioner - Appellant,

v.

WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION,

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Rock

Hill. Cameron McGowan Currie, Senior District Judge. (0:22-cv-03210-CMC)

Submitted: March 28, 2024

Before WYNN, THACKER, and HEYTENS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Justin Jermaine Johnson, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appendix A

Decided: April 2, 2024

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PER CURIAM:

Justin Jermaine Johnson, a South Carolina prisoner, seeks to appeal the district

court’s order accepting the recommendation of the magistrate judge and denying relief on

Johnson’s 28 U.S.C. § 2254 petition. The order is not appealable unless a circuit justice or

judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). A certificate of

appealability will not issue absent “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a

prisoner satisfies this standard by demonstrating that reasonable jurists could find the

district court’s assessment of the constitutional claims debatable or wrong. See Buck v.

Davis, 580 U.S. 100, 115-17 (2017). When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive procedural ruling is

debatable and that the petition states a debatable claim of the denial of a constitutional

right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529

U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Johnson has not

made the requisite showing. Accordingly, we deny a certificate of appealability and

dismiss the appeal. We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before this court and argument would not aid the

decisional process.

DISMISSED

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Justin Jermaine Johnson,

Petitioner,

v.

)

)

)

)

C/A No. 0:22-3210-CMC-PJG

)

REPORT AND RECOMMENDATION

)

Warden, Broad River Correctional Institution, )

Respondent.

)

)

)

Petitioner Justin Jermaine Johnson, a self-represented state prisoner, filed a 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 Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on

Respondent’s motion for summary judgment. (ECF No. 20.) Pursuant to Roseboro v. Garrison,

528 F.2d 309 (4th Cir. 1975), the court advised Johnson of the summary judgment and dismissal

procedures and the possible consequences if he failed to respond adequately to Respondent’s

motion. (ECF No. 22.) Johnson filed a response in opposition to the motion. (ECF No. 26.)

Having carefully considered the parties’ submissions and the record in this case, the court finds

that Respondent’s motion should be granted and the Petition denied.

BACKGROUND

Johnson’s charges arise out of the shooting of his nine-month-old son, his son’s mother,

and the mother’s grandmother, who were shot and killed in the victims’ Clarendon County home

on April 6,2011. Only the mother survived. The Clarendon County Grand Jury indicted Johnson

for two counts of murder, attempted murder, first-degree burglary, kidnapping, and possession of

a weapon during the commission of a violent crime. Johnson was tried in March 2014 and the jury

returned verdicts of guilty on all of the charges except attempted murder. The trial court sentenced

Appendix B

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Johnson to three consecutive terms of life imprisonment without parole for the murder and firstdegree burglary convictions, a consecutive term of thirty years’ imprisonment for kidnapping, and

a concurrent term of five years’ imprisonment for possession of a weapon during the commission

of a violent crime.

The South Carolina Court of Appeals affirmed Johnson’s convictions and sentences by

published opinion on March 28, 2018.1 State v. Johnson. 812 S.E.2d 739 (S.C. Ct. App. 2018).

The South Carolina Supreme denied the petition for a writ of certiorari filed by Johnson to review

the South Carolina Court of Appeal’s opinion.

In December 2018, Johnson filed an application for post-conviction relief (“PCR”) in the

Clarendon County Court of Common Pleas. The PCR court held an evidentiary hearing on the

application in February 2019 in which Johnson was represented by counsel. The PCR court denied

relief in an order of dismissal filed April 15, 2019. Johnson’s PCR appeal counsel filed a petition

for a writ of certiorari pursuant to the coincidentally named Johnson v. State2 on Johnson’s behalf

in the South Carolina Supreme Court, and Johnson filed a pro se response to the petition. The

Supreme Court transferred the case to the South Carolina Court of Appeals, which denied the

petition.

The published opinion substituted an earlier opinion after granting Johnson’s petition for

rehearing.

2 Johnson v. State, 364 S.E.2d201 (S.C. 1988) (applying the factors in Anders v. California.

386 U.S. 738 (1967), to post-conviction appeals). Anders requires that counsel who seeks to

withdraw after finding the “case to be wholly frivolous” following a “conscientious examination”

must submit a brief referencing anything in the record that arguably could support an appeal;

furnish a copy of that brief to the defendant; and after providing the defendant with an opportunity

to respond, the reviewing court must conduct a full examination of the proceedings to determine

if further review is merited. Anders. 386 U.S. at 744.

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FEDERAL HABEAS ISSUES

Johnson now files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

raising the following grounds for relief, quoted verbatim:

Ground One:

Trial court erred in admitting irrelevant pre-death

photographs of victims.

Supporting Facts:

During applicant’s trial, the state submitted into evidence

pre-death photographs of two of the victims in this case. The

identification of these victims was not an issue and nothing

in the photographs was relevant to establishing appellant’s

guilt or innocence.

Ground Two:

Trial court erred in allowing a state’s witness to testify via

SKYPE.

Supporting Facts:

During applicant’s trial, state’s witness Mason Moore was

allowed to testify via Skype Video Services. The video and

audio repeatedly went out which interfered with the

applicant’s lawyer as well as the solicitor ability to question

the witness properly. Also the state failed to show any public

policy necessitating the use of video testimony.

Ground Three:

Trial court erred in finding applicant’s testimony was

voluntary where it was coerced by investigators.

Supporting Facts:

While being interrogated by investigators Mason Moore and

Kipp Coker for over ten hours, applicant was repeatedly told

that he was lying and that he was going to go to prison for

life if he didn’t change his statement. After investigators

stated that they would tell applicant’s daughter that he was

cold blooded killer he then changed his statement but only

repeated back information that investigators gave to him

earlier that day. Applicant’s statement, “rather or not it was

mistake, how could I live with myself knowing I did what I

did” was taken as a confession. No new information was

presented to investigators through applicant’s statement nor

did applicant admit to committing the crime.

Ground Four:

Trial court erred in denying motion for a mistrial and to

empanel a new jury where applicant was led into courthouse

wearing orange handcuffs and escorted by several officers.

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Supporting Facts:

During applicant’s jury selection he was escorted into the

courthouse by several officers while wearing orange

handcuffs. He was taken past an area a few feet away from

where potential jury members were sitting. The use of the

orange handcuffs can only be meant to insure people were

able to see them.

Ground Five:

Trial court erred in denying motion for a mistrial due to

state’s witness discussing the facts and merits of the case

within arm’s length ofjurors.

Supporting Facts:

One of the state’s witnesses was overheard discussing the

case in front of potential jurors outside of trial. Applicant’s

trial lawyer and another state’s witness observed this

interaction.

Ground Six:

Trial court erred in sentencing applicant to five years’

incarceration for possession of a firearm in the commission

of a violent crime.

Supporting Facts:

Applicant has been sentenced to five years’ incarceration for

possession of a firearm during the commission of a violent

crime in which he was also sentenced to life without parole

for the same crime.

(Pet., ECF No. 1 at 16-17) (errors in original).

DISCUSSION

A.

Summary Judgment Standard

Summary judgment is appropriate only if the moving party “shows that there is no genuine

dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by “citing

to particular parts of materials in the record” or by “showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of

summary judgment “against a party who fails to make a showing sufficient to establish the

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existence of an element essential to that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

In deciding whether there is a genuine issue of material fact, the evidence of the non­

moving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,255 (1986). However, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will

not be counted.” Id. at 248.

The moving party has the burden of proving that summary judgment is appropriate. Once

the moving party makes this showing, however, the opposing party may not rest upon mere

allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth

specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex

Corp.. 477 U.S. at 322. Further, while the federal court is charged with liberally construing a

petition filed by a pro se litigant to allow the development of a potentially meritorious case, see,

e.g.. Erickson v. Pardus. 551 U.S. 89 (2007), the requirement of liberal construction does not mean

that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal

claim, nor can the court assume the existence of a genuine issue of material fact where none exists.

Weller v. Den’t of Soc. Servs.. 901 F.2d 387 (4th Cir. 1990).

B.

Habeas Corpus Standard of Review

In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

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

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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). When reviewing a state

court’s application of federal law, “a federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather, that application must also be

unreasonable.” Williams v. Taylor. 529 U.S. 362, 410 (2000); see also White v. Woodall, 572

U.S. 415,419 (2014) (describing an “unreasonable application” as “objectively unreasonable, not

merely wrong” and that “even clear error will not suffice”) (internal quotation marks and citation

omitted); Harrington v. Richter. 562 U.S. 86,100 (2011); Humphries v. Ozmint. 397 F.3d 206 (4th

Cir. 2005); McHone v. Polk. 392 F.3d 691 (4th Cir. 2004). Moreover, state court factual

determinations are presumed to be correct and the petitioner has the burden of rebutting this

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Where, as here, the petitioner seeks relief based on a state trial court error, the petitioner

must also show that the error had a substantial and injurious influence on the verdict. Brown v.

Davenport. 142 S. Ct. 1510, 1523 (2022) (quoting Brecht v. Abrahamson. 507 U.S. 619, 637

(1993)). That is, for a federal habeas court to grant relief on a perceived state trial court error, the

petitioner must satisfy both the court’s equitable precedent under Brecht and the statutory standard

in § 2254(d).

“A state court’s determination that a claim lacks merit precludes federal habeas relief so

long as ‘fair-minded jurists could disagree’ on the correctness of the state court’s decision.”

Harrington. 562 U.S. at 101 (quoting Yarborough v. Alvarado. 541 U.S. 652,664 (200411: see also

White. 572 U.S. at 419-20 (stating that “ ‘[a]s a condition for obtaining habeas corpus from a

federal court, a state prisoner must show that the state court’s ruling on the claim being presented

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in federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement’ ”) (alteration

in original) (quoting Harrington. 562 U.S. at 103). Under the AEDPA, a state court’s decision

“must be granted a deference and latitude that are not in operation” when the case is being

considered on direct review. Harrington. 562 U.S. at 101. Moreover, review of a state court

decision under the AEDPA standard does not require an opinion from the state court explaining

its reasoning. See id at 98 (finding that “[tjhere is no text in [§ 2254] requiring a statement of

reasons” by the state court). If no explanation accompanies the state court’s decision, a federal

habeas petitioner must show that there was no reasonable basis for the state court to deny relief.

Id. Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories

supported or could have supported the state court’s decision; and then (2) ask whether it is possible

that fairminded jurists could disagree that those arguments or theories are inconsistent with the

holding of a prior decision of the United States Supreme Court. Id at 102. “If this standard is

difficult to meet, that is because it was meant to be.” Id 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.” Id at 102-03 (quoting Jackson v.

Virginia. 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).

C.

Exhaustion Requirements

A habeas corpus petitioner may obtain relief in federal court only after he has exhausted

his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a

habeas petitioner must present his claims to the state’s highest court.” Matthews v. Evatt, 105 F.3d

907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette. 644 F.3d 192

(4th Cir. 2011); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction

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Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that “when the claim has been presented

to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be

deemed to have exhausted all available state remedies.”). To exhaust his available state court

remedies, a petitioner must “fairly present[] to the state court both the operative facts and the

controlling legal principles associated with each claim.” Longworth v. Ozmint. 377 F.3d 437,448

(4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider

only those issues which have been properly presented to the state appellate courts with jurisdiction

to decide them. Generally, a federal habeas court should not review the merits of claims that would

be found to be procedurally defaulted (or barred) under independent and adequate state procedural

rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth. 377 F.3d at 447-48;

see also Coleman v. Thompson. 501 U.S. 722 (1991). For a procedurally defaulted claim to be

properly considered by a federal habeas court, the petitioner must “demonstrate cause for the

default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that

failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman. 501

U.S. at 750.

D.

Respondent’s Motion for Summary Judgment

1.

Grounds One and Six

Johnson’s Grounds One and Six are not cognizable claims in a federal habeas petition. A

district court may only entertain an application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a);

see also Estelle v. McGuire. 502 U.S. 62, 67-68 (1991) (“It is not the province of a federal habeas

corpus court to reexamine state-court determinations on state-law questions.”); Pulley v. Harris.

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465 U.S. 37, 41(1984) (“A federal court may not issue the writ [of habeas corpus] on the basis of

a perceived error of state law.”).

In Ground One, Johnson claims the trial court erred by admitting pre-death photographs of

the murder victims. Thus Ground One raises an issue of state evidentiary law and Johnson does

not argue that the error was so extreme that it implicates due process concerns. See, e.g., Burket

v. Angelone, 208 F.3d 172,186 (4th Cir. 2000) (“In federal habeas actions, we do not sit to review

the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme

as to result in a denial of a constitutionally fair proceeding.”). In Ground Six, Johnson claims the

trial court erred by sentencing Johnson to five years’ imprisonment for possession of a weapon

during the commission of a violent crime in light of South Carolina Code § 16-23-490, which

expressly provides that the five-year sentence does not apply when the defendant is sentenced to

life without parole for the violent crime. Thus, Ground Six raises an issue of state statutory

interpretation rather than an issue of federal law. See, e.g.. Slavek v. Hinkle. 359 F. Supp. 2d 473,

483 (E.D. Va. 2005) (finding the petitioner’s claim that he was sentenced outside of Virginia’s

sentencing guidelines was not cognizable in a federal habeas petition); Krempa v. Parrish. Civil

Action No. DKC-12-841,2012 WL 6738287, at *6 (D. Md. Dec. 27,2012) (“Sentence calculation

and/or construction issues generally are issues of state law and do not give rise to a federal

question.”). Consequently, Respondent is entitled to judgment as a matter of law on Grounds One

and Six.

2.

Ground Two

In Ground Two, Johnson claims the trial court violated his Sixth Amendment right to

confront the witnesses against him by allowing investigator Mason Moore to testify remotely by

two-way video. Respondent argues that Johnson cannot show pursuant to 28 U.S.C. § 2254(d)

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that the South Carolina Court of Appeals’s decision rejecting this claim was contrary to, or an

unreasonable application of, clearly established federal law, or was an unreasonable determination

of the facts. Respondent also argues that pursuant to Brecht, any error by the trial court was

harmless. The court agrees.

The Confrontation Clause of the Sixth Amendment states “[i]n all criminal prosecutions,

the accused shall enjoy the right... to be confronted with the witnesses against him.” U.S. Const.

amend. VI. “The central concern of the Confrontation Clause is to ensure the reliability of the

evidence against a criminal defendant by subjecting it to rigorous testing in the context of an

adversary proceeding before the trier of fact.” Maryland v. Craig. 497 U.S. 836, 845 (1990).

Generally, the Confrontation Clause requires that witnesses testifying against a criminal defendant

be physically present at trial, but that right is not absolute. United States v. Abu Ali. 528 F.3d 210,

240 (4th Cir. 2008); see also Craig. 497 U.S. at 849 (“In sum, our precedents establish that the

Confrontation Clause reflects a preference for face-to-face confrontation at trial, a preference that

must occasionally give way to considerations of public policy and the necessities of the case.”)

(internal quotations marks and citations omitted).

Here, the trial court held a pretrial Jackson v. Denno3 hearing to determine whether

Johnson’s statement to police was given voluntarily. The State called Clarendon County Sheriff’s

Department investigators Mason Moore and Kippton Coker to testify at the hearing. Moore and

Coker were deputies who interviewed Moore and purportedly obtained a confession after

interviewing him for several hours. However, Moore had since moved to Montana, so the State

had him testify remotely via two-way video. Johnson did not object to Moore testifying remotely

at the Jackson v. Denno hearing, but noted that he may object to the use of remote testimony at

3 378 U.S. 368 (1964).

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trial. The following day, the trial court heard argument from the parties on whether Moore’s

remote testimony violated the Confrontation Clause. The trial court found that Johnson would not

be prejudiced by Moore’s remote testimony because the two-way video technology allowed the

jury to frilly understand Moore, Moore’s testimony was cumulative of Coker’s testimony, and the

interview with Johnson was on video. At trial, Moore testified remotely about his and Coker’s

interview of Johnson. (App. at 87-93, ECF No. 19-1 at 90-96.) At the end of Moore’s testimony,

Johnson renewed his objection and noted that the video froze a few times during Moore’s

testimony. The trial court overruled the objection, finding the freezing did not ultimately stop the

parties from being able to ask questions or receive answers, and thus, Johnson was not prejudiced

by the testimony.

On appeal, Johnson argued that Moore’s remote testimony during trial violated the

Confrontation Clause. The South Carolina Court of Appeals agreed, but found that the error was

harmless in Johnson’s case. The Court of Appeals first found that pursuant to Maryland v. Craig.

remote testimony is only appropriate where necessary to further an important public policy and

the reliability of the testimony is otherwise assured.4 The Court of Appeals also found, pursuant

to United States v. Abu Ali. that a generalized interest in law enforcement, or convicting someone

of a criminal offense, is not an “important public policy” that justifies the use of remote testimony

in a criminal trial. Thus, the Court of Appeals found that the trial court erred in allowing Moore

to testify remotely because no public policy consideration beyond a generalized interest in criminal

4 As pointed out by Respondent, the proper standard for evaluating the Confrontation

Clause’s effect on remote testimony is unsettled under federal law. See Wrotten v. New York.

560 U.S. 959 (2010) (J., Sotomayor, concurring in the denial of the petition for a writ of certiorari)

(questioning whether Maryland v. Craig is the controlling precedent in deciding whether testimony

via two-way video violates the Confrontation Clause, but noting that the question has not been

addressed by the Supreme Court). However, the South Carolina Court of Appeals’s decision as to

the merits of the Johnson’s Confrontation Clause claim is not at issue here.

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convictions existed in Johnson’s case. However, the Court of Appeals found the error was

harmless because Moore’s testimony was largely cumulative to the evidence already before the

jury. Johnson. 812 S.E.2d at 749-54.

Here, Johnson fails to show that the South Carolina Court of Appeals’s decision was

contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable

determination of the facts. Under federal law, Confrontation Clause violations are subject to

harmless error analysis. Lilly v. Virginia. 527 U.S. 116,140 (1999); United States v. Banks. 482

F.3d 733, 741 (4th Cir. 2007). Whether the error is harmless depends on “a host of factors,”

including, “the importance of the witness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points, the extent of cross-examination otherwise permitted,

and ... the overall strength of the prosecution’s case.” Delaware v. Van Arsdall. 475 U.S. 673,

684 (1986).

Several factors support the Court of Appeals’s finding that the error was harmless in

Johnson’s case. Moore’s testimony was cumulative because Coker also testified about their

interview of Johnson and the video recording of the interview was played to the jury.5 The

interview showed what the State argued was a confession by Johnson—which Johnson disputed—

but Moore’s testimony was not essential to establishing that key piece of evidence. Rather, the

video was admitted and played during Coker’s testimony and the jury was able to see the purported

5 Johnson does not challenge the trial court’s and Court of Appeals’s finding that Moore’s

testimony was cumulative of other evidence presented about Moore’s and Coker’s interview of

Johnson. See generally 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for

a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be presumed to be correct. The

applicant shall have the burden of rebutting the presumption of correctness by clear and convincing

evidence.”).

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confession themselves. See, e.g.. Wiggins v. Boyette. 635 F.3d 116,125 (4th Cir. 2011) (finding

that the admission of witnesses’ statements that violated the Confrontation Clause but were

ultimately cumulative of other evidence supported a finding of harmless error). Further, Johnson

argues that the video froze several times, but the record shows that the parties were able ask every

question and receive an answer, and Johnson fails to explain how a few instances of the video

freezing prejudiced him Consequently, Johnson fails to show that the Court of Appeals’s harmless

error finding was contrary to, or an unreasonable application of, clearly established federal law;

was based on an unreasonable determination of the facts; or that the admission of Moore’s

testimony had a substantial and injurious influence on the verdict.

3.

Ground Three

In Ground Three, Johnson argues the trial court erred by finding that his statement to

investigators—that he fired the gun and accidently killed the victims, which the investigators

considered to be a confession—was given voluntarily. Respondent argues that Johnson cannot

show that the Court of Appeals’s rejection of this claim was contrary to, or an unreasonable

application of, federal law, or was based on an unreasonable determination of fact. The court

agrees.

The Fifth Amendment provides, “No person... shall be compelled in any criminal case to

be a witness against himself nor be deprived of life, liberty, or property, without due process of

law.” U.S. Const, amend. V. Where a suspect gives an involuntary confession while in custody,

the use of that confession at trial offends due process. Abu Ali. 528 F.3d at 232; United States v.

Braxton. 112 F.3d 777, 780 (4th Cir. 1997). A statement given during custodial interrogation is

involuntary if the suspect’s will was “overborne” or his “capacity for self-determination was

critically impaired.” United States v. Pelton. 835 F.2d 1067, 1071-72 (4th Cir. 1987) (quoting

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Schneckloth v. Bustamonte. 412 U.S. 218, 225 (1973)). This requires the court to consider the

totality of the circumstances, “including the characteristics of the defendant, the setting of the

interview, and the details of the interrogation.” United States v. Cristobal. 293 F.3d 134,140 (4th

Cir. 2002) (citing Pelton. 835 F.3d at 1071). Coercive police activity is a necessary finding for a

confession to be considered involuntary. United States v. Giddins. 858 F.3d 870, 881 (4th Cir.

2017) (citing Cristobal. 293 F.3d at 140-41). “The mere existence of threats, violence, implied

promises, improper influence, or other coercive police activity, however, does not automatically

render a confession involuntary.” Braxton. 112 F.3d at 780.

The State charged Johnson with shooting his nine-month-old son, J.C.; his children’s

mother, Kaisha Caraway; and Caraway’s grandmother. The victims all lived together in a house

that also included Johnson’s older child, K.C., and Caraway’s grandfather. The State presented

evidence that Johnson entered the victims’ home and got into an argument with Caraway and her

grandmother, retrieved a shotgun, and shot all three victims, killing J.C. and Caraway’s

grandmother. When Clarendon County Sheriffs Deputies originally arrived at the residence,

Johnson and Caraway said that someone named “Robert” was responsible for the shootings, but

when the deputies separated them, Caraway told the deputies that Johnson was the shooter.

At the pretrial Jackson v. Denno hearing, investigators Moore and Coker provided the

following testimony. (App. at 25-83, ECF No. 19-1 at 28-86.) The deputies took Johnson to the

Sheriffs Department to interview him around 2:00 p.m. Investigators Moore and Coker advised

Johnson of his Miranda rights from a printed card twice before they questioned him, and Johnson

indicated his willingness to waive his rights and speak to the investigators. Johnson never invoked

his right to counsel or right to remain silent. The interview lasted for many hours. Moore estimated

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that the actual interviews lasted at least four to five hours.6 During that time, the investigators

offered Johnson food and drink and provided Johnson bathroom breaks as needed.

Johnson initially claimed that a third party was responsible for the shooting, but as the

interview went on, Moore and Coker told Johnson that they believed he was lying and told him

they had collected evidence that contradicted his story. Johnson’s story changed over the course

of the interview. Coker admitted to losing his temper and yelling at Johnson when calling him a

liar. At one point, Moore put his hands on Johnson and told him that God would take the weight

from Johnson and make everything okay. At another point, one of the investigators told Johnson

that if he kept up with his false story about what happened, he was going to end up in prison for

life, if not the death penalty. Later, Coker told Johnson that he would tell Johnson’s surviving

daughter that Johnson was a man for telling the truth, which Coker believed had a great effect on

Johnson. At the end of the interview, Johnson admitted that he was the shooter and that he lied

about a third party being present at the scene.

The following day, after reviewing the Jackson v. Denno hearing testimony and reviewing

the video recording of Johnson’s interview, the trial court found that Johnson gave his statement

to investigators freely, voluntarily, knowingly, and intelligently. The court noted that Johnson was

Mirandized twice; offered ample breaks, food, and drink; and was not under excessive oppression

when he confessed. (App. at 87, ECF No. 19-1 at 90.)

On appeal, Johnson argued that the trial court erred in finding his confession was

voluntarily because the investigators misrepresented evidence to him, threatened him with the

6 The record is unclear when the interview ended. Johnson’s time in the Sheriff s

Department was taped, and the tapes last for approximately eleven hours, though investigators did

not actively interview Johnson the entire time—hours of the footage include breaks and time spent

collecting physical evidence from Johnson’s body and clothes.

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death penalty, and referenced his daughter and what she would think of his actions.7 The South

Carolina Court of Appeals rejected these arguments.8

The Court of Appeals found that the circuit court did not abuse its discretion in admitting

Johnson’s statement because the evidence supported a finding that Johnson’s will was not

overborne by the investigator’s tactics. As to the investigator’s misrepresentation of evidence, the

Court of Appeals found that case law requires more than just misrepresentation alone to find that

the suspect’s will was overborne. As to the death penalty comment, the Court of Appeals found

that it was made in isolation, the death penalty was a possible sentence for the crime, and Johnson

did not recant his story until well after the death penalty was mentioned. And as to the statement

about Johnson’s surviving daughter, the Court of Appeals found that the statement was not a

7 These arguments were not specifically made to the trial court. In his brief to the Court of

Appeals, Johnson argued:

The investigators in this case continuously lied about the evidence in an effort to

“wear on his (Johnson’s) psyche” and “break him (Johnson) down.” They told

Johnson that the trunk of his car was analyzed and only his fingerprints were found,

that his shoe matched a footprint left from kicking in the door, that his ring matched

a wound left on [Caraway], and that you could hear him in the background of the

9-1-1 calls by [Caraway’s grandmother] and [Caraway]. None of that was true.

In the present case, the statements regarding Johnson’s two-year-old daughter were

equally coercive. The investigators attempted to ameliorate some of their conduct

by making their threats in the form of questions rather than statements. They all

but said that if Johnson did not give them an alternate story, they were going to tell

his daughter their version of events—that he was [a] cold blooded killer who

intended to kill her too.

(App. at 1126-28, ECF No. 19-5 at 129-31.)

8 The South Carolina Court of Appeals specifically stated that Johnson did not “directly

argue” that the length of his interrogation rendered his confession involuntary. Johnson. 812

S.E.2d at 747 n.8.

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tangible threat related to children or family members that could be considered coercive. Johnson.

812 S.E.2d at 747-49.

Here, Johnson fails to show that the South Carolina Court of Appeals’s decision was

contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable

determination of the facts. Notably, Johnson fails to specify what part of the Court of Appeals’s

decision he challenges, but regardless, the Court of Appeals’s findings are generally compatible

with federal law. Federal courts generally find that a confession is not rendered involuntary

because the interrogators lie, mislead, or misrepresent the evidence, unless the suspect’s will is

overborne.

See United States v. Whitfield. 695 F.3d 288, 302 (4th Cir. 2012) (“Indeed,

misrepresentations are insufficient, in and of themselves, to render a confession involuntary. The

determinative factor remains the question of whether such misrepresentations overbore the

defendant’s will.”) (internal quotation marks and citations omitted); see also United States v.

Haynes. 26 F. App’x 123,134 (4th Cir. 2001) (collecting examples). Federal courts also generally

find that threats of harsh sentences are not enough to overbear a suspect’s will. See United States

v. Jacques. 744 F.3d 804, 810 (1st Cir. 2014) (“[F]ederal courts considering the totality of the

evidence have repeatedly found that an interrogator’s threats of a harsher prison sentence if a

defendant failed to cooperate did not suffice to overbear the defendant’s will.”); cf Braxton. 112

F.3d at 783 (“A law enforcement officer’s admonishment to a suspect during an investigatory

interview to tell the truth or face consequences is simply not an implied promise of non­

prosecution.”).

Nor does Johnson explain how the Court of Appeals’s decision is based on an unreasonable

determination of the facts. The Court of Appeals found that the investigators did not make a

tangible, coercive threat to Johnson’s daughter. Johnson does not point to any evidence that could

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contradict that finding. Instead, Johnson argues that the investigators threatened to “tell his

daughter about him.” (Petr.’s Resp., ECF No. 26 at 10.) However, telling a suspect’s family

member about the suspect’s crimes is not the type of threat against family members that federal

courts have found can overbear a suspect’s will and render a confession involuntary. See, e.g..

T.vnnmn v. Illinois. 372 U.S. 528, 534 (1963) (finding a threat to a mother that state financial aid

for her infant would be cut off rendered her confession involuntary); Jacques. 744 F.3d at 811

(“[S]tatements that a defendant’s refusal to cooperate may lead to an extended separation from his

or her loved ones may contribute to a finding that the defendant’s confession was coerced.

However, the mere fact that a defendant is placed under some psychological pressure by agents

does not necessarily render a confession involuntary.”) (internal quotations marks and citations

omitted).

Viewing the totality of the circumstances, the court cannot say that the Court of Appeals’s

decision is unreasonable.

Johnson does not point to any evidence in the record that the

investigator’s actions coerced him to the point that he was not able to freely decide how to answer

their questions. See Pelton, 835 F.2d at 1071-72. There is no evidence that Johnson did not have

the mental or emotional capacity to be interrogated or that he was under the influence of drugs or

alcohol. Both investigators testified that Johnson appeared rational and responsive, was not

overwhelmed by emotions, and appeared to understand their questions and his Miranda rights.

They also testified that Johnson never asked the questions to end, said he no longer wanted to

speak with them, or asked for an attorney. (App. at 491-96, 521-24; ECF No. 19-2 at 156-161,

ECF No. 19-3 at 23-26.) Consequently, Johnson fails to show that the Court of Appeals’s decision

was contrary to, or an unreasonable application of, clearly established federal law; an unreasonable

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determination of the facts; or that the admission of his statement had a substantial and injurious

influence on the verdict.

4.

Ground Four

In Ground Four, Johnson argues that the trial court erred by refusing to grant a mistrial

based on the jury venire being exposed to a view of Johnson being escorted into the courthouse in

handcuffs before trial. Respondent argues that Johnson cannot show that the Court of Appeals’s

decision finding that the trial court did not err by refusing to grant a mistrial was contrary to, or an

unreasonable application of, clearly established federal law, or based on an unreasonable

determination of the facts. The court agrees.

The Due Process Clause of the Fifth and Fourteenth Amendments generally forbids the use

of restraints on a criminal defendant visible to jurors inside of the courtroom, absent special

security considerations. See Deck v. Missouri. 544 U.S. 622,630-32 (2005). As the Fourth Circuit

has explained:

Basic to American jurisprudence is the principle that an accused, despite his

previous record or the nature of the pending charges, is presumed innocent until his

guilt is established beyond a reasonable doubt by competent evidence. It follows

that he is also entitled to the indicia of innocence. In the presence of the jury, he is

ordinarily entitled to be relieved of handcuffs, or other unusual restraints, so as not

to mark him as an obviously bad man or to suggest that the fact of his guilt is a

foregone conclusion.

However, the right to the indicia of innocence is a relative one. The judge presiding

at the trial, the jurors, courtroom personnel and spectators are entitled to security in

the performance of their functions or in observing the trial. The members of the

public out of the courtroom are entitled to security in the pursuit of their daily

activities. The public also has an interest in the expeditious trial of persons accused

of crime, and an interest in preventing the guilty from being at large and committing

other offenses. Thus, in appropriate circumstances, the accused’s right to the

indicia of innocence before the jury must bow to the competing rights of

participants in the courtroom and society at large.

United States v. Samuel. 431 F.2d 610, 614-15 (4th Cir. 1970).

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However, the use of restraints outside of the courtroom is not inherently prejudicial, and a

defendant claiming that his right to due process was violated by visible restraints outside of the

courtroom must show that he was actually prejudiced. See Wharton v. Chappell. 765 F.3d 953,

964 (9th Cir. 2014) (“We have held that visible shackling outside the courtroom—at least when

the viewing is brief and accidental—is not inherently prejudicial; instead, a due process violation

occurs only if the criminal defendant demonstrates actual prejudice.”); United States v. Morales,

758 F.3d 1232,1237 (10th Cir. 2014) (same); United States v. Shaver. 511 F.2d 933,935 (4th Cir.

1975) (finding that the jurors’ brief sighting of the defendant in handcuffs is not per se prejudicial

and finding no prejudice where the trial court thoroughly questioned the jurors and determined

there was no prejudice to the defendant); see also Mendoza v. Berghuis, 544 F.3d 650, 655 (6th

Cir. 2008) (stating that there is no clearly established federal law that a defendant’s due process

rights are violated by jurors seeing the defendant in restraints during transport outside of the

courtroom).

Following voir dire, Johnson moved for a mistrial, arguing the jury venire was tainted for

two reasons. (The second reason is addressed in Ground Five.) The first reason, Johnson argued,

was that the jury venire was exposed to him being escorted into the courthouse in handcuffs.

Johnson explained that while he was escorted into the courthouse in street clothes, his hands were

cuffed in front of him and he was escorted by three or four jail personnel. Johnson claimed that

this was done within full view of where the jury venire was assembling that morning. Johnson

argued that, consequently, the entire jury venire was tainted and should be disqualified. Johnson

also argued that he could not have asked prospective jurors about it during voir dire because it

would have “re-rung” the bell. (App. at 191-94, ECF No. 19-1 at 194-97.)

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The trial court denied the motion for a mistrial. Noting that Johnson was first seen by the

jury in the courtroom without handcuffs, in plain clothes, and being escorted by counsel, the court

also found that the jurors were questioned during voir dire during about whether they had any bias

and none was found. (App. at 195, ECF No. 19-1 at 198.)

On appeal, the South Carolina Court of Appeals found that the trial court did not err in

denying Johnson’s motion for a mistrial. The Court of Appeals found that the record failed to

demonstrate that any juror actually observed Johnson in handcuffs or being escorted by jail

personnel. Johnson. 812 S.E.2d at 749.

The court concludes that the Court of Appeals’s decision is not contrary to, or an

unreasonable application of, clearly established federal law. As provided above, a consensus of

federal authority provides that a criminal defendant cannot establish that his right to due process

was violated by a jury venire observing him in restraints outside of the courtroom unless he can

prove that he was actually prejudiced. See Wharton. 765 F.3d at 964; Morales. 758 F.3d at 1237;

Shaver. 511 F.2d at 935. The Court of Appeals applied that standard here. Johnson cites to Deck

v. Missouri, to argue that he is entitled to relief, but the Deck standard is not applicable here,

because Deck dealt with the use of shackles in front of the jury in the courtroom during the guilt

phase of a death penalty trial, 544 U.S. at 626-29, whereas Johnson was possibly seen by the jury

venire while being transported into the courthouse.

Johnson also fails to point to any evidence that the Court of Appeals’ decision is based on

an unreasonable determination of the facts. The Court of Appeals found that the trial court record

did not show whether any juror actually saw Johnson in handcuffs, and if so, whether they were

prejudiced by it. Johnson appears to admit this and argues he is entitled to relief because it cannot

be known if the jurors were prejudiced. (Petr.’s Resp., ECF No. 26 at 11-12.) However, it is

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Johnson’s burden to show that the trial court decision is based on an unreasonable determination

of the facts in light of the evidence presented in the trial court, see 28 U.S.C. § 2254(d)(2), and

Johnson’s speculation does not meet that burden. Notably, Johnson did not raise this issue to

prospective jurors during voir dire, nor did he ask the trial court to give a curative instruction or

otherwise address the issue in front of the jury. Thus, the record is devoid of any evidence that

would refute the trial court’s determination that no bias was found among the jury members during

voir dire. Consequently, Johnson cannot show that he is entitled to relief under § 2254, or that the

jury venire possibly seeing him in handcuffs outside of the courtroom had a substantial and

injurious influence on the verdict.

5.

Ground Five

In Ground Five, Johnson argues the trial court erred in denying his motion for a mistrial

based on witnesses for the state discussing the facts of the case near jurors outside of the courtroom.

Respondent argues that Johnson cannot show that the state court decision was contrary to, or an

unreasonable application of, clearly established federal law, or an unreasonable determination of

the facts. The court agrees.

The Sixth Amendment guarantees that criminal defendants shall enjoy the right to a trial

by an impartial jury. U.S. Const. Amend. VI. As the Fourth Circuit has explained:

An impartial jury is one that arrives at its verdict based upon the evidence

developed at trial and without external influences.

It is clearly established under Supreme Court precedent that an external influence

affecting a jury’s deliberations violates a criminal defendant’s right to an impartial

jury. Especially troubling are private communications between a juror and a third

party.

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In light of these significant constitutional concerns, the Supreme Court in fRemmer

v. United States, 347 U.S. 227 (1954)] created a rebuttable presumption of

prejudice applying to communications or contact between a third party and a juror

concerning the matter pending before the jury.

Barnes v. Joyner, 751 F.3d 229, 240-41 (4th Cir. 2014) (internal quotation marks and citations

omitted); see also United States v. Johnson. 954 F.3d 174,179 (4th Cir. 2020) (“ ‘[I]f even a single

juror’s impartiality is overcome’ by such an external influence, the defendant’s right to an impartial

jury has been compromised.”) (quoting United States v. Lawson. 677 F.3d 629, 648-49 (4th Cir.

2012)).

Following voir dire, Johnson moved for a mistrial, arguing the jury venire was tainted for

two reasons. As explained above, the trial court denied the motion as to the jury venire being

exposed to Johnson being escorted in handcuffs. Johnson’s second basis for a mistrial was that

two of the State’s witness were seen by Johnson’s counsel discussing evidence of the case in front

of potential jurors. Johnson stated that during the trial courts’ break between jury qualifications

and voir dire, Johnson’s counsel observed two law enforcement personnel having a conversation

about the existence and weight of the evidence in front ofjurors that were standing around outside

the courtroom. Johnson claimed that the distance between the witnesses and potential jurors was

“arm’s length.” Johnson stated that those law enforcement personnel, who Johnson identified by

name, were witnesses for the State. Johnson also noted this occurred after the trial court went

through general qualifications and exemptions with the jury venire, including the trial court’s

question of whether anyone in the venire had reasons that they could not serve. (App. at 196-97,

ECFNo. 19-1 at 199-200.)

The trial court stated that, after the break, during voir dire, the potential jurors were asked

if they knew anything about the case that did not come from within the four walls of the courtroom,

and every potential juror answered “no.” Johnson replied that the jurors likely would not know

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that the conversation they overheard was about his case until the witnesses took the stand. The

trial court indicated that the jurors would be instructed that the only evidence they could consider

would be evidence presented during the trial. The trial court also indicated that it was unclear

whether any potential jurors actually heard the witnesses’ conversation. The trial court denied the

motion. (App. at 197-99, ECFNo. 19-1 at 200-02.)

On appeal, the South Carolina Court of Appeals found that the trial court did not err in

denying Johnson’s motion for a mistrial based on the witnesses discussing evidence near potential

jurors. Similar to Johnson’s other motion for a mistrial, the Court of Appeals found that the record

did not show that any juror actually overheard the comments or was prejudiced by them. Johnson,

812 S.E.2d at 749.

The court concludes that Johnson fails to show that the Court of Appeals’ decision is

contrary to, or an unreasonable application of, clearly established federal. Johnson again does not

explain how the Court of Appeals’s decision contradicts federal law. Similar to his argument in

Ground Four, Petitioner argues it is impossible to know if any jurors overheard the conversation

and were prejudiced by it. (Petr.’s Resp., ECF No. 26 at 12.) As explained above, external

influences on a jury pose serious constitutional issues, but Johnson points to no evidence that any

juror actually overheard the State’s witnesses outside of the courtroom. While federal law requires

a presumption of prejudice and an evidentiary when the defendant presents a credible allegation

of improper external communication with a juror, see Remmer. 347 U.S. at 228, Johnson did not

move for such a hearing in this case, and Johnson failed to establish on the record that improper

contact necessitating such a hearing actually took place. See Barnes. 751 F.3d at 244 (“Therefore,

to be entitled to the Remmer presumption and a Remmer hearing, a defendant must first establish

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both that an unauthorized contact was made and that it was of such a character as to reasonably

draw into question the integrity of the verdict.”) (internal quotation marks omitted).

Notably, Johnson did not question potential jurors about this in voir dire, despite the fact

that his counsel observed the incident and brought it to the court’s attention. Thus Johnson was in

a unique position to identify the potential jurors who may have been improperly influenced, but

he did not identify them for the record. That said, the record also does not reveal whether the

potential jurors that were exposed to the witnesses’ conversation were actually seated on the jury.

Consequently, Johnson fails to show that the Court of Appeals’s finding that no jurors were

prejudiced is an unreasonable determination of the facts, or that the jury venire possibly hearing

the witnesses’ conversation had a substantial and injurious influence on the verdict.

RECOMMENDATION

For the foregoing reasons, the court recommends Respondent’s motion for summary

judgment (ECF No. 20) be granted and the Petition be denied.

May 3, 2023

Columbia, South Carolina

Paige J. Gossett

UNITED STATES MAGISTRATE JUDGE

The parties ’ attention is directed to the important notice on the next page.

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Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and

Recommendation with the District Judge. Objections must specifically identify the portions of the

Report and Recommendation to which objections are made and the basis for such objections. “[I]n

the absence of a timely filed objection, 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 & Acc. Ins. Co., 416 F.3d 310 (4th Cir.

2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).

Specific written objections must be filed within fourteen (14) days of the date of service of

this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ.

P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by

mailing objections to:

Robin L. Blume, Clerk

United States District Court

901 Richland Street

Columbia, South Carolina 29201

Failure to timely file specific written objections to this Report and Recommendation

will result in waiver of the right to appeal from a judgment of the District Court based upon

such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Am. 474 U.S. 140 (1985); Wright v.

Collins. 766 F.2d 841 (4th Cir. 1985); United States v. Schronce. 727 F.2d 91 (4th Cir. 1984).

Page 26 of 26

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FILED: June 10, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6753

(0:22-cv-03210-CMC)

JUSTIN JERMAINE JOHNSON, a/k/a Justin J. Johnson

Petitioner - Appellant

v.

WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION

Respondent - Appellant

ORDER

The court denies the petition for rehearing.

Entered at the direction of the panel: Judge Wynn, Judge Thacker, and Judge

Heytens.

For the Court

/s/ Nwamaka Anowi. Clerk

Appendix C

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Page lot 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

ROCK HILL DIVISION

C/A No. 0:22-3210-CMC

Justin Jermaine Johnson,

Petitioner,

v.

Order

Warden, Broad River Correctional Institution,

Respondent.

This matter is before the court on Petitioner’s pro se application for writ of habeas corpus,

filed in this court pursuant to 28 U.S.C. § 2254. ECF No. 1. In accordance with 28 U.S.C. §

636(b) and Local Civil Rule 73.02 (B)(2), DSC, this matter was referred to United States

Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation

(“Report”).

Respondent filed a motion for summary judgment, as well as a return and memorandum of

law on January 12, 2023. ECF Nos. 19, 20, 21. A Roseboro Order was mailed to Petitioner,

advising him of the importance of a dispositive motion and the need to file an adequate response.

ECF No. 22. Petitioner filed a response in opposition to summary judgment. ECF No. 26.

On May 4, 2023, the Magistrate Judge issued a Report recommending that Respondent’s

motion for summary judgment be granted on the merits. ECF No. 29. The Magistrate Judge

advised Petitioner of the procedures and requirements for filing objections to the Report and the

serious consequences if he failed to do so. Petitioner filed timely objections on May 17, 2023.

ECF No. 31.

Appendix D

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Standard

The Magistrate Judge makes only a recommendation to this court. The recommendation

has no presumptive weight, and the responsibility to make a final determination remains with the

court. See Matthews v. Weber, 423 U.S. 261 (1976). The court is charged with making a denovo

determination of any portion of the Report of the Magistrate Judge to which a specific objection

is made. The court may accept, reject, or modify, in whole or in part, the recommendation made

by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28

U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection.

See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that

“in the absence of a timely filed objection, 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.”) (citation omitted).

Discussion

In his § 2254 petition, Petitioner alleges the trial court erred in (1) admitting pre-death

photos of the victims; (2) allowing a state’s witness to testify via SKYPE; (3) finding Petitioner’s

testimony was voluntary although he says it was coerced; (4) denying a motion for mistrial and to

empanel a new jury because Petitioner was led into the courthouse wearing orange handcuffs and

escorted by several officers; (5) denying a motion for mistrial due to state’s witness discussing

facts and merits of the case within arm’s length ofjurors; and (6) sentencing applicant to five years

imprisonment for possession of a firearm in commission of a violent crime when he was also

sentenced to life without parole for the same crime. The Magistrate Judge recommends granting

Respondent’s motion for summary judgment and dismissing this case. ECF No. 29. Specifically,

the report recommends dismissal of each of the grounds because: Grounds 1 and 6 are matters of

2

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Page 3 of 6

state law and not cognizable in a federal habeas petition, and the state Court of Appeals rejections

of Grounds 2, 3, 4, and 5 were not contrary to or an unreasonable application of federal law, or

based on unreasonable determinations of facts. Therefore, no ground survives summary judgment

in this federal habeas action.

Petitioner objects to the Report. ECF No. 31. As to Ground 1, he asserts admission of the

photographs violated Federal Rule of Evidence 403. Id. at 1. On Ground 2, he contends the Court

of Appeals’ determination was an unreasonable application of Rule 61 regarding Harmless Error,

because the video testimony was used to corroborate other testimony and “properly confronting”

the witness “could have resulted in different answers.” Id. at 2. Petitioner objects to the findings

on Ground 3 because his statement was a key piece of evidence and was coerced, not voluntary.

For Grounds 4 and 5, Petitioner argues these were clear violations of federal law and it was not his

burden to prove potential jurors were influenced by the handcuffs or statements made were heard

by jurors. On Ground 6, Petitioner says his sentence is illegal and should be corrected.

Petitioner’s objection on Ground 1 is overruled, as it relies on a Federal Rule of Evidence

that would not have been utilized in his state court criminal proceedings. Petitioner attempts to

rely on this Rule in order to make this ground cognizable in a federal habeas petition; however, his

argument is to no avail. Ground 1 cannot be remedied in a federal proceeding and is thus

dismissed.

Similarly, in Petitioner’s objections to Ground 2, he attempts to utilize Federal Rule of

Civil Procedure 61, “Harmless Error,” to save his claim regarding the Appellate Court’s finding

of harmless error for the video testimony. However, the Federal Rules of Civil Procedure would

not have applied in the South Carolina Appellate Court’s determination of harmless error. To the

extent Petitioner relies upon South Carolina Rule of Civil Procedure 61, there would not have been

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an unreasonable application of federal law for this court to determine. Insofar as Petitioner alleges

a violation of his Sixth Amendment right to confront witnesses against him, the court agrees with

the Magistrate Judge that the South Carolina Court of Appeals’ determination of harmless error

was not contrary to, or an unreasonable application of, federal law, or was based on an

unrea sonable determination of the facts.

On Ground 3, Petitioner objects to the Magistrate Judge’s determination that the Court of

Appeals’ decision was not contrary to federal law or an unreasonable determination of the facts.

ECF No. 31 at 3. Petitioner asserts admission of the statement had a substantial and injurious

impact on the verdict, because the State referred to the statement as its key piece of evidence. Id.

He contends the statement was erroneously admitted because it was coerced by the officers. Id.

The court agrees with the Magistrate Judge that the Court of Appeals’ determination

regarding Petitioner’s statement was not an unreasonable determination of the facts or contrary to

federal law. Instead, as the Report explains, Petitioner’s Sixth Amendment right was not violated

as federal law allows comments such as those made by the officers during his interrogation.

Further, there was no record evidence of coercion to the extent that Petitioner was unable to freely

decide how to answer the officers’ questions, or that Petitioner did not have capacity to be

interrogated. The court overrules Petitioner’s objections regarding Ground 3.

Petitioner objects to the Report’s findings on Ground 4, arguing he should have been

granted a mistrial because he was escorted by officers, in handcuffs, in view of potential jurors

prior to jury selection. The Court of Appeals upheld the trial court’s denial of a motion for mistrial,

and the Report found this decision was not contrary to federal law or an unreasonable

determination of the facts. Petitioner contends it was not his burden to attempt to remedy this via

curative instruction or otherwise address the issue before the jury at voir dire. In addition, he

4

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Date Filed 06/27/23

Entry Number 34

Page 5 of 6

submits the Court of Appeals’ decision was contrary to federal law because criminal defendants

are to be tried free from bonds and shackles except in extraordinary circumstances.

However, Petitioner was not in the courtroom when he was in handcuffs, and cannot show

any of the jury members saw him or were influenced by this if they did. Thus, the court agrees

this determination by the Court of Appeals was not contrary to federal law or an unreasonable

determination of the facts, and Petitioner’s objection to Ground 4 is overruled.

On Ground 5, Petitioner argues a mistrial should have been granted because the jury was

tainted by two of the State’s witnesses discussing evidence in the case near potential jurors. The

Court of Appeals affirmed denial of a mistrial because the record did not show any juror actually

heard the comments or was prejudiced by them. Petitioner contends it does not matter whether

jurors who specifically heard the statements or would admit to hearing them were identified,

“because this is a blatant violation clearly establish federal law.” ECF No. 31 at 4 (errors in

original).

The court agrees with the Magistrate Judge the Court of Appeals’ decision was not contrary

to federal law or an unreasonable determination of the facts, when there was no record evidence

of a jury member actually hearing the comments or being prejudiced by them. Petitioner’s

objection on this ground is therefore overruled.

Finally, the Report found Ground 6 was not cognizable in federal habeas petition. Petitioner

claimed the trial court erred in sentencing him to five years’ imprisonment for possession of a

weapon in violation of state law providing it does not apply when sentenced to life without parole

for an accompanying violent crime. Petitioner objects to the Report, noting he cannot cite any

federal lav/ but requests the court to review this unlawful sentencing. However, the court agrees

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Entry Number 34

Page 6 of 6

with the Report this state sentencing issue is not one cognizable in a habeas petition. Accordingly,

the court overrules Petitioner’s objection.

Conclusion

For the reasons above, after de novo review of the record, the applicable law, the Report

and Recommendation of the Magistrate Judge, and Petitioner’s objections, the court agrees with

the findings and conclusions of the Magistrate Judge. Accordingly, the court adopts the Report,

grants summary judgment for Respondent (ECF No. 20), and dismisses the Petition with prejudice.

CERTIFICATE OF APPEALABILITY

The governing law provides that:

(c)(2) A certificate of appealability may issue ... only if the applicant has made a

substantial showing of the denial of a constitutional right.

(c)(3) The certificate of appealability .. . shall indicate which specific issue or issues

satisfy the showing required by paragraph (2).

28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists

would find this court’s assessment of his constitutional claims is debatable or wrong and that any

dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell,

537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d

676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of

appealability has not been met. Therefore, a certificate of appealability is denied.

IT IS SO ORDERED.

s/Cameron McGowan Currie

CAMERON MCGOWAN CURRIE

Senior United States District Judge

Columbia. South Carolina

June 27, 2023

6

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Appendix E

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entered June 27, 2007

United States v. Whitmore No. 03-3022 Court of Appeals for the District of Columbia Judgement

enetered June 14, 2004

United States v. Perkins No. 96-3138 Court of Appeals for the District of Columbia Judgement

entered November 24,1998

United States Constitution Amendment V Due Process Clause

United States Constitution Amendment V Self Incrimination

United States Constitution Amendment VI Jury Trial for Crimes and Procedural Rights