CHARLES NEMON VANDROSS, Petitioner - Appellant, v. BRYAN STIRLING, Commissioner, South Carolina Department of Corrections, and Broad River Correctional Institution, Respondent - Appellee.
No. 18-6916
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
January 26, 2021
PUBLISHED. Argued: October 28, 2020. Appeal from the United States District Court for the District of South Carolina, at Aiken. Richard Mark Gergel, District Judge. (1:17-cv-02484-RMG)
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Motz and Judge Richardson joined.
ARGUED: E. Charles Grose, Jr., GROSE LAW FIRM, LLC, Greenwood, South Carolina, for Appellant. Michael Douglas Ross, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON BRIEF: Elizabeth A. Franklin-Best, BLUME FRANKLIN-BEST & YOUNG, LLC, Columbia, South Carolina, for Appellant. Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, Melody J. Brown, Senior Assistant Deputy Attorney General, J. Anthony Mabry, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.
In his application for a writ of habeas corpus filed under
We granted a certificate of appealability on the ineffective-assistance issue and now affirm. Even though the district court did not restrict its review by considering only the state court record, as required in the circumstances, but instead considered an affidavit of a forensic expert that Vandross presented for the first time in the district court, we nonetheless agree with the district court‘s conclusion that the expert failed to show prejudice with evidence or a proffer of evidence “of what a defensive forensic expert would have testified to and how that could have altered the trial.” The forensic expert only identified investigatory issues that he or another forensic expert could have explored and did not test or challenge any evidence actually presented to the jury so as to support a
I
The proof against Vandross at his state trial in Greenwood County, South Carolina, consisted mostly of the testimony of his former girlfriend, JoAnn Suber Wilson, and forensic evidence that corroborated some of her testimony. Generally, Wilson testified that following an argument with Vandross, Vandross broke into her house, murdered the man whom Wilson was then with, and then kidnapped her at gunpoint.
More particularly, Wilson testified that after she and Vandross began dating in July 2003, Vandross moved into her house, and the two lived together on and off for the next 12 to 14 months. Eventually, though, he moved into his own apartment nearby, but he kept a key to Wilson‘s house. He also gave Wilson a key to his apartment. After an argument on October 31, 2004, Wilson asked Vandross to leave her house, and he did so, but he kept her key. Because she became scared of Vandross, she asked a prior boyfriend, Sanford Best, to stay with her in her house, and he agreed. The next day, on November 1, Vandross went to Wilson‘s workplace, and the two exchanged keys. Two days later, on November 3, Wilson received a call from a friend that prompted her that same day to seek a restraining order against Vandross. She received a no-trespassing notice. Later that day, when she and Best were watching her son‘s ball game, she saw Vandross, and he just “stare[d]” at them.
Wilson drove them back to her house, and while still parked, he instructed her to take off her outer shirt, combed her hair with his fingers, and cleaned some of the blood
Officer Chris Hammett testified that he found Vandross standing on Wilson‘s back porch. Following Hammett‘s command, Vandross handed over the unloaded gun, and the officer found the clip in Vandross‘s pants pocket. Officer James Boggs testified that, inside the house, the bedroom TV was “very loud” and that Best was lying dead on the bed with a gunshot wound to his head. Wilson testified at trial that she had never heard the gunshot.
To corroborate Wilson‘s testimony, the State presented forensic evidence analyzing evidence collected from the scene by an evidence technician.
The technician collected a gun residue kit from Vandross, and the subsequent test indicated that lead particles were on Vandross‘s shirt but that there was no detectable amount of the other two chemicals necessary to classify those particles as gunshot residue. No tests were conducted for gun residue on Wilson.
The State also conducted a series of DNA tests. A test of the gun recovered from Vandross did not reveal any DNA on the gun. Pieces of duct tape from Wilson‘s car had Wilson‘s DNA on them but not any blood or DNA from Vandross. Similarly, a test of the duct tape roll revealed Wilson‘s DNA on it but not Vandross‘s. Samples of blood taken from the bathroom belonged to Wilson. A test of Vandross‘s pants had Wilson‘s DNA on them.
The technician found a stocking cap on the back porch of Wilson‘s house, but it was never tested. He did not attempt to collect any fiber, hair, or fingerprint evidence in the house because Vandross was known to have been a recent resident.
A firearms expert testified that the gun recovered from Vandross was the same gun that fired the bullet that killed Best, and the technician collected a shell casing from the floor next to the bed.
A forensic pathologist analyzed Best‘s gunshot wound and testified that the abraded skin around the hole indicated that the gun was against the skin when fired. He stated further that the gun taken from Vandross was consistent with the wound. Finally, he testified that based on his own experience of firing pistols, it “would not be unusual” for someone in the same room not to hear a gunshot when it is fired directly against the skin.
During closing argument at trial, Vandross‘s attorney highlighted the gaps in the forensic evidence, pointing out that testing did not identify any of Best‘s DNA on Vandross‘s hands, clothing, or gun. He similarly highlighted the absence of Vandross‘s DNA on the duct tape. Finally, he argued that the shell casing‘s location was not consistent with where Vandross would have stood to shoot Best.
Following the jury‘s guilty verdict, Vandross appealed, and the South Carolina Court of Appeals affirmed his conviction. Vandross then applied to the Greenwood County
The state PCR court denied Vandross‘s PCR application on the merits, explaining, as to trial counsel‘s failure to call any expert witnesses:
Counsel testified he wanted to retain experts in this case, but Applicant had no funds with which to hire these experts. Counsel also testified he used the prior trial transcripts to fully cross-examine the witnesses, especially Wilson. Prejudice from trial counsel‘s failure to call witnesses cannot be shown where the witnesses do not testify at post-conviction relief. An Applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to establish prejudice from the witness’ failure to testify at trial. Applicant produced no such testimony of any expert witnesses at the PCR hearing, and therefore cannot show any resulting prejudice.
(Citations omitted).
On July 24, 2017, the Supreme Court of South Carolina denied Vandross‘s petition for a writ of certiorari to review the PCR court‘s ruling.
Petitioner‘s trial counsel never consulted or secured any experts for either of Petitioner‘s murder trials because he did not know that he could secure funding for them. Given the State‘s heavy reliance on forensic testimony, and the two prior [trials based on hung juries], counsel‘s performance was objectively both deficient and prejudicial.
Vandross asserted that his trial counsel did not make a strategic choice about the need for experts; indeed, his trial counsel conceded, when testifying at the PCR hearing, that experts would have been “very beneficial” to Vandross. Vandross argued further that the district court should not deny his application on the basis of the state‘s PCR ruling because his counsel in that proceeding was also ineffective. He maintained that “the procedural default” in failing to show prejudice at his state PCR hearing should be excused because state PCR counsel was ineffective in failing to hire experts to show prejudice, relying on Martinez v. Ryan, 566 U.S. 1, 17 (2012) (holding that, in limited circumstances, cause to excuse procedural default might be established by ineffective counsel in state collateral proceedings).
The district court approved funding for Vandross to retain a forensic expert to support his
By order dated July 20, 2018, the district court granted the State‘s motion for summary judgment. It agreed with the state PCR court that Vandross failed to establish prejudice from his trial counsel‘s alleged ineffective assistance because he offered no expert testimony at the PCR hearing to support his claim. The court concluded further that Dr. Morrison‘s affidavit did not demonstrate prejudice because it “fail[ed] to offer any substantive testimony that would have served to challenge the evidence offered by the state” at trial.
Vandross filed this appeal from the district court‘s order, and on February 4, 2019, we granted a certificate of appealability as to his claim of ineffective assistance of trial counsel for failing to retain experts and present expert testimony at trial.
II
In his
But this is the same claim that Vandross presented to the state PCR court and that the state court resolved on the merits. Vandross claimed in his state PCR application that he received the ineffective assistance because his counsel failed “to hire and interview or call to testify experts” in numerous distinct disciplinary areas to counter the State‘s evidence, including an “expert on guns,” a “doctor or blood expert,” a “handprint expert,” a “clothing expert,” and a “psychiatrist.” And he claimed that he “was prejudiced by counsel‘s failure.” Finally, he argued that “in every instance of ineffective assistance of counsel heretofore described . . . his United States Constitutional rights were violated. The Sixth Amendment guarantees the right to effective assistance of counsel in criminal prosecutions,” citing Strickland.
The PCR court considered Vandross‘s claim on the merits, reciting each expert requested and the reasons why that expert was claimed to be relevant. But it also noted that “none of these ‘experts’ were present to testify on his behalf at the PCR hearing” to “show any resulting prejudice.” In denying relief, the PCR court applied federal law, noting that it required Vandross to show (1) that his “counsel‘s performance was deficient,”
Prejudice from trial counsel‘s failure to call witnesses cannot be shown where the witnesses do not testify at post-conviction relief. Underwood v. State, 309 S.C. 560, 425 S.E.2d 20 (1992); Bassett v. Thompson, 915 F.2d 932 (4th Cir. 1990), cert. denied, 499 U.S. 982 (1991). An Applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to establish prejudice from the witness’ failure to testify at trial. Bannister v. State, 333 S.C. 298, 509 S.E.2d 807 (1998). Applicant produced no such testimony of any expert witnesses at the PCR hearing, and therefore cannot show any resulting prejudice.
In short, the state PCR court decided on the merits the very same claim that Vandross set forth in his
While
The state PCR court correctly recited the requirements of Strickland and correctly applied those requirements to the facts in the record. In doing so, it also concluded correctly that no evidence was presented or offered to show prejudice in that any of the forensic evidence presented by the State at trial was flawed. While Vandross did point out various gaps in the State‘s evidence, he highlighted those gaps to the jury. Moreover, he did not offer or present any evidence to the state PCR court that would have filled the gaps such that it would show a reasonable probability of a change in the result. Simply, Vandross has not shown that the PCR court‘s decision was an unreasonable application of Strickland as is necessary to show an exception to the
III
Rather than attempting to demonstrate that the PCR court‘s decision was an unreasonable application of federal law, Vandross argues that his failure to show prejudice at the state PCR hearing was the result of the ineffective assistance of counsel at that hearing. Like his trial counsel, his state PCR counsel failed to present any expert testimony,
Vandross‘s argument to excuse his failure to show prejudice at the state PCR hearing raises two issues. Can Vandross supplement the state court record in the federal court on the ground that his state PCR counsel was deficient, relying on Martinez? And
A
As a general rule, our review under
Vandross nonetheless insists that Dr. Morrison‘s affidavit may be considered because his failure to present evidence of prejudice at his state PCR hearing was itself the product of the ineffective assistance of his state PCR counsel. In making this argument, he seeks to apply cases involving the doctrine of procedural default, analogizing his PCR counsel‘s failure to a default. Normally, if an applicant does not present a claim to a state court and that court does not have an opportunity to consider it, review by a federal court is barred because the claim is procedurally defaulted. See Coleman, 501 U.S. at 731–32. But, as Vandross correctly argues, the Supreme Court has recognized a “narrow exception” to that rule in Martinez, 566 U.S. at 9. As the Martinez Court stated, a federal court may review a “substantial” ineffective assistance of counsel claim, notwithstanding procedural default, when state law required that the claim be raised in the state “initial-review collateral proceeding” and, in that initial proceeding, “there was no counsel or counsel in
In effect, Vandross requests that we carry the Martinez exception to procedural default over to this case to provide an exception to the distinct rule that our review under
We have already held on more than one occasion that Martinez, which authorizes a federal court to consider a new claim that was procedurally defaulted, does not provide a similar exception for new evidence supporting a claim that was in fact presented in state court. See, e.g., Gray v. Zook, 806 F.3d 783, 789 (4th Cir. 2015) (“[I]f claims are not procedurally defaulted — that is, they were properly presented to the state court — then Martinez does not apply“). Other courts of appeals have uniformly reached the same conclusion. See, e.g., Escamilla v. Stephens, 749 F.3d 380, 395 (5th Cir. 2014) (“[O]nce a claim is considered and denied on the merits by the state habeas court, Martinez is inapplicable, and may not function as an exception to Pinholster‘s rule that bars a federal habeas court from considering evidence not presented to the state habeas court“); Moore v. Mitchell, 708 F.3d 760, 785 (6th Cir. 2013) (“[Applicant] is not asking that we afford a Martinez-like review of a procedurally defaulted claim, but rather that we turn Martinez into a route to circumvent Pinholster“); Floyd v. Filson, 949 F.3d 1128, 1147–48 (9th Cir. 2020) (same).
In Gray, we held that, just like here, a federal court deciding a
In this case, Vandross did not procedurally default his ineffective-assistance claim before the state PCR court. Rather, he attempted to present it fully, arguing both his counsel‘s deficiency and resulting prejudice. He simply sought, in the federal court, to supplement the evidence in support of that claim in order to better show prejudice. Thus, while Dr. Morrison‘s affidavit might have strengthened Vandross‘s ineffective-assistance claim, it did not “fundamentally alter” it. Gray, 806 F.3d at 799.
Accordingly, our review is limited to the state PCR court‘s record, and the district court‘s consideration of Dr. Morrison‘s affidavit was error. On that record, Vandross‘s
B
Vandross relies almost exclusively on Dr. Morrison‘s affidavit to establish in federal court that his trial counsel‘s deficient performance resulted in prejudice. He argues that it shows that his trial counsel never subjected Wilson‘s account “to scientific scrutiny” and that there is a reasonable probability that doing so would have resulted in a different outcome.
In his affidavit, Dr. Morrison states that “either I, or another forensic investigator, could have assisted trial counsel in challenging the forensic evidence in this case. In my opinion, law enforcement did not undertake a very thorough investigation, and I (or another forensic investigator) could have assisted trial counsel in bring[ing] this to the jury‘s attention.” (Emphasis added). He then lists 14 distinct issues that could have been challenged at trial or could have been investigated further. He concludes, “Had trial counsel or PCR retained counsel [retained me or another forensic investigator] for purposes of challenging the forensic science testimony and the lack of physical evidence in this case, I believe it would have undermined the integrity of the State‘s case against Mr. Vandross.”
Remarkably, Dr. Morrison did not himself test, or have some other expert test, any of the relevant evidence. He did not even use his expertise to speculate as to what such testing would have found. Instead, he simply put forth a menu of options that a forensic expert could have explored in greater depth. Yet, from the substance of Dr. Morrison‘s
More is required. When a petitioner‘s ineffective assistance of counsel claim rests on trial counsel‘s failure to call particular witnesses, expert or otherwise, we require “a specific proffer . . . as to what an expert witness would have testified.” Goins v. Warden, Perry Corr. Inst., 576 F. App‘x 167, 173 (4th Cir. 2014) (per curiam). A petitioner‘s failure to do so “reduces any claim of prejudice to mere speculation and is fatal to his claim.” Id. (emphasis added); see also Bassette v. Thompson, 915 F.2d 932, 940 (4th Cir. 1990) (“The great failing of the appellant on his claim that other evidence should have been presented during the sentencing phase of his trial is the absence of a proffer of testimony from a witness or witnesses he claims his attorney should have called“); Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) (“[A]n allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced“).
The South Carolina courts require the same. See Bannister v. State, 509 S.E.2d 807, 809 (S.C. 1998) (“This Court has repeatedly held a PCR applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to establish prejudice from the witness’ failure to testify at trial“); Porter v. State, 629 S.E.2d 353, 358 (S.C. 2006), abrogated on other grounds by Smalls v. State, 810 S.E.2d 836 (S.C. 2018) (“Mere speculation of what a witness’ testimony may be is insufficient to satisfy the burden of showing prejudice in a
Without proffering any evidence of what an expert would have concluded, Dr. Morrison‘s affidavit suffers from what these cases describe as mere speculation. The affidavit identifies only where a forensic expert could have looked for exculpatory evidence, but it failed to present that exculpatory evidence — or even proof that it exists — to establish prejudice. In short, Dr. Morrison‘s affidavit, even if properly considered, would not have helped Vandross‘s claim, as the district court concluded.
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We conclude that Vandross has failed to establish that the state PCR court‘s decision involved an unreasonable application of federal law when it concluded that Vandross failed to prove the requisite prejudice for his ineffective assistance of counsel claim and therefore that the district court did not err in denying his
AFFIRMED