Opinion
5:21-1543-RMG-KDW
07-22-2022
Bernard Dewberry, Petitioner, v. Warden Charles Burton, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Bernard Dewberry (“Petitioner”) is an inmate at the McCormick Correctional Institution of the South Carolina Department of Corrections. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Cross Motions for Summary Judgment. On September 10, 2021, Respondent filed a Return and Motion for Summary Judgment. ECF Nos. 26. 27. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 28. Following the grant of an extension, ECF Nos. 31, 32, Petitioner filed a Cross Motion for Summary Judgment. ECF No. 43. Respondent filed a Response in Opposition to Petitioner's Motion on June 6, 2022. ECF No. 48.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted, and Petitioner's motion for summary judgment be denied.
I. Factual and Procedural Background
Petitioner was indicted by the Spartanburg County Grand Jury in the August 2015 term of court for murder and possession of a firearm during the commission of a violent crime. App. 368-69.
Citations to “App.” refer to the Appendix for Petitioner's trial and guilty plea transcript and Post-Conviction Relief (“PCR”) proceedings and the page numbers on the top of the page. That appendix is available at ECF Nos. 26-1 and 26-2 in this habeas matter.
On August 22-24, 2016, Petitioner appeared before the Honorable Roger L. Couch for a jury trial. App. 1 et. seq. Petitioner was represented by Assistant Public Defenders Andrea Price and James Cheek, and Assistant Solicitors Abel Gray and Allison Mabbs appeared on behalf of the State. Id. Following two days of trial, Petitioner indicated he wished to enter a negotiated guilty plea to voluntary manslaughter. App. 263-81. According to the facts presented by the solicitor, on May 19, 2015, officers responded to a call about a shooting. App. 281. When the officers arrived, they found the victim, Jerry Fernandez, lying on the street with a single bullet wound to the back. Id. While on the 911 call, the dispatcher asked the caller to ask the victim who shot him, and the victim identified Petitioner. Id. The victim was transported to the hospital where surgery was attempted, and the victim subsequently passed away. Id. During the course of the investigation, officers collected witness statements from persons who had been in the neighborhood earlier that day. Id. The investigators were able to conclude there had been two verbal altercations at the victim's home, which was located around the corner from where the victim was shot. Id. In the first altercation, Petitioner arrived at the victim's home and Petitioner and the victim began arguing over a woman. App. 282. The Petitioner left and returned with another person, Brio Means, and Petitioner and the victim began to argue again and the argument got heated. Id. Petitioner took his shirt off, and the victim went into his house and came out with a couple of knives. Id. Petitioner and Means left. Id. Ten to twenty minutes later, witnesses heard a gunshot and a scream for help and found the victim in the street. Id. Petitioner eventually went to the Cowpens Police Department where he met with officers and gave multiple statements where he admitted to shooting the victim. App. 282-83. After the solicitor recited the facts of the case, Petitioner indicated the facts recited by the solicitor were substantially correct and that he still wished to plead guilty. App. 283-85. Petitioner entered a negotiated guilty plea to voluntary manslaughter and Judge Couch sentenced him to 25-years imprisonment. App. 284-85, 298.
Petitioner filed a notice of appeal that was dismissed by the South Carolina Court of Appeals (“Court of Appeals”) on November 14, 2016, for failure to provide a sufficient explanation to merit the appeal. ECF No. 26-3 at 1. Petitioner filed an application for post-conviction relief (“PCR”) on January 18, 2017, in which he alleged he was being held unlawfully due to ineffective assistance of counsel. App. 301-307. The State filed a return and partial motion to dismiss on July 25, 2017. App. 309-17. A PCR evidentiary hearing was held before the Honorable G. Thomas Cooper, Circuit Court Judge, on November 15, 2017. App. 319-53. Petitioner was present and represented by Attorney Rodney W. Richey, and Attorney Valerie Giovanoli appeared on behalf of the State. See Id. Petitioner and his trial counsel Andrea Leah Price testified at the hearing. Id. On January 24, 2018, Judge Cooper filed an order dismissing Petitioner's PCR application with prejudice, making the following findings of facts and conclusions of law:
This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has had the opportunity to observe the witnesses presented at the hearing, and has weighed their testimony and credibility accordingly. Below are the findings of fact and conclusions of law as required pursuant to S.C. Code Ann. §17-27-80 (2017). Applicant has failed to prove by a preponderance of the evidence that Counsel was deficient or that he was prejudiced by any deficiency. A Post-Conviction Relief application is not a venue for questioning each and every decision of trial counsel in hindsight. Rather, the Applicant must demonstrate by a preponderance of the evidence that trial counsel was deficient and that the deficiency prejudiced the
outcome of his trial. Applicant has failed to do so.
I. Ineffective Assistance of Counsel
Applicant alleges he received ineffective assistance of counsel. In a PCR action, “[t]he burden of proof is on the Applicant to prove his allegations by a preponderance of the evidence. Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002) (citing Rule 71.1(e) SCRCP). Where ineffective assistance of counsel is alleged as a ground for relief, the Applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2051, 2064 (1984); Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985).
The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler, Id. The Applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). First, the Applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its “reasonableness under professional norms.” Cherry, 300 S.C. at 117 (citing Strickland). Second, counsel's deficient performance must have prejudiced the Applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18. With respect to guilty plea counsel, Applicant must show that there is a reasonable probability that, but for counsel's alleged errors he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
Mental Health Allegations
Applicant alleged Counsel was ineffective for failing to address Applicant's mental health at the time of the offense and for failing to request a mental evaluation prior to his trial/plea. Applicant vaguely referenced “mental health issues” he has dealt with since he was 15 years old, but failed to show what those issues were or how they affected him in either his commission of the crime or his ability to go forward with pre-trial hearings and his guilty plea. Additionally, this Court finds Counsel's testimony on the issue credible. She testified Applicant was very helpful and hands-on with his defense. She never had problems communicating and found Applicant to be very smart. She never felt any reason to seek an evaluation or grounds to pursue mental health as a defense. As such, Applicant has failed to meet his burden to prove Counsel was deficient or that he was prejudiced by any alleged deficiency with regard to his mental health allegations. Therefore, these allegations are denied and dismissed.
Toxicology Allegations
Applicant alleged Counsel was ineffective for failing to subpoena the victim's toxicology records and inform the court that both Applicant and the victim were under the influence of methamphetamine at the time of the killing. Counsel articulated reasons for not requesting a toxicology report and not presenting evidence of intoxication. First, she did not think Applicant's story of being high was one that would benefit him if presented to a jury. She did not think it would benefit him in sentencing either because Judge Couch has strong feelings against drugs. The intoxication was also not a defense to murder. Although Counsel conceded that generally intoxication can address the state of mind element of a self-defense claim, Counsel strongly believed Applicant's case was not a good case to pursue a defense of self-defense - because the medical reports showed the victim was shot in the back. This Court finds Counsel's decisions not to use intoxication as a defense or in mitigation to be a reasonable one based on professional judgment. Not only has Applicant failed to prove by a preponderance of the evidence that Counsel was deficient in this regard, he cannot show how he was prejudiced by the alleged deficiency. Therefore, these allegations are denied and dismissed.
Stand Your Ground/Self Defense
Applicant alleged Counsel did not properly defend him based on the stand your ground law and self-defense. However, the record is clear that Counsel made a commendable attempt to secure immunity for Applicant under the Protections of Persons and Property Act. In fact, a full hearing was held on the stand your ground defense. Immunity was denied through no fault of Counsel, but rather because the facts presented at the hearing did not warrant immunity. Additionally, Applicant has not presented any evidence to substantiate his claim Counsel did not properly handle the stand your ground defense and hearing.
With regard to self-defense, this Court agrees with Counsel's assessment of the case. The facts did not support a claim of self-defense. Although Applicant testified the victim came at him with a knife when he shot him, no knife was recovered at the crime scene and the victim was shot in the back. Therefore, Applicant has failed to persuade this Court that Counsel's decision not to pursue a claim of self-defense was not a reasonable one in light of the evidence against Applicant. Applicant has failed to prove either deficiency or prejudice in this regard. Therefore, these allegations are denied and dismissed.
Failure to interview witnesses
Applicant failed to present any evidence in support of this allegation. To show ineffective assistance in this regard, Applicant must present evidence to show what counsel could have discovered had he more fully investigated. Jackson v. State, 329 S.C. 345, 354, 495 S.E.2d 768, 772 (1998) (“Respondent failed to present any
evidence of what counsel could have discovered or what other defenses respondent would have requested counsel pursue had counsel more fully prepared for the trial.”). 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)). Applicant did not present any witnesses that could help defend his murder charge that Counsel did not interview or investigate. In fact, this Court finds Counsel's testimony on the issue more credible. Counsel agreed Applicant provided her a list of witnesses. She interviewed each one and subpoenaed each one to testify at trial. Counsel testified the people he requested were present the day of trial to testify. Applicant has failed to show what other witnesses could have helped him that Counsel did not investigate. Therefore, having failed to meet his burden of proof, this allegation is denied and dismissed.
Failure to file motion for reconsideration
Applicant alleges Counsel failed to file a motion for reconsideration after he requested she do so. This Court finds Counsel's testimony more credible on this issue. Counsel testified she did not recall Applicant ever requesting her to file a motion for reconsideration. Had he requested that, she would have filed it. Furthermore, Applicant cannot prove he was prejudiced by any alleged failure to file a motion to reconsider because he has offered no basis for such a motion. Therefore, this allegation is denied and dismissed.
II. Involuntary Guilty Plea
Applicant also asserts his plea was involuntary because Counsel failed to explain what a plea of guilty meant. The record must establish the defendant had a full understanding of the consequences of his plea and the charges against him. Dalton, 376 S.C. 138, 654 S.E.2d at 874 (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). A defendant's knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and “may be accomplished by colloquy between the court and defendant, between the court and defendant's counsel, or both.” Roddy v. State, 339 S.C. 29, 34, 528 S.E.2d 418,421 (2000) (citing State v. Ray, 310 S.C. 431, 437, 427 S.E.2d 171, 174 (1993)). Further, “[a] guilty plea is a solemn judicial admission of the truth of the charges” against the applicant; thus, a criminal inmate's right to contest the validity of such a plea is usually, but not invariably, foreclosed. Dalton, 376 S.C. at 137-38, 654 S.E.2d at 874 (citing Blackledge v. Allison, 431 U.S. 63 (1977)). Therefore, admissions “made during a guilty plea should be considered conclusive unless [an applicant] presents valid reasons why he should be allowed to depart from the truth of his statements.” Id. (citing Crawford v. United States, 519 F.2d 347 (4th Cir. 1975); Edmonds v. Lewis, 546 F.2d 566 (4th Cir. 1976)). “In considering an allegation on PCR that a guilty plea was based on inaccurate advice of counsel, the transcript of the guilty plea hearing will be considered to determine whether any possible error
by counsel was cured by the information conveyed at the plea hearing.” Id. at 138-39, 654 S.E.2d at 874 (citing Wolfe v. State, 326 S.C. 158, 165, 485 S.E.2d 367, 370 (1997)).
In PCR cases, an applicant asserting a constitutional violation must frame the issue as one of ineffective assistance of counsel. Al-Shabazz v. State, 338 S.C. 354, 363-64, 527 S.E.2d 742, 747 (2000) (citations omitted). An applicant who pleads guilty on the advice of counsel may collaterally attack the plea only by showing (1) counsel was ineffective and (2) there is a reasonable probability that but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial. Roscoe v. State, 345 S.C. 16, 20, 546 S.E.2d 417, 419 (2001). An applicant alleging his guilty plea was induced by ineffective assistance of counsel must prove counsel's advice was not “within the competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985). Further, “(t]hat a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing.” McMann v. Richardson, 397 U.S. 759, 770 (1970). Rather, “whether a plea of guilty is unintelligent ... depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.” Id. at 771.
The record fully supports the knowing and voluntary nature of Applicant's plea. Applicant has failed to give a sufficient reason to be allowed to depart from the truth of his statements made during his guilty plea. Counsel testified she and co-counsel, James Cheek, discussed pleading guilty with Applicant at length. The Court also fully apprised Applicant of his rights and the implications of pleading guilty on the record.
To the extent Applicant is attacking his guilty plea based on ineffective assistance of counsel, this Court finds Counsel was in no way ineffective, as more fully addressed above. This Court further finds Counsel's advice to plead guilty was sound in light of the evidence the State had against him and the benefit he received by way of pleading to the lesser included offense of voluntary manslaughter and receiving five years less than the mandatory minimum for his original murder charge. Applicant has failed to meet his burden of proving his guilty plea was involuntary.
CONCLUSION
Based on all the foregoing, this Court finds and concludes Applicant has not established any violations that would require this Court to grant his application. This Court finds Applicant has failed to prove any deficiencies on the part of Counsel and further, Applicant has failed to prove prejudice from any alleged deficiencies in Counsel's representation of him. Therefore, as Applicant has failed to meet his burden of proof in this post-conviction relief action, his application is
denied and dismissed with prejudice.App. 355-66.
Petitioner appealed the PCR court's order and Chief Appellate Defender Robert M. Dudek of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. ECF No. 26-4. Attorney Dudek filed a Johnson petition for writ of certiorari in the South Carolina Supreme Court on November 26, 2018, raising the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors of 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.
Was defense counsel ineffective for failing to present mitigating evidence to the sentencing judge that both petitioner and the decedent were under the influence of methamphetamines at the time of the fatal altercation, since drug use or intoxication is evidence in mitigation, and defense counsel improperly reasoned that because the sentencing judge did not approve of drugs that counsel should not present this well accepted mitigating evidence?Id. at 3. Petitioner's counsel asserted the petition was without legal merit and requested permission to withdraw from further representation. Id. at 12.
On January 9, 2019, Petitioner filed a pro se brief in which he raised the following issues:
• Counsel failure to have a mental evaluation on Petitioner due to fact of his history of being on medication since he was 15 yr old
• Petitioner allege counsel should have presented the toxicology of Victim.
• Counsel failed in presenting that evidence. At Post Convection hearing counsel testified that it was a bad idea to present that issue to Judge Couch. Because his personal baise against the use of drug.
• Counsel failure to object to the charge of a lesser included offense, Where there's no indictment to voluntary manslaughter. Tr. Pg 265 Li 3-9.
• Also trial judge erred in accepting Petitioner guilty plea. Counsel failure to inform Petitioner explain a full understanding of the 15 yr plea deal.
ECF No. 26-6 at 3-4 (errors in original).
The South Carolina Supreme Court transferred Petitioner's appeal to the Court of Appeals on January 9, 2019. ECF No. 26-7. On July 20, 2020, the Court of Appeals denied the Petition for Writ of Certiorari. ECF No. 26-8. The Remittitur was issued on August 13, 2020. ECF No. 26-9. This Petition followed on May 24, 2021. ECF No. 1.
II. Discussion
A. Federal Habeas Issues
Petitioner states the following ground in his petition:
Ground One:Whether Petitioner was denied counsel on direct appeal.
Supporting Facts: On August 24, 2016, the petitioner had pled guilty to a negotiated plea of voluntary manslaughter. The petitioner timely filed an appeal to the South Carolina Court of Appeals. On November 14, 2016, the petitioner appeal was denied on the grounds “for failure to provide sufficient explanation. Because of appellate counsel, Petitioner was denied a direct appeal.
Ground Two:Whether the Petitioner trial counsel was ineffective for failure to order a mental evaluation from the trial judge when the petitioner has a history of mental illness
Supporting Facts: Before trial and/or the plea deal, the petitioner trial counsel was aware that the petitioner had a history of mental illness. Despite this knowledge, plea counsel did not file a motion for a mental evaluation to the plea judge.
There's a reasonable probability that if the plea judge would had heard that motion the court would had order the petitioner a mental evaluation as required by South Carolina laws.
Ground Three:Whether the petitioner trial counsel was ineffective for failure to properly defend the petitioner on his stand your ground defense
Supporting Facts: Before the plea hearing, the petitioner trial counsel had
failed to properly defend the petitioner at his stand your ground hearing. The petitioner trial counsel had failed to put up relevant evidence at the hearing so the trial/plea judge could determine by the preponderance of the evidence the petitioner is entitled to immunity from prosecution of murder.
Ground Four:Whether the petitioner trial counsel was ineffective for failure to advise the petitioner properly on the laws of self defense.
Supporting Facts: The petitioner plea/trial counsel misadvised the petitioner of the essential elements of self defense in order to get the petitioner to plea out to voluntary manslaughter.
The petitioner plea counsel had advised the petitioner that it will be in his best interest to plea out to voluntary manslaughter because the victim appeared to be shot in the back. But the evidence such as the toxicology reports, and the witnesses testimony shows that the petitioner had shot the victim in self defense because the victim had pull out a knife on petitioner.
There's a reasonable probability that if the petitioner plea/trial counsel would have properly advised the petitioner of the law of self defense the petitioner would had went to trial on the defense of self defense.
Ground Five: Whether the Petitioner plea counsel was ineffective for failure to inform the petitioner properly of the solicitor plea deal of 15 years plus 5 years probation.
Supporting Facts: The petitioner trial/plea counsel had come to the petitioner with a plea offer from the solicitor of 15 years plus 5 years probation for voluntary manslaughter. The petitioner trial/plea counsel did not originally wanted the petitioner to take the plea deal but to go to trial. Because of the argument between the petitioner and counsel over the plea in which counsel called the petitioner a terrorist because he's muslim, counsel had not explain the consequences of the plea and the maximum sentence of voluntary manslaughter to the petitionerECF No. 1 at 10-14. (errors in original).
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. 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(e).
C. Habeas Corpus Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that “[a] 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The statute further provides that “[t]he time during which a properly filed application for State post-conviction or collateral relief with respect to the pertinent judgment or claim that is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2).
Respondent argues Petitioner's habeas petition should be dismissed because Petitioner's claims are barred by the statute of limitations. ECF No. 26 at 9-10. Petitioner contends his petition is timely filed. ECF No. 43 at 2-3. The AEDPA's one-year period of limitation begins to run at the “conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Because Petitioner did not seek review by the United States Supreme Court, the AEDPA's one-year statute of limitations began running “at the expiration of the time” for seeking direct review in state court. 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment of conviction therefore became final “when his time for seeking review with the State's highest court expired.” Gonzalez v. Thaler, 565 U.S. 134, 149-52 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)).
Review of the record indicates Petitioner's federal habeas petition was timely filed. As previously summarized, Petitioner's appeal of his conviction was dismissed by the Court of Appeals on November 14, 2016. Petitioner was then required to petition the Court of Appeals for rehearing to pursue review with the South Carolina Supreme Court. See Rule 242(c), SCACR (providing that a decision of the Court of Appeals “is not final for the purpose of review by the Supreme Court until the petition for rehearing or reinstatement has been acted on by the Court of Appeals.”). Because Petitioner did not file a petition for rehearing, his conviction became final on November 29, 2016, after the time period for filing a petition for rehearing had expired. See Rule 221(b), SCACR (stating that petitions for rehearing must be actually received by the appellate court no later than fifteen (15) days after the filing of the opinion, order, judgment, or decree of the court). Petitioner's filing of his PCR application on January 18, 2017, tolled the one-year limitations period, see 28 U.S.C. § 2244(d)(2), at which time 50 days had elapsed, leaving 315 days within which Petitioner could timely file a federal habeas petition. The statute of limitations remained tolled until, at the very latest, August 17, 2020, upon the filing of the remittitur in Spartanburg County after the Court of Appeals order denying the petition for writ of certiorari.
South Carolina district courts have offered varied opinions on whether (1) the decision date, (2) the remittitur date, or (3) the date of receipt of the remittitur controls for purposes of calculating the statute of limitations. See, e.g., Smith v. Warden, Lieber Corr. Inst., No. 4:13-3090-BHH, 2014 WL 5503529, at *6 (D.S.C. Oct. 30, 2014); Johnson v. Warden, Lee Corr. Inst., No. 2:14-cv-0768 DCN, 2015 WL 1021115, at *9 (D.S.C. Mar. 9, 2015); Beatty v. Rawski, No. 1:13-3045-MGL-SVH, 2015 WL 1518083, at *2-6 (D.S.C. Mar. 31, 2015).
ECF No. 26-9. Petitioner filed his petition on May 24, 2021, 35 days before the expiration of the statute of limitations on June 28, 2021. Accordingly, Petitioner's petition is timely filed and Petitioner's Motion for Summary Judgment should be denied on this ground.
D. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (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 evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[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.” Id. at 410. 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).
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented 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.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-405 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[,]” it “must be objectively unreasonable,” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to state-court factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential,” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
Where allegations of involuntary guilty pleas are concerned, the United States Supreme Court has held that a guilty plea is constitutionally valid if it “‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'ˮ Hill v. Lockhart, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. at 31). “Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.ˮ Id. . at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). A plea is knowingly and intelligently made if a defendant is “‘fully aware of the direct consequences' of his guilty plea and not induced by threats, misrepresentation, including unfulfilled or unfulfillable promises, or by “‘promises that are by their nature improper as having no relationship to the prosecutor's business'” Brady v. United States, 397 U.S. 742, 755 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957)). Because a guilty plea is a solemn, judicial admission of the truth of the charges against an individual, a criminal inmate's right to contest the validity of such a plea is usually, but not invariably, foreclosed. Blackledge v. Allison, 431 U.S. 63, 74-75 (1977). Therefore, statements made during a guilty plea should be considered conclusive unless a criminal inmate presents reasons why he should be allowed to depart from the truth of his statements. Crawford v. United States, 519 F.2d 347 (4th Cir. 1975), overruled on other grounds by United States v. Whitley, 759 F.2d 327, 350 (4th Cir. 1985); Edmonds v. Lewis, 546 F.2d 566, 568 (4th Cir. 1976). Insofar as the review of claims of ineffective assistance of counsel raised by persons who pleaded guilty is concerned, the United States Supreme Court has stated,
Hindsight and second guesses are also inappropriate, and often more so, where a plea has been entered without a full trial . . . . The added uncertainty that results when there is no extended, formal record and no actual history to show how the charges have played out at trial works against the party alleging inadequate assistance. Counsel, too, faced that uncertainty. There is a most substantial burden on the claimant to show ineffective assistance. . . .Premo v. Moore, 562 U.S. 115, 132 (2011).
2. Procedural Bar
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. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise 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 and provides as follows:
(b) (1) 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 unless it appears that
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust 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). Thus, a federal 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 (S.C. 1976). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR 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.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). 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 a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR 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).
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule[,]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). 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. Murray v. Carrier, 477 U.S. 478, 496 (1986).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state 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 that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. 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. Id. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924 (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.
E. Analysis
1. Procedurally-Barred Grounds
Respondent argues Petitioner's Ground One claim is procedurally barred because Petitioner failed to raise this claim to the PCR court. ECF No. 26 at 10-12. In Ground One Petitioner claims he was denied counsel on direct appeal. ECF No. 1 at 10. The undersigned finds Petitioner's Ground One claim was not ruled on by the PCR court and therefore is not preserved for review. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (holding issue not properly raised to state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas); Pruitt v. State, 423 S.E.2d 127 (S.C. 1992) (holding issue must be raised to and ruled on by the PCR judge in order to be preserved for review). Consequently, federal habeas review of the Petitioner's Ground One claim is barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
2. Cause and Prejudice
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can 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. Petitioner has failed to show sufficient cause and prejudice to excuse the default of his Ground One claim.
The existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 488 (1986). Petitioner cites to the holding in Martinez v. Ryan, 566 U.S. 1 (2012), and argues the procedural bar applied to his Ground Once claim should be lifted due to the neglect of his appellate counsel. ECF No. 43 at 2-4. In Martinez, the Court recognized a narrow exception to the rule established in Coleman v. Thompson, 501 U.S. 722 (1991) and held 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.” Martinez, 566 U.S. at 9. The undersigned finds Martinez does not excuse the default of Petitioner's Ground One claim as Martinez does not excuse the ineffective assistance of appellate counsel. See Davila v. Davis, 137 S.Ct. 2058, 2063 (2017).
In Coleman, the Court held an attorney's errors in a postconviction proceeding do not qualify as cause for a default. Coleman, 501 U.S. at 754-755.
In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). To pass through the actual-innocence gateway, a petitioner's case must be “truly extraordinary.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The court's review of the record does not support a showing of actual innocence. Therefore, the procedural bar applies to Petitioner's Ground One claim.
3. Merits Review
In his habeas Petition Grounds Two through Five, Petitioner alleges his trial/plea counsel was ineffective for: (a) failing to order a mental evaluation from the trial judge when counsel was aware Petitioner had a history of mental illness, (b) failing to properly defend Petitioner on his stand your ground defense, (c) failing to properly advise Petitioner on the laws of self-defense, and (d) failing to properly inform Petitioner of the solicitor's plea deal of 15 years plus 5 years' probation. ECF No. 1 at 11-14. In rejecting Petitioner's ineffective assistance of counsel claims, the PCR court found Petitioner failed to prove by the preponderance of the evidence that counsel was deficient or that he was prejudiced from any alleged deficiencies. App. 360.
At the PCR evidentiary hearing, Petitioner testified his counsel did not really talk to him about the initial plea offer. App. 325. Petitioner stated that at one point he had a 15-year plea offer, but the offer was not explained to him properly. App. 325-26. Petitioner testified he would have accepted the 15-year plea if he had fully understood it. App. 326. Petitioner stated his counsel did not advise him to accept the plea. Id. Petitioner testified his counsel failed to subpoena medical records that showed victim was admitted to the hospital with an open chest wound although his gunshot wound was not to the victim's chest. App. 327-28. Petitioner testified he believed the victim fell on his own knife after Petitioner shot him, and the knife wound was the cause of his death. App. 328. Petitioner stated he and his counsel discussed a stand your ground defense, and his counsel told him there was no self-defense law in South Carolina. App. 329. When asked if he and his counsel discussed the elements of self-defense, Petitioner stated he did all the legal work concerning the witnesses he wanted subpoenaed and gave it to counsel. Id. Petitioner testified he also wanted a toxicology report subpoenaed to establish Petitioner and the victim were both under the influence of methamphetamines. App. 329. When asked if this was why he pled guilty, Petitioner stated he pled guilty because he did not have anyone representing him. Id. Petitioner stated he has had mental health issues since he was 15, but those issues are not affecting his current testimony. App. 330. Petitioner testified his counsel failed to offer his and the victim's drug use as mitigation. Id. Petitioner also stated he asked counsel to file a motion to reconsider after he entered his plea and she did not. Id. Petitioner stated if counsel would have done the things he asked her to do, he would not have entered a plea, and would have gone to trial. Id. Petitioner testified that although he wanted to go to trial, he would have accepted the 15-year plea deal to save the family the pain of a trial. App. 331. Petitioner stated he and his counsel discussed the plea offer and during the discussion she called Petitioner a terrorist which is why Petitioner refused the plea offer. App. 332. Petitioner testified his counsel did not discuss the victim's open chest wound during trial. App. 333. Petitioner stated he wanted the toxicology report because he believed the use of drugs played a major role in the altercation, but counsel advised him being high was not a defense to murder. App. 334. Petitioner was asked if his mental health issues affected his testimony during his pretrial motions, and Petitioner stated some of the things they talked about he did not comprehend. App. 335-36. Petitioner admitted his testimony during the pretrial motions was coherent and he did not have problems understanding the questions or communicating his answers. App. 336.
Petitioner's trial/plea counsel testified she believed Petitioner understood his initial plea offer. App. 338. Counsel stated she met with the solicitor about the plea offer and the solicitor “made me an offer while [she] was in his office of 15 years to a voluntary manslaughter plea and followed by five years probation.” App. 339. Counsel testified she discussed with Petitioner the terms of the plea and the time he would have to serve. Id. Counsel stated she has never called a client a terrorist. Id. Counsel testified that she discussed self-defense with Petitioner, but she did not tell him there was no self-defense in this case, although she explained self-defense would be difficult due to the victim being shot in the back. App. 340-41. Counsel also stated she did not see any evidence that the victim had a knife and there was not a knife recovered from the crime scene. App. 341. Counsel testified she explained these problems with Petitioner. App. 345-46. Counsel testified she reviewed all the discovery and she went over the reports with the open wound on the victim's chest with Petitioner. App. 342. Counsel stated she advised Petitioner to plead guilty because she thought it was in his best interest, and it was his decision not to accept the plea offer and go to trial. App. 342-43. Counsel testified she could not recall if Petitioner asked her to subpoena the toxicology reports. App. 343-44. Counsel stated Petitioner never expressed an interest in accepting a plea so they prepared for trial. App. 344-45. Counsel testified that a mutual combat defense was not an option, but she did move under the protection of persons and property act for immunity. App. 346. Counsel stated she discussed this motion with Petitioner, and he testified at the hearing and she believed he did quite well at the hearing. Id. Counsel testified she also moved to suppress Petitioner's statement and there was a pre-trial hearing on that motion. Id. Counsel stated she took Petitioner's discovery to the jail and she reviewed it with him, and she provided him with a physical copy. App. 346-47. Counsel said she did not believe the trial was going well for Petitioner so she approached the solicitor and they re-extended the voluntary manslaughter offer, however, the offer was 15 to 30 years, not the original 15. App. 347-48. Counsel testified she advised Petitioner to accept the plea and it was Petitioner's decision to accept the plea offer. App. 348. Counsel testified she did not make any promises to Petitioner, nor did she pressure him into accepting the plea. Id. Counsel testified that the toxicology report would not have been helpful due to Petitioner's self-defense claim. Id. Counsel stated Petitioner being on drugs would not have helped during trial or during sentencing, especially with the judge who had strong opinions about methamphetamines. App. 349. Counsel testified she discussed this with Petitioner. Id. Counsel said she had been practicing law for almost 10 years when she tried Petitioner's case. Id. Counsel testified she never thought she needed to order a mental evaluation as she did not believe Petitioner had any difficulties helping her with his case. App. 350. Counsel stated she wrote down the names of the witnesses Petitioner gave her and she subpoenaed them and they appeared for trial. Id. Counsel testified she did not recall Petitioner asking her to file a motion to reconsider and she would have filed one if he did. App. 350-51. Counsel stated the solicitor explained that the autopsy report noted that the stab wound that was observed on the victim's body was part of his treatment in the emergency room. App. 352-53.
a. Analysis
1. Ground Two
In Ground Two, Petitioner alleges his trial counsel was ineffective for failing to order a mental evaluation from the trial judge when counsel was aware Petitioner had a history of mental illness. ECF No. 1 at 11. Petitioner argues there was a reasonable probability that the judge would have ordered a mental evaluation for Petitioner if he would have heard that motion. Id.
The PCR court denied this Ground Two claim explaining that Petitioner failed to identify his mental health issues or show how they affected him during the commission of the crime or his ability to participate in pre-trial hearings or his guilty plea. App. 361. The court found more believable counsel's testimony that she did not have any reason to seek an evaluation or pursue a mental health defense as Petitioner was helpful and hands on with his defense and he did not have any problems communicating with her. Id. The court found Petitioner failed to establish deficiency or prejudice. Id.
In support of his summary judgment motion, Respondent contends Petitioner's trial counsel cannot be considered ineffective for not pursuing a mental health evaluation because the evidence before the court established Petitioner was competent to stand trial. ECF No. 26 at 13.
In support of his cross motion for summary judgment on this Ground, Petitioner cites to the PCR court's order dismissing this claim and Fourth Circuit caselaw on the legal standard for procedural competency. ECF No. 43 at 33-34.
The undersigned has reviewed the record before the court and finds Petitioner has not presented sufficient evidence to establish the state courts' rejection of his mental evaluation claim was contrary to, or involved an unreasonable application of, clearly established federal law. The undersigned also finds the PCR court's finding that Petitioner was not prejudiced by his counsel's performance was reasonable in light of record before it. The PCR court's factual findings were based, in part, on the assessment that Petitioner's counsel's testimony on this issue was credible. The PCR court's credibility determination is entitled to deference in this action. Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”). Petitioner must offer “clear and convincing evidence to the contrary” to overcome this presumption of correctness Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003). Petitioner has not shown that the PCR court's credibility determination on this claim should be discounted. The undersigned recommends Ground Two be denied.
2. Ground Three
In Ground Three, Petitioner claims his trial counsel was ineffective for failing to properly defend Petitioner on his stand-your-ground defense. ECF No. 1 at 12. Petitioner argues his trial counsel failed to put up relevant evidence at the hearing so the judge could determine by the preponderance of the evidence that Petitioner was entitled to immunity from prosecution of murder. Id.
In denying this claim, the PCR court found counsel made a “commendable” effort during the hearing on immunity for Petitioner, however the facts of the case did not warrant immunity. App. 362. The court also found Petitioner did not present any evidence to substantiate his claim that counsel did not properly handle his stand-your-ground defense and hearing. Id.
Respondent moves for summary judgment on this Ground arguing Petitioner's claim relates to a law that is exclusively under the jurisdiction of South Carolina and therefore Petitioner is not entitled to habeas relief. ECF No. 26 at 14-15.
In his Cross Motion for Summary Judgment, Petitioner reviews the testimony offered at the PCR hearing on this ground and cites to case law on self-defense; however, Petitioner does not offer any argument that addresses the merits of the PCR court's findings. ECF No. 43 at 27-28.
Petitioner has not shown the state court's analysis of this Ground Three issue misapplied clearly established federal law. See Williams, 529 U.S. at 410. The undersigned also finds the PCR court's finding that trial counsel made a credible attempt to secure immunity for Petitioner was reasonable based on the evidence presented at the hearing. Petitioner has also failed to offer any evidence or argument to contradict the PCR court's findings in his cross motion for summary judgment. The undersigned finds Petitioner is not entitled to federal habeas relief on this ground. See Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (holding that 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 an unreasonable determination of the facts based on the evidence presented in the state court proceeding). The undersigned recommends this ground be dismissed.
3. Ground Four
In Ground Four, Petitioner alleges his counsel was ineffective in failing to properly advise him on the laws of self-defense. ECF No. 1 at 13. Petitioner claims his counsel misadvised him of the essential elements of self-defense to get Petitioner to plea to voluntary manslaughter. Id. Petitioner states counsel told him it would be in his best interest to enter a plea because it appeared the victim was shot in the back, however, Petitioner argues the evidence and toxicology reports established Petitioner shot the victim in self-defense because the victim pulled a knife on Petitioner. Id. Petitioner alleges there was a reasonable probability he would have gone to trial if counsel had properly advised him on the law of self-defense. Id.
The PCR court found Petitioner's factual allegations in support of his Ground Four claim failed to establish deficiency or prejudice. App. 363. The court explained the facts of the case did not support self-defense because although Petitioner testified the victim came at him with a knife when he shot him, no knife was recovered from the crime scene and the victim was shot in the back. Id.
In moving for summary judgment, Respondent alleges the facts of the case establish Petitioner shot the victim in the back and no knife was found, therefore, Petitioner would not have been successful on his self-defense claim. ECF No. 26 at 15-16. Respondent contends it was in Petitioner's best interest to plead guilty to voluntary manslaughter because his self-defense claim was not viable and therefore a trial would have resulted in a worse outcome. Id. at 16.
Petitioner's summary judgment motion does not address the PCR court's findings on his self-defense claim on the merits. ECF No. 43 at 27-28. Instead, Petitioner references excerpts from the PCR testimony on this ground and cites to case law on self-defense. Id.
The undersigned finds Petitioner's arguments fail to satisfy the Strickland test. Petitioner has not shown the PCR court reached an unreasonable factual determination in finding counsel's decision not to pursue a self-defense claim was reasonable in light of the evidence against Petitioner. Further, Petitioner has not shown the PCR court unreasonably applied United States Supreme Court precedent in deciding his self-defense claim. Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of these issues. Williams, 529 U.S. 420. The undersigned recommends Respondent be granted summary judgment on Petitioner's Ground Four claim.
4. Ground Five
In Ground Five, Petitioner contends his plea counsel was ineffective for failing to properly inform him of the solicitor's plea deal of 15 years' incarceration plus 5 years' probation. ECF No. 1 at 14. Petitioner claims his counsel informed him of the 15-year plea deal and she did not originally want him to take the plea deal but instead go to trial. Id. Petitioner claims he and counsel got into an argument over the plea and, as a result, counsel did not explain the consequences of the plea and the maximum sentence of voluntary manslaughter. Id.
The PCR court found Petitioner's involuntary plea/ineffective assistance of counsel claims to be without merit. App. 365. The court found the record supported the knowing and voluntary nature of Petitioner's plea. Id. The court found Petitioner failed to give a valid reason for departing from the truth of the statements he made during his guilty plea. App. 366. The court found counsel discussed pleading guilty with Petitioner at length and the trial court fully apprised Petitioner of his rights and the implications of pleading guilty. Id. The court further found counsel was not deficient as her advice to Petitioner to enter a plea was sound given the evidence against Petitioner. Id. The court noted, in pleading to voluntary manslaughter, Petitioner received a sentence that was five years less than the mandatory minimum for his original murder charge. Id. The court concluded that Petitioner's counsel was not ineffective and Petitioner failed to prove his guilty plea was involuntary. Id.
In support of his summary judgment motion, Respondent contends Petitioner failed to provide any evidence of ineffective assistance of counsel. ECF No. 26 at 17. Respondent explains that during the PCR hearing and guilty plea proceedings, Petitioner's counsel stated Petitioner always understood what was going on. Id. Respondent also points out that during the guilty plea proceedings the trial judge fully explained the maximum penalty for voluntary manslaughter and the negotiated sentence. Id. Respondent also notes Petitioner informed the court he understood and he was pleading guilty of his own free will and because he was guilty. Id. at 18.
Petitioner moves for summary judgment on this Ground citing to the legal standard for determining prejudice when the court, solicitor, and plea counsel misadvise a defendant. ECF No. 43 at 34-35.
The undersigned finds Petitioner's ineffective assistance of counsel and involuntary guilty plea arguments are insufficient to satisfy the Strickland test. Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination in finding Petitioner was not prejudiced by trial counsel's purported failure to explain the consequences of the plea and the maximum sentence for voluntary manslaughter. Petitioner has also failed to show the PCR court unreasonably applied Supreme Court precedent in deciding his ineffective assistance of counsel and involuntary guilty plea claims. Accordingly, the undersigned recommends Petitioner's habeas petition be dismissed.
In his Cross-Motion for Summary Judgment, Petitioner raises claims and presents arguments that were not raised in his habeas petition. See ECF No. 43. Accordingly, these claims are not properly before the court.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's Motion for Summary Judgment, ECF No. 27, deny Petitioner's Cross Motion for Summary Judgment, ECF No. 43, and the Petition be denied.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to 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 2317
Florence, South Carolina 29503
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).