Opinion
C/A No. 0:18-2139-MGL-PJG
03-06-2019
Kadeem Johnson, Petitioner, v. Warden Stephon, Respondent.
REPORT AND RECOMMENDATION
Petitioner Kadeem Johnson, a self-represented state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. (ECF No. 15.) 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. 16.) Petitioner filed a response in opposition (ECF No. 23), and Respondent replied (ECF No. 24). Having carefully considered the parties' submissions and the record in this case, the court finds that Respondent's motion should be granted and the Petition denied.
BACKGROUND
Petitioner was indicted in March 2011 in Sumter County for armed robbery while armed with a deadly weapon and possession of a weapon during a violent crime (2011-GS-43-0469), and for attempted murder, attempted armed robbery, and possession of a weapon during the commission of a violent crime (2011-GS-43-0481). (App. at 332-40, ECF No. 14-1 at 335-43.) In July 2011, Petitioner was indicted in Sumter County for another count of armed robbery while armed with a deadly weapon (2011-GS-43-0939). (App. at 341-43, ECF No. 14-1 at 344-46.) Petitioner was represented by Charles Brooks, Esquire. (App. at 1, ECF No. 14-1 at 4.) On April 16, 2012, the Honorable R. Jeffrey Young, Circuit Court Judge, heard pretrial motions in Petitioner's case, and the parties selected a jury. (App. at 1-29, ECF No. 14-1 at 4-32.) The following day, Petitioner pled guilty as charged. (App. at 30-60, ECF No. 14-1 at 33-63.) The court sentenced Petitioner to twenty-five years' incarceration for each of the armed robbery convictions, to five years' incarceration for each of the possession convictions, and to twenty years' incarceration for attempted murder, all to be served concurrently with credit for time served. (App. at 57-59, ECF No. 14-1 at 60-62.)
On April 27, 2012, plea counsel filed a motion to reconsider Petitioner's sentence. (App. at 61, ECF No. 14-1 at 64.) The court denied the motion. (App. at 63, ECF No. 14-1 at 66.)
Petitioner timely appealed. On March 18, 2013, Robert M. Pachak, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed an Anders brief on Petitioner's behalf, raising the issue of "[w]hether appellant's guilty plea complied with the mandates set forth in Boykin v. Alabama[.]" (App. at 65-76, ECF No. 14-1 at 68-79.) Petitioner's appeal was dismissed by the South Carolina Court of Appeals in an unpublished, per curiam opinion filed on July 31, 2013. (State v. Johnson, Unpublished Opinion No. 2013-UP-331, App. at 77-78, ECF No. 14-1 at 80-81.) The remittitur was issued on August 23, 2013. (App. at 79, ECF No. 14-1 at 82.)
Anders v. California, 386 U.S. 783 (1967). 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.
On April 25, 2014, Petitioner filed a pro se application for post-conviction relief ("PCR"). (Johnson v. State, 2014-CP-43-794, App. at 80-86, ECF No. 14-1 at 83-89.) In his PCR application, Petitioner alleged the following issues:
10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) My constitutional Right to effective assistance of counsel was violated.
(b) My constitutional Right to speedy trial was violated.
(c) My constitutional Right to Equal protection was violated.
11. State concisely and in the same order the facts which support each of the grounds set out in (10):
(App. at 82, ECF No. 14-1 at 85) (errors in original). The State filed a return. (App. at 87-93, ECF No. 14-1 at 90-96.) Thereafter, on February 11, 2016, Tricia A. Blanchette, Esquire, filed an amended PCR application on Petitioner's behalf, alleging the following claims:(a) Counsel failed to (conduct adequate) investigation and prepare for trial. Therefor providing me inadequat legal advice.
(b) Between the filing of speedy trial motion and trial (the delay). It was helpful to the State.
(c) Discrimination in sentencing between me and codefendant.
1. Ineffective Assistance of trial/plea counsel for failure to prepare and investigate Applicant's case during the two years leading up to trial, which resulted in a failure to review the evidence with Applicant and properly prepare Applicant for trial culminating in an involuntary guilty plea. Specifically, but not limited to:
a. Ineffective assistance of counsel for failure to move for dismissal at the preliminary hearing or anytime thereafter since the arrest warrant was issued based upon the statements of Randy Lowery, which do not name Applicant.
b. Ineffective assistance of counsel for failure to either obtain the statements of Higgins and Gordon in time to prepare for trial and investigate the statements or make a Brady motion regarding the State's disclosure of the statements. Pre-trial Transcript pp. 21-24.
c. Ineffective assistance of counsel for failure to have knowledge of and/or review the SLED findings with Applicant and make sure such findings were properly reflected in the record.
d. Ineffective assistance of counsel for failure to address the differing language in the indictments and for failure to clarify if Applicant was being charged as a principal or under the theory of hand of one is the hand of all.
e. Ineffective assistance of counsel for failure to prepare to cross-examine and impeach the testimony of co-defendant Upchurch.
f. Ineffective assistance of counsel for failure to act on Applicant's request for a speedy trial.
2. Ineffective assistance of counsel for appearing to not know what charges the State planned to proceed with at trial and for not preparing Applicant for the charges he would face at trial, which resulted in an involuntary guilty plea. Pre-trial Transcript Pp. 25-6.
3. Ineffective assistance of counsel for failure to object to the Court's opening comments to the jury regarding a true and just verdict. Pre-trial Transcript p. 6, lns. 8-12. See State v. Daniels, 401 S.C. 251, 737 S.E.2d 473 (2012).
4. Ineffective assistance of counsel for inducing Applicant's guilty plea on advice that the court would sentence him close to the fifteen year sentence of his co-defendant and failing to put such information on the record during the plea and reconsideration phase.
5. Pursuant to United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984) and Nance v. Ozmint, 367 S.C. 547, 626 S.E.2d 878 (2006), Applicant alleges that counsel rendered ineffective assistance in violation of the Sixth Amendment's requirement that Applicant have counsel acting in the role of an advocate and in violation of the adversarial process the Sixth Amendment protects when counsel failed to subject the State's case to a meaningful adversarial testing.
6. Pursuant to Rule 15(b), SCRCP, Applicant would move to amend to conform to the evidence and testimony presented at the evidentiary hearing.(App. at 94-95, ECF No. 14-1 at 97-98.)
On March 16, 2016, the PCR court held an evidentiary hearing at which Petitioner appeared and testified. (App. at 97-238, ECF No. 14-1 at 100-241.) Petitioner was represented by PCR counsel during the hearing. (App. at 97, ECF No. 14-1 at 100.) Petitioner also called trial counsel to testify during the hearing. (App. at 170-218, ECF No. 14-1 at 173-221.) At the conclusion of the hearing, the PCR court announced that it
agree[d] with the position of and the argument made by the state as to each of the issues before the Court today, except for the following: . . . I do not think there should be a finding of overwhelming evidence of guilt; and (2) I'm going to take under advisement the issue of whether or not the advice given relating to sentencing was sufficient to warrant a new trial.(App. at 234-35, ECF No. 14-1 at 237-38.) Following post-hearing briefing, the PCR court denied and dismissed with prejudice the PCR application in an order dated October 18, 2016. (App. at 289-306, ECF No. 14-1 at 292-309.) On November 3, 2016, PCR counsel filed a motion for reconsideration pursuant to Rule 59(a) & (e), SCRCP. (App. at 307-12, ECF No. 14-1 at 310-15.) The PCR court denied that motion in an order filed on December 1, 2016. (App. at 331, ECF No. 14-1 at 334.)
Petitioner appealed. On September 5, 2017, Susan B. Hackett, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a petition for writ of certiorari on Petitioner's behalf. (Johnson v. State, App. Case No. 2017-000028, ECF No. 14-3.) The following issue was presented in the petition:
Was Petitioner's guilty plea involuntary where plea counsel provided ineffective assistance in derogation of the Sixth and Fourteenth Amendments to the Constitution
by inducing Petitioner to pled [sic] guilty by advising him that pursuant to information plea counsel obtained during a chambers conference, the judge would impose a sentence between sixteen and twenty years, but the judge imposed a twenty-five year sentence and where plea counsel failed to place this information on the record during the guilty plea or in the motion for reconsideration?(ECF No. 14-3 at 3.) The State filed a return. (ECF No. 14-1.) On April 19, 2018, the Supreme Court of South Carolina denied the petition. (ECF No. 14-5.) The remittitur was issued on May 7, 2018, and was filed in the Sumter County Court on May 9, 2018. (ECF No. 14-6.)
FEDERAL HABEAS ISSUES
The Petition for a writ of habeas corpus raises the following issues, quoted verbatim:
Ground One: Trial Counsel was ineffective for failing to investigate; failed to Do any Pretrial investigation; Trial Counsel was ineff for delay of speedy trial motion
Supporting Facts: Trial Counsel did absolutely No pre-trial investigation had trial counsel investigated he would of found out that state's witness statement did not implicate petitioner, there was sled reports where the Solicitor stated there was No Sled testing, Had counsel investigated he would of found SLED tested and there was No DNA match to petitioner, AND counsel would of been aware that the statements or Sled test did not implicate me Trial Counsel delayed inordinately in filing a fast & speedy trial
Ground Two: Trial Counsel gave erroneous advice to plea; failed to file for dismissial since warrants was based on Randy Lowery statements, failed to timely obtain Brady material; Discrimination of Plea
Supporting Facts: Trial Counsel gave erroneous advice to pled guilty counsel had no Knowledge of petitioner case failed to file for a dismissal warrants & indictments was based on Randy Lowery statement which did not implicate petitioner; failed to timely obtain all Brady material pertaining to my case, failed to have any Knowledge of SLED testing; gave me erroneous advice to take a plea for 15 years when he never reviewed my file or investigated none of the evidence.
Ground Three: failed to object to indictment, failed to investigate co-def Counsel was ineff for not knowing what I was charged with; failed to subject state case to meaningful adversial testing(Pet., ECF No. 1 at 5, 7, 8, 10) (errors in original).
Supporting Facts: Trial Counsel failed to object to indictment, the language was differing and failed to give notice if applicant was the principal or under hand of one is hand of all theory; Trial counsel was ineff for not knowing what petitioner was charged with, Counsel failed to subject state's case to any meaningful adversial testing process
Ground Four: Counsel was ineffective for coercing petitioner to plea on advice court would sentence petitioner close to codefendant; failed to object to Courts opening remarks;
Supporting Facts: Trial Counsel coerced petitioner to plea stating judge informed him he would receive around 15 yrs, failed to object to Trial Court opening Remarks to Jury about true & just verdict;
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Habeas Corpus Standard of Review
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas corpus relief unless the decision was "contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States," or the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1), (2). When reviewing a state court's application of federal law, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 410 (2000); see also White v. Woodall, 572 U.S. 415, 419 (2014) (describing an "unreasonable application" as "objectively unreasonable, not merely wrong" and that "even clear error will not suffice") (internal quotation marks and citation omitted); Harrington v. Richter, 562 U.S. 86, 100 (2011); Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005); McHone v. Polk, 392 F.3d 691 (4th Cir. 2004). Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
"A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White, 572 U.S. at 419-20 (stating that " '[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' ") (alteration in original) (quoting Harrington, 562 U.S. at 103). Under the AEDPA, a state court's decision "must be granted a deference and latitude that are not in operation" when the case is being considered on direct review. Harrington, 562 U.S. at 101. Moreover, review of a state court decision under the AEDPA standard does not require an opinion from the state court explaining its reasoning. See id. at 98 (finding that "[t]here is no text in [§ 2254] requiring a statement of reasons" by the state court). If no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. Id. Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories supported or could have supported the state court's decision; and then (2) ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of the United States Supreme Court. Id. at 102. "If this standard is difficult to meet, that is because it was meant to be." Id. Section 2254(d) codifies the view that habeas corpus is a " 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
C. Exhaustion Requirements
A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that "when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies."). To exhaust his available state court remedies, a petitioner must "fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim." Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider only those issues which have been properly presented to the state appellate courts with jurisdiction to decide them. Generally, a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth, 377 F.3d 437; see also Coleman v. Thompson, 501 U.S. 722 (1991). For a procedurally defaulted claim to be properly considered by a federal habeas court, the petitioner must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
D. Standard for Ineffective Assistance of Plea Counsel
A defendant has a constitutional right to the effective assistance of counsel. To demonstrate ineffective assistance of counsel, a petitioner must show, pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), that (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating that "the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims"). To satisfy the first prong of Strickland, a petitioner must show that plea counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution. With regard to the second prong of Strickland, a petitioner "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. However, to prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, the Strickland test is "some what different." Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000). To establish the prejudice prong of the Strickland test, a habeas petitioner who pled guilty 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. (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)) (discussing the Strickland v. Washington standard to establish ineffectiveness of counsel in the context of a guilty plea).
The United States Supreme Court has cautioned federal habeas courts to "guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)." Harrington, 562 U.S. at 105. The Court observed that while " '[s]urmounting Strickland's high bar is never an easy task[,]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The Court instructed that the standards created under Strickland and § 2254(d) are both " 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, "[t]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
E. Respondent's Motion for Summary Judgment
1. Claims That Are Procedurally Barred
Respondent asserts that all but one of the claims raised in the Petition are procedurally barred. Specifically, Respondent argues as follows:
[A]ll of Petitioner's grounds are defaulted except the claim presented to the highest state court in his PCR appeal. In his petition for writ of certiorari, Petitioner alleged, in part, plea counsel was ineffective for inducing an involuntary plea by erroneously advising Petitioner he would receive a sentence between sixteen and twenty years when the plea judge sentenced him to twenty-five years. (Attachment 3 at 1.) Petitioner's remaining grounds are not preserved for habeas review because they were not raised in Petitioner's PCR appeal.(Respt.'s Mem. Supp. Summ. J., ECF No. 14 at 12.) Accordingly, Respondent asks that those claims be dismissed.
Reviewing the Petition, it appears that Petitioner has grouped various claims that were raised to and ruled on by the PCR court into four separate grounds. The PCR court considered and rejected eleven claims of ineffective assistance of counsel. (See App. at 298-305, ECF No. 14-1 at 301-08.) Of those claims, the only issue that PCR appellate counsel raised in the merits appeal was whether Petitioner's plea was involuntary due to plea counsel's advice regarding the sentence that the trial court would impose. (See ECF No. 14-3 at 3.) Petitioner raises that issue in his Ground Four. Since the other ten claims of ineffective assistance of counsel were not raised in Petitioner's PCR appeal, they are procedurally barred here. See Coleman, 501 U.S. 722 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review); Picard v. Connor, 404 U.S. 270, 275-76 (1971) (stating that to exhaust state remedies, a petitioner's "federal claim must be fairly presented to the state courts" to give the state courts "the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding"). Moreover, these grounds would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules if Petitioner attempted to raise them now. See Lawrence, 517 F.3d at 714; Longworth, 377 F.3d 437; see also Coleman, 501 U.S. 722.
There is one claim raised in Ground Two that was not ruled upon by the PCR court. Specifically, Petitioner alleges "Discrimination of Plea[,]" but provides no further explanation or factual support for that claim. (Pet., ECF No. 1 at 7.) The court does not consider these three words without explanation or factual support to be a properly raised claim in this action. See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)) ("It is well-settled that 'conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.' "); see also 28 U.S.C. § 1915(e)(2) (authorizing dismissal where an action "fails to state a claim on which relief may be granted"); Fed. R. Civ. P. 8(a) ("A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . ."). Furthermore, Respondent has moved for summary judgment, and Petitioner has not further addressed or explained his "discrimination of plea" claim. Thus, the court considers it abandoned here. Cf. Eady v. Veolia Transp. Servs., Inc., 609 F. Supp. 2d 540, 560-61 (D.S.C. 2009) ("The failure of a party to address an issued raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.").
Although in his pro se PCR application Petitioner claimed that his equal protection rights were violated due to "[d]iscrimination in sentencing" between himself and his co-defendant, that is not a proper claim for post-conviction relief in South Carolina, a point that the State made in their return to the pro se petition. (App. at 90, ECF No. 14-1 at 93); see Simmons v. State, 215 S.E.2d 883, 885 (S.C. 1975) (" 'Errors in a petitioner's trial which could have been reviewed on appeal may not be asserted for the first time, or reasserted, in post-conviction proceedings.' "). Even if it were a proper ground for such an action, it would be procedurally barred here as it was not ruled upon by the PCR court.
In the motion for reconsideration filed by plea counsel, Petitioner asserted "that the disparity in sentence is unfair between the two- co-defendants." (App. at 32, ECF No. 14-1 at 64.) To the extent Petitioner's instant claim of "Discrimination of Plea" could be considered analogous to the issue raised in his motion for reconsideration, it appears to be properly preserved, but Petitioner has failed to show that the plea court made unreasonable factual findings or unreasonably applied federal law in denying that motion. See 28 U.S.C. § 2254.
While the claims raised in Grounds One, Two, Three, and part of Ground Four are procedurally defaulted, or barred from federal habeas review, such claims may nonetheless be considered by a federal court if the petitioner 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." Coleman, 501 U.S. at 750.
In response to procedural bar allegations, Petitioner asserts that PCR counsel was ineffective for failing to subpoena his co-defendant to the PCR evidentiary hearing. (Petr.'s Resp. Opp'n Summ. J., ECF No. 23 at 1.) He further "assert[s] that any Procedural default or Bar presented by Respondent is moot. Petitioner's claim meets the requirements of Martinez v. Ryan and each issue shall be ruled upon." (Id. at 2.)
Generally, any errors of PCR counsel cannot serve as a basis for cause to excuse a petitioner's procedural bar of his claims. See Coleman, 501 U.S. at 752. However, in Martinez v. Ryan, 566 U.S. 1 (2012), the United States Supreme Court established a "limited qualification" to the rule in Coleman. 566 U.S. at 15. The Martinez Court held that ineffective assistance of counsel "at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. at 9. In describing its holding in Martinez, the Supreme Court has stated:
We . . . read Coleman as containing an exception, allowing a federal habeas court to find "cause," thereby excusing a defendant's procedural default, where (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding."Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez, 566 U.S. at 14, 16, 132 S. Ct. at 1318-19, 1320-21); see also Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (summarizing the Martinez test to require the following: "a reviewing court must determine whether the petitioner's attorney in the first collateral proceeding was ineffective . . . , whether the petitioner's claim of ineffective assistance of trial counsel is substantial, and whether there is prejudice").
Further, to excuse the procedural bar of Petitioner's claims, he must "show that [PCR] counsel's representation during the post-conviction proceeding was objectively unreasonable, and that, but for his errors, there is a reasonable probability that Petitioner would have received relief on a claim of ineffective assistance of trial counsel in the state post-conviction matter." Sexton, 679 F.3d at 1157; see also Williams v. Taylor, 529 U.S. at 391 (stating that "the Strickland test provides sufficient guidance for resolving virtually all ineffective assistance-of-counsel claims"); Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating to demonstrate ineffective assistance of counsel, a petitioner must show that (1) his counsel was deficient in his representation, i.e., that counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution and (2) he was prejudiced as a result).
Petitioner cannot satisfy the limited qualification established by Martinez. PCR appellate counsel's failure to raise the claims cannot constitute cause for the default because the Martinez exception does not extend to PCR appellate counsel. See, e.g., Crowe v. Cartledge, C/A No. 9:13-cv-2391-DCN, 2014 WL 2990493, at *6 (D.S.C. July 2, 2014) ("[I]neffective assistance of PCR appellate counsel is not cause for a default."); Cross v. Stevenson, Civil Action No. 1:11-cv-02874-RBH, 2013 WL 1207067, at *3 (D.S.C. Mar. 25, 2013) ("Martinez, however, does not hold that the ineffective assistance of counsel in a PCR appeal establishes cause for a procedural default."). The Supreme Court expressly noted that its holding in Martinez "does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts." Martinez, 132 S. Ct. at 1320 (emphasis added).
As to Petitioner's allegation that PCR counsel was ineffective for failing to subpoena his co-defendant to testify at the PCR evidentiary hearing, that alleged error does not explain the procedural default of the majority of Petitioner's ineffective assistance of counsel claims. Nor does Petitioner explain or present evidence as to how PCR counsel's failure to call his co-defendant as a witness was constitutionally deficient or resulted in prejudice. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) ("[Petitioner] cannot meet his burden to show that counsel made errors so serious that his representation fell below an objective standard of reasonableness based on vague and conclusory allegations that some unspecified and speculative testimony might have established his defense.").
For the above reasons, Martinez does not aid Petitioner in excusing his procedural default of the majority of his claims of ineffective assistance of counsel, including the entirety of Grounds One, Two, and Three, and part of Ground Four. Therefore, these claims are procedurally barred.
2. Preserved Claim
The only issue that is properly preserved for this court's review is whether Petitioner's guilty plea was rendered involuntary by plea counsel's advice that the judge would sentence Petitioner to incarceration for some amount of time between sixteen and twenty years based on the judge's statements during an in-chambers conference and whether plea counsel was ineffective for failing to put the contents of that in-chambers conversation in the record. The PCR court considered and rejected this claim on the merits. Respondent argues that the PCR court's decision was reasonable in both law and fact. The court agrees that Petitioner has failed to show he is entitled to habeas relief under the applicable standard.
Petitioner pled guilty to the charges against him after jury selection and after his co-defendant pled guilty. During the PCR evidentiary hearing, Petitioner testified that he was concerned that plea counsel had not properly prepared for trial and would not be able to adequately represent him at trial. (App. at 125, ECF No. 14-1 at 128.) He further testified that on the day of jury selection he learned that his co-defendant was willing to testify against him. (App. at 135-36, ECF No. 14-1 at 138-39.) Petitioner testified that plea counsel "initially told me to take a guilty plea before we even picked a jury. He was trying to initiate me to take a guilty plea. And I told him that I didn't want to take a guilty plea." (App. at 142, ECF No. 14-1 at 145.) Petitioner explained that he did not want to plead guilty since the "entire time I've been sitting in the county, waiting on trial, he was telling me that I had nothing to worry about and he had everything under control." (Id.) According to Petitioner, the following morning plea counsel again advised him that it was in his best interest to plead guilty. (App. at 142-43, ECF No. 14-1 at 145-46.) Petitioner testified that plea counsel indicated that the State did not want to enter into a negotiated plea with him as they had done with his co-defendant. (App. at 143, ECF No. 14-1 at 146.) However, Petitioner testified that plea counsel told him that he "would not get the same amount of time that my co-defendant got, because that was a negotiated sentence, but I wouldn't get far from it. He said it—it may range—maybe between 16/17, no more maybe than 20—no more." (App. at 143, ECF No. 14-1 at 146.) Petitioner testified that plea counsel never put his advice to Petitioner regarding the potential length of the sentence on the record during the plea. (App. at 143-44, ECF No. 14-1 at 146-47.) On cross-examination, Petitioner testified that he pled guilty pursuant to plea counsel's advice that it was in his best interest to plead guilty. (App. at 151, ECF No. 14-1 at 154.) When asked if he pled guilty to avoid the possibility of a longer sentence, Petitioner stated, "I wouldn't necessarily say that because I was just looking at the fact that if we were to go in there, him not being prepared, it—that's—that's pretty much what would've happened. Yeah." (App. at 169, ECF No. 14-1 at 172.) Petitioner testified that he was potentially facing 120 years based on his charges. (Id.)
Plea counsel testified that, until the morning that jury selection was set to begin, the State had very little evidence against Petitioner. (App. at 174-77, ECF No. 14-1 at 177-80.) However, that Monday morning plea counsel learned that Petitioner's co-defendant, Kareene Upchurch, had decided to plead guilty when Upchurch's counsel told plea counsel as much. (App. at 178, ECF No. 14-1 at 181.) According to plea counsel, Petitioner was still planning to proceed with a trial at that point. (App. at 178-79, ECF No. 14-1 at 181-82.) After jury selection, plea counsel stayed and watched Upchurch's guilty plea proceedings at which Upchurch pled guilty but sentencing was deferred. (App. at 179, ECF No. 14-1 at 182.) Plea counsel testified, "[T]he minimum he was going to get was 15 years. And that was based on him cooperating against Kadeem. That mean he's going to testify against Kadeem. Or else if he didn't cooperate, obviously he's out there to be screwed by the judge in sentencing." (Id.) Plea counsel then testified to his conversation with Petitioner the following morning:
Kadeem came back over Tuesday morning. And he said, "Mr. Brooks, I heard my cousin pled."
I said, "Yes, he did."
And I—I remember this. Because I said, "Kadeem, your case—the dynamics of your case have changed drastically. They had no case against you. Now they only—they got your codefendant cousin, which means now they got a strong case against you."
And he said, "What's the situation with my cousin?"
I told him, "He's looking at getting 15, but it's been deferred."
"Any way my cousin can get out of it?"
I said, "If he testifies and he screws the state, they're going to screw him when it comes to sentencing. So he's got to deliver you in order to save his behind."
And he said, "Oh"—Kadeem said, "Oh man. Man, I got to plea now."
I said, "I'll go back here and I'll talk to them." When I say go back here and talk to them, them being [the solicitor] and, of course, [the judge], I'll never forget this. Because this only happened on his case.
I go back in chambers. I say, . . . "Hey, can we work something out now?"
Of course, now [the solicitor's] got leverage. He says, "Well, Brooks, I can just let your man plead straight-up."(App. at 178-79, ECF No. 14-1 at 182-83.) Petitioner did plead guilty, but he received a total sentence of twenty-five years. (App. at 181, ECF No. 14-1 at 184.)
All right. Yeah. And he knows he got me in front of Judge Jeff Young. I don't know how many times you been in front of Judge Jeff Young. But Jeff Young is not a very practical person that I want to take a plea in front of.
And he knows this. So then we go back in front of the judge—we go in Judge Young's chambers. Judge Young says to me, "Hey, Brooks, if your guy takes a plea, I ain't going to do him much worse than Upchurch. I ain't going to give him 15, but I ain't going to do him much worse than that."
Okay? Now, I interpret that to be 16/17/18—no more than 20. That's what I interpreted it to be.
I go back and I tell Kadeem, "This is what the judge says," exactly verbatim.
The PCR court found that Petitioner had not met his burden of proving ineffective assistance of counsel or that his plea was entered involuntarily. (App. at 303-04, ECF No. 14-1 at 306-07.) The PCR court specifically found that plea counsel "credibly testified that he did not advise Applicant that he would get fifteen years, but rather that he believed the plea judge was inclined to give him a sentence of 'not much more' than what his co-defendant received fifteen years based on a chambers conference." (App. at 303, ECF No. 14-1 at 306.) The PCR court determined that Petitioner and plea counsel had a mutual understanding of the in-chambers conversation. (App. at 304, ECF No. 14-1 at 307.) The PCR court found it "clear that plea counsel acted within reason based on his understanding of the situation." (Id.) Furthermore, plea counsel's "decision not to put this conversation on the record, whether during sentencing phase or during reconsideration, is a decision made within the bounds of reasonable trial strategy and prevailing professional norms." (Id.) Finally, the PCR court noted Petitioner's testimony that the fear of a long sentence was not his primary reason for pleading guilty. (Id.) For all of those reasons, the PCR court found that Petitioner had not met his burden of showing ineffective assistance of counsel.
Petitioner has failed to show that the PCR court's findings as to plea counsel are contrary to, or an unreasonable application of, clearly established federal law, or are the result of an unreasonable determination of the facts. Petitioner's arguments that his plea was involuntary rely, in large part, on his testimony at the PCR evidentiary hearing that he pled guilty because plea counsel advised him that he would not be sentenced to more than twenty years' incarceration. (See Petr.'s Resp. Opp'n Summ. J., ECF No. 23 at 8.) However, the PCR court did not give credence to that testimony in the order of dismissal. The PCR court found that trial counsel's testimony was credible, a determination entitled to deference here. (App. 304, ECF No. 14-1 at 307); see Elmore v. Ozmint, 661 F.3d 783, 850 (4th Cir. 2011) ("We must be 'especially' deferential to the state PCR court's findings on witness credibility, and we will not overturn the court's credibility judgments unless its error is 'stark and clear.' ") (quoting Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010) and Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008)). Petitioner has failed to point to clear and convincing evidence to rebut the PCR court's factual findings. See 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). Based on the credible testimony of plea counsel, it was not unreasonable for the PCR court to find that Petitioner's guilty plea was not induced by trial counsel's advice concerning the amount of time that Petitioner would likely receive.
RECOMMENDATION
For the foregoing reasons, the court recommends Respondent's motion for summary judgment (ECF No. 15) be granted and the Petition be denied.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE March 6, 2019
Columbia, South Carolina
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. 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).