Opinion
CA No. 9:20-cv-00666-TMC-MHC
12-08-2020
Richard F.V. Bowman, III, Petitioner, v. Warden James, Warden Kershaw C.I., Respondent.
REPORT AND RECOMMENDATION
Petitioner Richard F.V. Bowman, III, ("Petitioner"), a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. Respondent Warden James ("Respondent") filed a Motion for Summary Judgment, along with a Return and Memorandum ("Motion"). ECF Nos. 22, 23. By order filed May 8, 2020, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the Motion. ECF No. 24. Petitioner filed a Response in Opposition, ECF No. 27, Respondent filed a Reply, ECF No. 28, and Petitioner filed a Sur Reply, ECF No. 29. The matter is ripe for review.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings, and this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the Court recommends that Respondent's Motion be granted and the Petition be dismissed with prejudice.
I. BACKGROUND
The procedural history as described by Respondent has not been disputed by Petitioner in his Response and is set forth as follows. Petitioner was indicted on April 2, 2015, by the Newberry County Grand Jury for Homicide by Child Abuse. ECF No. 22 at 1-2. Petitioner was subsequently indicted on May 13, 2016, for Aiding and Abetting Homicide by Child Abuse. Id. Petitioner testified as a witness in the trial of his co-defendant, Theia McArdle, in April 2016. Id. McArdle was convicted of Homicide by Child Abuse and was sentenced to thirty years imprisonment. Id. On July 18, 2016, Petitioner pled guilty to Aiding and Abetting Homicide by Child Abuse, while the indictment for Homicide by Child Abuse was nolle prossed. Id. Petitioner's guilty plea was a "straight up" guilty plea, and Petitioner was sentenced to fifteen years imprisonment. Id. Petitioner did not file a direct appeal. Id.
On December 22, 2016, Petitioner filed a pro se Post-Conviction Relief (PCR) Application, wherein he alleged, in pertinent part:
1. Ineffective Assistance of CounselECF No. 22-1 at 24-28 (errors in original). On September 13, 2017, Petitioner submitted an amended application, adding the following grounds for relief:
2. Unconstitutional Guilty Plea
a. I was denied key witnesses that could and would have shed the truth to the fact that I'm not guilty of this crime . . .
b. My 5th and 6th Amendment rights were violated because my defense team wasn't allowed a respectable doctor to look over the child's body and determine that the bruises and other marks on the child's body happened weeks or days prior. Or to correctly determine the child's cause of death.
c. My lawyer failed to inquiry about my competency to stand trial or if I wanted to stand trial. That being stated I was not offered or sent to a "competency to stand trial evaluation." I should have been offered that due to my history as a US Army War Veteran.
1. Ineffective Assistance of Counsel as to Russell O. Brown, Esquire:
a. Counsel was ineffective because [Petitioner] detrimentally relied on a plea agreement from the Solicitor, wherein the [Petitioner] would testify for the State relying on the Solicitor's statement that he "would help him" if the [Petitioner]
testified. [ ] Plea counsel was ineffective in failing to have plea agreement between defendant and solicitor's office enforced based on detrimental reliance and memorialized into writing.ECF No. 22-1 at 39 (errors in original).
b. Counsel failed to use [Petitioner]'s VA records as mitigation during sentencing.
c. Counsel failed to move to have the charges dismissed and/or appeal the guilty plea arguing the charges should be dismissed for lack of accomplice liability. [ ].
On October 10, 2017, an evidentiary hearing was held on the matter. ECF No. 22-1 at 223-57. Petitioner was present and testified on his own behalf. Petitioner's plea counsel also testified. On December 21, 2017, the PCR Judge issued an Order of Dismissal, denying and dismissing the PCR Application with prejudice. ECF No. 22-1 at 258-69. The Order of Dismissal was filed December 29, 2017.
Petitioner timely appealed from the denial of his PCR Application by way of a Johnson Petition for a writ of certiorari before the Supreme Court of South Carolina. In the Johnson Petition, Petitioner raised the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988). A Johnson petition is the state PCR appeal analogue to an Anders brief. See Anders v. California, 386 U.S. 738 (1967). A brief filed pursuant to Anders effectively concedes that the appeal lacks a meritorious claim and provides a framework for counsel to withdraw. See id.; Johnson, 364 S.E.2d 201.
Did the judge err in refusing to find counsel ineffective for not obtaining and presenting in mitigation Petitioner's records from the Veteran's Administration documenting that Petitioner suffered from post-traumatic stress disorder?ECF No. 22-4 at 3. Petitioner did not file a pro se Response to the Johnson Petition. On October 9, 2019, the Supreme Court of South Carolina denied certiorari and granted counsel's request to withdraw. ECF No. 22-5. The Remittitur was issued on October 25, 2019, and filed October 28, 2019. ECF No. 22-6.
On February 7, 2020, Petitioner timely filed this § 2254 Petition ("Petition"). ECF No. 1. Petitioner raises the following grounds for relief:
Ground one: Ineffective Assistance of Counsel.ECF No. 1 at 5-8 (errors in original).
Supporting facts: Attorney failed to call and subpoena character and fact witnesses stating they could not be subpoenaed because they lived "out of state." Witnesses: Amanda Freeman, Erica Butler, Michela Woods, Justin Madore, Megan Cody, Tony Kendall all gave favorable statements on behalf of defendant befor[e] trial. Defendant returned Vet. suffering from PTSD yet Attorney failed to request a competency hearing on client's behalf or his VA records and a question as to the time and exact cause of death that attorney failed to investigate is also in question, however, [Petitioner]'s Attorney failed to procure an independent Medical Examiner to answer the question of the exact cause of death.
Ground two: Unconstitutional Guilty Plea.
Supporting facts: Was promised by the prosecution a lighter sentence in exchange for testimony against accused mother. Defendant done all asked of him by prosecution, however, when Defendant's turn in court came, the prosecution failed to honor the agreement. Defendant did not receive the assistance promised him in exchange for his plea, therefore, the plea is unconstitutional. Defendant would not of pled if he hadn't been told a deal for a lesser charge and less time was in place. Defendant had a number of defenses for a trial, but took a deal based on misrepresented promises. A promise of assistance by and through the Prosecutor's office by a duly elected official, whether on paper or made orally, as a bargaining chip for a guilty plea, should be honored by the State.
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party "shows there is no genuine dispute as to any issue of material fact" and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). "Only 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." Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be "liberally construed" and a pro se complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). However, the requirement of liberal construction does not mean a court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can a court assume the existence of a genuine issue of material fact where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) ("The 'special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.").
B. Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under § 2254(d),
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim--28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding"). A state court's decision is contrary to clearly established federal law if that court "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. (quoting Williams, 529 U.S. at 413).
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the State court proceeding.
Because "review under § 2254(d)(1) focuses on what a state court knew and did," this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). "Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus,] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made." Id. (citation and internal quotation marks omitted).
Accordingly, "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, 529 U.S. at 410. Further, factual findings "made by a State court shall be presumed to be correct," and Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. PROCEDURAL BARS
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States[,]" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural default/bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before a petitioner has appropriately exhausted available state-court remedies or has otherwise defaulted/bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
A. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies. See 28 U.S.C. § 2254(b)-(c). The statute requires that, before seeking habeas corpus relief, a petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Stated plainly, in the interest of giving state courts the first opportunity to consider alleged constitutional errors in state proceedings, a § 2254 petitioner is required to "exhaust" all state remedies before a federal district court can entertain his claims. Thus, a federal habeas court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will generally result in the application of a procedural bar by the South Carolina Supreme Court. See Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009) (discussing procedural bar and noting the "general rule" in South Carolina is that where a party fails to file a Rule 59(e) motion, the argument is forfeited).
Furthermore, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45. In South Carolina, a claim is not procedurally barred from review in this Court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals. See Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (S.C. 1990) ("[W]hen 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.").
B. Procedural Default/Bypass
When a federal habeas petitioner has failed to raise a claim at the appropriate time in state court and has no further means of bringing that issue before the state courts, the claim will be considered procedurally defaulted, and he will be procedurally barred from raising the issue in his federal habeas petition. Smith v. Murray, 477 U.S. 527, 533 (1986). This situation is sometimes referred to as procedural bypass, as the petitioner has "bypassed" his state remedies. In other words, procedural default/bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Procedural default/bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in an appeal that could have been raised at an earlier time. See, e.g., Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an "issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review" (citation omitted)). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains:
[state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate
all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984). If a federal habeas petitioner has procedurally defaulted his opportunity for relief in the state courts, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear. Teague v. Lane, 489 U.S. 288, 297-98 (1989).
C. Cause and Actual Prejudice
Notwithstanding the foregoing, a federal court may consider claims that have not been presented to the highest South Carolina court with jurisdiction in very limited circumstances. See Granberry v. Greer, 481 U.S. 129, 131 (1987). Indeed, because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the state's courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or by "prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice." Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008).
A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Murray v. Carrier, 477 U.S. 478, 488-97 (1986). Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Id. at 496.
IV. DISCUSSION
A. Ground One.
Ground One in the Petition contains three separate claims for ineffective assistance of counsel. The first claim alleges that plea counsel was ineffective in failing to call and subpoena character and fact witnesses. The second claim alleges plea counsel was ineffective for failing to request a competency hearing and request medical records. The third claim alleges plea counsel was ineffective for failing to procure an independent medical examiner. The undersigned finds that the first claim is procedurally barred from habeas review, and that the second and third claims are without merit.
1. Failure to call and subpoena witnesses.
Petitioner first alleges that plea counsel was ineffective when he failed to call and subpoena character and fact witnesses. Specifically, Petitioner contends that the witnesses he listed in his Petition all gave favorable statements on his behalf before trial, and that plea counsel was ineffective for failing to secure these out-of-state witnesses for his defense.
This claim was raised in Petitioner's initial PCR Application. See ECF No. 22-1 at 28. However, at the beginning of the PCR hearing, Petitioner's PCR counsel informed the PCR Judge that they were striking this claim for relief because they did not have any witnesses to testify. ECF No. 22-1 at 227:1-5. In the PCR Judge's Order of Dismissal, the PCR Judge noted the voluntary striking of the allegation and dismissed the claim without analysis. ECF No. 22-1 at 261. As a result, this claim was not adjudicated on the merits in state court. See S.C. Code Ann. § 17-27-80; 28 U.S.C. § 2254(d) (the claim raised in the petition must be "adjudicated on the merits" by the state court); Simmons v. State, 788 S.E.2d 220, 225 (S.C. 2016) (noting a PCR Judge's general denial of a claim "does not constitute a sufficient ruling on any issues since it does not set forth specific findings of fact and conclusions of law").
Moreover, Petitioner did not make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP, to preserve the issue for state appellate review. See Simmons, 788 S.E.2d at 225. Therefore, Petitioner forfeited this claim for purposes of federal habeas review. See Smith, 477 U.S. at 533; Bostick, 589 F.3d at 162-65 (noting where a party fails to file a Rule 59(e) motion, the argument is forfeited). Accordingly, the undersigned finds that Petitioner failed to exhaust this claim in state court and, as such, is procedurally barred from raising this issue now. See 28 U.S.C. § 2254(b)-(c).
In his Response, Petitioner argues that his PCR counsel "should never have advised Petitioner to withdraw this issue" and argues that the witness statements show his actual innocence, which is sufficient to overcome the procedural bar. ECF No. 27 at 2. Construing Petitioner's arguments liberally, it appears he is arguing that his PCR counsel was ineffective for withdrawing this claim during his initial PCR proceedings, which constitutes "cause" and would excuse the default under Martinez v. Ryan, 566 U.S. 1 (2012). In Martinez, the Supreme Court recognized that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial," but the petitioner "must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one"—that is, that it has "some merit." Martinez, 566 U.S. at 9, 14.
Upon review, PCR counsel's decision to withdraw this claim was not ineffective assistance of counsel sufficient to show cause under Martinez. Indeed, Petitioner did not have any of the listed witnesses available to testify for him at the PCR hearing, and he did not have any affidavits from any of these witnesses. As a result, Petitioner would have been unable to establish what these purported witnesses could have testified to had they been subpoenaed at the trial level; consequently, PCR counsel did not render ineffective assistance of counsel by withdrawing the claim. See Bannister v. State, 509 S.E.2d 807, 809 (S.C. 1998) (noting 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" and that an "applicant's mere speculation what the witnesses' testimony would have been cannot, by itself, satisfy the applicant's burden of showing prejudice" (emphasis in original) (citation omitted)).
Moreover, Petitioner has failed to show the underlying ineffective assistance of plea counsel claim was a "substantial one" having "some merit." See Martinez, 566 U.S. at 15-16 ("When faced with the question whether there is cause for an apparent default, a State may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards."). Therefore, the Court recommends that Respondent's Motion be granted as to this first claim in Ground One in the Petition. See Murray, 477 U.S at 496 (noting when a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, federal courts generally decline to hear the claim).
2. Failure to request a competency hearing and request medical records.
Second, Petitioner argues plea counsel rendered ineffective assistance of counsel by failing to inquire about his competency to stand trial and contends plea counsel should have obtained Petitioner's medical records from the VA to use as mitigation during sentencing.
The United States Supreme Court has said that a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984).
As to the first prong, a court's evaluation of counsel's performance under this standard must be "highly deferential," so as to not "second-guess" the performance. Id. at 689. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).
To establish the second prong of Strickland, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A "reasonable probability" has been defined as "a probability sufficient to undermine confidence in the outcome." Id.
While Strickland itself is a deferential standard, when both § 2254(d) and Strickland apply, review is "doubly" deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). "Thus, [t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable—a substantially higher threshold." Valentino, 972 F.3d at 580 (citation and internal quotation marks omitted). Indeed, when § 2254(d) applies, the question becomes "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. (citation and internal quotation marks omitted).
The two-part test enunciated in Strickland applies to challenges to guilty pleas based on ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). "[I]n order to satisfy the 'prejudice' requirement [set forth in Strickland ], the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59.
Petitioner testified as to this claim at the PCR hearing. The PCR Judge accurately summarized Petitioner's testimony as follows:
[Petitioner] testified that [plea counsel] should have inquired into [Petitioner]'s competency to stand trial. He testified that his military records showed that he had post-traumatic stress disorder and combat stress disorder. [Petitioner] testified that [plea counsel] should have had him evaluated for competency to stand trial. He testified that his mother was trying to get his military records to give to [plea counsel]. [Petitioner] testified that [plea counsel] told him that these records would not affect his case. He further testified that he did not bring any of his competency issues to the plea judge's attention.ECF No. 22-1 at 262-63.
Plea counsel also testified as to this claim at the PCR hearing. The PCR Judge accurately summarized plea counsel's testimony as follows:
[Plea counsel] testified that he had no issues with [Petitioner]'s competency to stand trial and [Petitioner] had no manifestations of competency issues. He testified that he could not get [Petitioner]'s VA medical records due to HIPAA restrictions. [Plea counsel] further testified that he did not need [Petitioner]'s medical records for the guilty plea.Id. at 263.
The PCR Judge found plea counsel's testimony persuasive—specifically, that plea counsel did not recognize any issues concerning Petitioner's competency and did not notice any manifestations of competency issues in Petitioner. Id. The PCR Judge found credible plea counsel's testimony "that he attempted to access Applicant's VA records but was unable to do so due to HIPAA restrictions." Id. at 264.
With regard to Petitioner, the PCR Judge found that his testimony at the PCR hearing contradicted his testimony before the plea judge. The PCR Judge also noted that Petitioner did not show he was incompetent to stand trial or plead guilty, as he failed provide evidence to support those contentions. ECF No. 22-1 at 264. As to the VA records, the PCR Judge noted that Petitioner failed to produce his VA records, and the PCR Judge would not speculate as to its contents or whether the records would have been beneficial. Id.
Specifically, the PCR Judge noted that the plea judge asked Petitioner, "Have you ever been treated for any mental illness issues, problems understanding what's going on or were you in special education when you were in school?" and Petitioner replied, "No, Your Honor." ECF No. 22-1 at 263.
Consequently, the PCR Judge held that Petitioner failed to meet his burden in proving deficiency or resulting prejudice under Strickland. Specifically, the PCR Judge found plea counsel's performance was reasonable under the circumstances and not deficient. The PCR Judge further found Petitioner failed to provide evidence that he would not have pled guilty and would have proceeded to trial, and also found Petitioner failed to show the outcome of his plea and sentence would have been different had plea counsel obtained and utilized the VA records.
As noted above, the PCR Judge found plea counsel's testimony persuasive while finding Petitioner's testimony contradictory, inherently finding plea counsel as credible and Petitioner not credible. Such a factual finding on credibility is presumed to be correct, and Petitioner has the "burden of rebutting the presumption . . . by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Petitioner has not done so here. Accordingly, the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding that plea counsel was not deficient with regard to assessing Petitioner's competency or attempting to obtain his medical records. See 28 U.S.C. § 2254(d); McWee v. Weldon, 283 F.3d 179, 186 (4th Cir. 2002) (affording deference to a state court's credibility determination on testimony establishing underlying facts); Jeter v. State, 417 S.E.2d 594, 596 (S.C. 1992) (finding trial counsel not deficient for failing to request mental examination of defendant—which might have formed the basis of an insanity defense or determination that defendant was not competent to stand trial—where trial counsel reasonably relied on his own perceptions that defendant was not mentally deficient); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable).
Additionally, in the context of a guilty plea, the prejudice prong requires a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial. Hill, 474 U.S. at 59. As noted by the PCR Judge, Petitioner did not provide any evidence of his alleged incompetency, nor did he produce the medical records which he contended his plea counsel should have obtained. Consequently, Petitioner failed to rebut the PCR Judge's factual determinations with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Jeter, 417 S.E.2d at 596 ("In a PCR action, the petitioner bears the burden of proof and is required to show by a preponderance of the evidence he was incompetent at the time of his plea."); Palacio v. State, 511 S.E.2d 62, 66 (S.C. 1999) (finding that where contents of challenged documents were not presented at the PCR hearing, defendant failed to present any evidence of probative value demonstrating how counsel's failure to obtain the unproduced documents in a more timely fashion prejudiced his defense). Thus, the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable). Accordingly, the undersigned recommends that Respondent's Motion be granted as to this claim in the Petition.
3. Failure to procure an independent medical examiner.
Finally, in Ground One, Petitioner argues that plea counsel was ineffective for failing to retain an independent medical examiner to evaluate the victim's body and determine when certain bruises occurred and establish the cause of death. He alleged that there was evidence that the victim could have died as the result of blunt force trauma or vomit in the lungs.
Petitioner testified as to this claim at the PCR hearing. The PCR Judge accurately summarized Petitioner's testimony as follows:
[Petitioner] testified that he wanted to get a second opinion from another doctor but was told he could not do so because the [victim's] body had already been cremated. [Petitioner] testified that he was originally represented by Joseph St. Pierre, Esquire, but [Petitioner] relieved him as counsel in August 2015. He testified that he told [plea counsel] about getting a second medical opinion, but the [victim's] body was cremated.ECF No. 22-1 at 261.
Plea counsel also testified as to this claim at the PCR hearing. The PCR Judge accurately summarized plea counsel's testimony as follows:
[Plea counsel] testified that he met with [Petitioner] numerous times and went over the discovery, including photos and videos. He testified that he viewed the autopsy report that explained the cause of death as blunt force trauma. [Petitioner] testified that it was impossible for him to get a second opinion because the victim was cremated by the time he assumed representation.Id. at 261-62.
In the Order of Dismissal, the PCR Judge ruled:
This Court finds Petitioner has failed to meet his burden of proving that [plea counsel] was deficient for failing to have a doctor look over the [victim's] body to determine the origin of his bruises and the cause of death. "Failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to result." Porter v.
State, 368 S.C. 378, 385-86, 629 S.E.2d 353, 357 (2006) (citing Moorehead v. State, 329 S.C. 329, 334, 496 S.E.2d 415, 417 (1998)). This Court finds [Petitioner] has failed to show that there is a reasonable likelihood a second opinion would provide a more favorable result than that of the autopsy. Most importantly, this Court finds that [plea counsel's] actions were not deficient given that the [victim's] body had already been cremated by the time [plea counsel] assumed representation. As such, it was impossible for [plea counsel] to get a second opinion and he cannot be deficient for failing to do so.Id. at 262. The PCR Judge further found that Petitioner failed to prove prejudice—specifically, that Petitioner failed to show he would not have pled guilty but would have proceeded to trial.
Upon review, the PCR Judge's determination with respect to deficiency was not unreasonable. Indeed, even if plea counsel had managed to retain an independent medical examiner, it would have been impossible to conduct Petitioner's desired investigation because the body had already been cremated by the time plea counsel began representing Petitioner. Accordingly, the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding that plea counsel was not deficient. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580.
Likewise, the PCR Judge's determination with regard to prejudice was not unreasonable. Where, as here, the "alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination [of] whether the error 'prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction [of] whether the evidence likely would have changed the outcome of a trial." Hill, 474 U.S. at 59. Here, Petitioner did not present any expert testimony from a pathologist at the PCR hearing or any other evidence that tended to show a second medical opinion would have provided a different result from the State's pathologist. Thus, Petitioner failed to rebut the PCR Judge's factual determination with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Lorenzen v. State, 657 S.E.2d 771, 776-77 (S.C. 2008) (holding where a PCR Applicant did not offer expert witness testimony at the PCR hearing, it was "merely speculative that these allegedly favorable expert witnesses would have aided in his defense"), abrogated on other grounds by Smalls v. State, 810 S.E.2d 836 (S.C. 2018); Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) (noting that "an allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced"). Consequently, the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding that Petitioner failed to show prejudice. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580. Accordingly, the undersigned recommends that Respondent's Motion be granted as to this claim in the Petition.
B. Ground Two
In Ground Two, Petitioner argues that his guilty plea was unconstitutional. Specifically, he argues that he was promised by the State that he would receive a lighter sentence in exchange for his testimony against his codefendant, Theia McArdle, but that the State failed to honor this agreement.
1. Procedural Bar
Respondent argues that this claim, as it is presented in the Petition, was not raised to or ruled on by the PCR Judge. Respondent contends that Petitioner did not raise a claim that his guilty plea was unconstitutional because of misconduct by the State before the PCR Judge; rather, Petitioner raised a claim for ineffective assistance of counsel for failing to enforce an agreement with the State or have that agreement reduced to writing. Thus, Respondent argues this claim is procedurally barred and should be dismissed, and further argues that Petitioner abandoned his ineffective assistance of counsel claim.
The undersigned agrees that this claim, as it is presented in the Petition, is not properly before this Court. A federal court's habeas review focuses on the state court decision that already addressed the claims, not "the petitioner's free-standing claims themselves." McLee v. Angelone, 967 F. Supp. 152, 156 (E.D. Va. 1997). This issue was not raised at trial or in a direct appeal.
However, in his Response to Respondent's Motion, Petitioner characterizes his claim in Ground Two as "Petitioner's claim of ineffective assistance" and later notes that he went forward with his guilty plea and answered the plea judge's questions "as his attorney instructed." ECF No. 27 at 3-4. Construing Petitioner's filings liberally, as this Court must, Petitioner is also attempting to raise the claim of ineffective assistance of counsel as he did before the PCR Judge. Therefore, in an abundance of caution, and in the interest of fairness and justice, the Court will address Petitioner's Ground Two insofar as he is raising a claim for ineffective assistance of counsel with regard to his guilty plea.
Petitioner was represented by counsel during the state PCR proceedings. Presumably, PCR counsel was adhering to the requirement that a claim in a PCR action in South Carolina must be characterized as one for ineffective assistance of counsel. See Al-Shabazz v. State, 527 S.E.2d 742, 747 (S.C. 2000) ("In a direct appeal, the focus generally is upon the propriety of rulings made by the circuit court in response to a party's motions or objections. In PCR, the focus usually is upon alleged errors made by trial or plea counsel. Therefore, when asserting the erroneous admission of evidence, a violation of a constitutional right, or other errors in a proceeding, the applicant generally must frame the issue as one of ineffective assistance of counsel." (emphasis added)); see also Drayton v. Evatt, 430 S.E.2d 517, 520 (S.C. 1993) ("Issues that could have been raised at trial or on direct appeal cannot be asserted in an application for post-conviction relief absent a claim of ineffective assistance of counsel."); Hyman v. State, 299 S.E.2d 330, 331 (S.C. 1983) ("The appellant argues also that sentencing for both crimes violated the prohibition on double jeopardy. She made no objection on this point at trial and may present it now only to support a claim of ineffective representation, not as a separate ground for relief.").
2. Merits
A guilty plea must represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant," North Carolina v. Alford, 400 U.S. 25, 31 (1970), and may be invalid if it was induced by threats or misrepresentations. See Brady v. United States, 397 U.S. 742, 755 (1970). However, a defendant's statements at the guilty-plea hearing are presumed to be true. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Unsupported allegations on appeal or in a collateral proceeding are insufficient to overcome representations made during the guilty-plea hearing. See Via v. Superintendent, Powhatan Corr. Ctr., 643 F.2d 167, 171 (4th Cir. 1981) (holding that statements at plea hearing that facially demonstrate plea's validity are conclusive absent compelling reason why they should not be, such as ineffective assistance of counsel).
Petitioner testified as to this claim at the PCR hearing. The PCR Judge accurately summarized Petitioner's testimony as follows:
[Petitioner] testified that [plea counsel] was ineffective for failing to have [Petitioner]'s plea agreement memorialized in writing. He testified that he detrimentally relied on a plea agreement where the Solicitor stated that he "would help" [Petitioner] if [Petitioner] testified against his codefendant, Theia McArdle. [Petitioner] testified that the solicitor told him that he needed [Petitioner] to testify against Ms. McArdle because he knew that [Petitioner] did not commit the crime. [Petitioner] testified that the solicitor told him that they could not put a plea agreement in writing. He further testified that he testified against his codefendant because of the assistant solicitor's promise to help him.ECF No. 22-1 at 265.
Plea counsel also testified as to this claim at the PCR hearing. The PCR Judge accurately summarized plea counsel's testimony as follows:
[Plea counsel] testified that he met with Deputy Solicitor Dale Scott, Assistant Solicitor Taylor Daniel, and law enforcement to discuss plea deals. He testified that the State could not offer him a plea deal and the plea ultimately proceeded without an offer. [Plea counsel] testified that [Petitioner] testified against his codefendant but there were never any verbal or written promises made to [Petitioner] by the State. [Plea counsel] testified that [t]he [Petitioner] wanted to talk to the solicitors
and he believed this helped [Petitioner], because if [Petitioner] had proceeded to a jury trial on homicide by child abuse, he probably would have been sentenced to more time similar to his codefendant. He testified that he asked the solicitor to consider a lesser offense, such as misprision of a felony, but the State declined.Id.
In the Order of Dismissal, the PCR Judge held that Petitioner failed to meet his burden in showing plea counsel was deficient for failing to have Petitioner's plea agreement memorialized in writing and enforced at the plea. The PCR Judge found:
This Court finds [plea counsel] testified there were never any verbal or written promises or plea deals made [by] the State, despite [plea counsel]'s meetings with law enforcement and the Solicitor's Office to negotiate a plea deal. This Court finds the guilty plea record reveals the plea was a "straight up" plea to aiding and abetting homicide by child abuse and [Petitioner] acknowledged that no one had made any promises to get him to plead guilty other than reducing the charge of homicide by child abuse to aiding and abetting homicide by child abuse. [] Furthermore, this Court would note that [Petitioner]'s testimony at his codefendant's hearing also indicated that he was not promised anything from the State to testify against his codefendant:
Solicitor: You're testifying today as a witness one of the State's witnesses, correct?
Applicant: Yes, sir.
Solicitor: Have you been offered anything in exchange for your testimony today, such as a plea bargain?
Applicant: No, sir. None whatsoever.
Solicitor: No offers of leniency have been extended to you?
Applicant: No, sir.
ECF No. 22-1 at 265-66.
[]. Based on these facts, including [Petitioner]'s own testimony from the plea hearing and his codefendant's trial, this Court finds that [Petitioner] has failed to show that a plea offer or promise from the solicitor did in fact exist and that he detrimentally relied on an offer or promise. As such, [Petitioner] has failed to meet his burden of proving that [plea counsel]'s conduct was deficient in this regard.
Furthermore, this Court finds that [Petitioner] has failed to prove that he was prejudiced by [plea counsel]'s actions. He has failed to show that a plea offer or promise from the State existed and has failed to show that he would have accepted this plea offer or that the outcome of his plea would have been different but for [plea counsel]'s actions. Accordingly, this allegation must be dismissed.
As noted above, the PCR Judge found that Petitioner failed to prove that there was a plea offer or promise from the State, inherently finding plea counsel's testimony credible with regard to the nature of the "straight up" plea. Furthermore, the PCR Judge found Petitioner's testimony at the PCR hearing contradicted the testimony at the plea hearing and at his codefendant's trial, inherently finding Petitioner's testimony not credible. Such a factual finding on credibility is presumed to be correct, and Petitioner has the "burden of rebutting the presumption . . . by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Petitioner has not presented any evidence of a plea deal or an unwritten agreement, nor has he provided evidence tending to show he would have not pled guilty, other than his own testimony at the PCR hearing, which is insufficient. See Blackledge, 431 U.S. at 73-74 (a defendant's statements at the guilty plea hearing are presumed to be true); Via, 643 F.2d at 171 (unsupported allegations in a collateral proceeding are insufficient to overcome representations made during the guilty plea hearing).
Accordingly, the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding that plea counsel was not deficient. See 28 U.S.C. § 2254(d); McWee, 283 F.3d at 186 (affording deference to a state court's credibility determination on testimony establishing underlying facts). Similarly, the undersigned finds that the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding that Petitioner failed to show prejudice. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580; Hill, 474 U.S. at 59 (noting Petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial"). Therefore, the undersigned recommends that Respondent's Motion be granted as to Ground Two.
V. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 23) be GRANTED and that the Petition be DISMISSED with prejudice.
/s/_________
Molly H. Cherry
United States Magistrate Judge December 8, 2020
Charleston, South Carolina
The parties are directed to the next page for their rights to file objections to this Report
and Recommendation.
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
Post Office Box 835
Charleston, South Carolina 29402
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. Arn, 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).