Opinion
C. A. 1:22-4436-BHH-SVH
08-25-2023
Faasiu Toese, Petitioner, v. Warden Donny Stonebreaker, Respondent.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE.
Faasiu Toese (“Petitioner”) is an inmate at the Evans Correctional Institution of the South Carolina Department of Corrections (“SCDC”). He filed this 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 Respondent's return and motion for summary judgment. [ECF Nos. 18, 19]. Petitioner filed a response on June 2, 2023 [ECF No. 29] and a supplemental response on July 5, 2023 [ECF Nos. 30, 31]. Respondent did not file a reply and the time to do so has expired.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
In January 2013, after Petitioner argued with his girlfriend, he stabbed her over 15 times with a kitchen knife. [ECF No. 18-1 at 11, 17]. He 1:22-cv-04436-BHH Date Filed 08/25/23 Entry Number 32 Page 1 of 25 attempted to clean the apartment, then folded his girlfriend's body into a large plastic bin that he placed in the back of his car. [Id. at 13-14, 17-18, 20]. He drove around for some time before parking at a McDonald's and calling the police to tell them his girlfriend had attempted suicide. [Id. at 1213].
In April 2013, the Richland County Grand Jury indicted Petitioner for murder. [ECF No. 18-1 at 126-27]. On March 18, 2015, Petitioner appeared with Jennifer Davis, Esq. (“Plea Counsel”), before the Honorable Robert E. Hood, Circuit Court Judge, pursuant to a negotiated plea. Id. at 3. Because Petitioner's habeas claim alleges, inter alia, not having understood the guilty plea proceedings, the undersigned includes the relevant portions of the guilty plea transcript:
THE COURT: All right. How do you say your last name, sir?
THE DEFENDANT: Toese.
THE COURT: Toese. Good morning, Mr. Toese.
THE DEFENDANT: Good morning, Your Honor.
THE COURT: Are you under the influence of any alcohol or drugs today?
THE DEFENDANT: No, Your Honor.
THE COURT: Have you ever been treated for any mental health issues?
THE DEFENDANT: No, Your Honor.
THE COURT: Okay. Other than your evaluation that you just had, have you ever been treated for mental health issues?
MS. DAVIS: Your Honor, he's on Zyprexa. It's a-treats a general-antipsychotic medication. THE COURT: Okay.
MS. DAVIS: He's been on that since he's been at the jail, Zyprexa.
THE COURT: Okay. Have you taken that medicine as prescribed by a licensed medical professional?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Have you understood your conversations with your attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand what's going on here today?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And Ms. Davis, have you explained the nature of the charges, the possible
penalty, and your client's constitutional rights to him?
MS. DAVIS: Yes, Your Honor.
THE COURT: Okay. Mr. Toese-Toese, excuse me. They tell me that you want to plead guilty to one count of murder. That carries a mandatory minimum of 30 years in prison up to life without parole. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And do you understand that this is designated as a violent offense in our system? THE DEFENDANT: Yes, Your Honor.
THE COURT: And do you understand that this is designated as a most serious offense in our system?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And what most serious means is were you to receive one more conviction for a most serious offense in your life, you would be facing mandatory life without parole. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And do you also understand that on a murder charge, it is what we call a day-for-day sentence. There is no parole. The sentence that I give you today, you will do 100 percent of before you will be released. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Now, once you are released from that sentence, you will be released onto what is known as the Community Supervision Program and monitored for at least two years before you are free from being monitored by anybody. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are you on probation or parole now?
THE DEFENDANT: No, Your Honor.
THE COURT: When you plead guilty, Mr. Toese, you give up certain important constitutional rights. The first is your right to remain silent. Do you understand that right?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And do you want to give up that right?
THE DEFENDANT: Yes, Your Honor.
THE COURT: The second right that you give up is your constitutional right to a jury trial. Do you understand what a jury trial is?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And do you want a jury trial, or do you want to proceed with your guilty plea?
THE DEFENDANT: I want to plead guilty.
THE COURT: Third, you give up your right to confront the witnesses that the State would call against you, to call witnesses on your own behalf and to present any defense you may have. If you plead guilty, none of that is going to happen. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: So your jury-and during your jury trial, you would have the right to the representation of counsel. You would be presumed innocent. The burden would be upon the State to prove your guilt to a jury of 12 people unanimously beyond a reasonable doubt. During the trial, you would have the right to remain silent. You would be presumed innocent. You would also have the right to confront and cross-examine each witness the State would call against you. Further, you would have the subpoena power of the court to compel witnesses to come in and testify. If you plead guilty, none of that is going to happen. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Now, you've been indicted for murder. Your indictment states that on or about
January 1st of 2013, you did willfully, feloniously, and intentionally kill the victim, Temukisa, T-E-M-U-K-I-S-A-I apologize if I said that incorrectly to anybody-Enele, E-N-E-L-E, with malice aforethought either expressed or implied by means of stab wounds, and the victim did die as a proximate result thereof on or about January 1st of 2013 in Richland County. How do you plead to that charge?
THE DEFENDANT: Guilty, Your Honor.
THE COURT: Okay. Now, this is what we call a negotiated plea. Have you and Ms. Davis talked about the fact that this plea is negotiated?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. And do you understand that under the terms of it being negotiated-and negotiated is an official court term. Under the terms of it being negotiated, even if I wanted to give you less than 36 years, I could not, and the reverse of that is even if I wanted to give you more than 36 years, I could not. Essentially, as I sit here, if I go along with your plea, my hands are tied, and I must give you the 36-year sentence. Whether I think it should be more or it should be less, I'm bound by the negotiations. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Besides those negotiations, has anybody promised you anything to get you to plead guilty?
THE DEFENDANT: No, Your Honor.
THE COURT: Has anybody forced you or threatened you to get you to plead guilty?
THE DEFENDANT: No, Your Honor.
THE COURT: Are you pleading guilty freely and voluntarily?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are you completely satisfied with the services of your attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you and your attorney fully discussed the charges against you and the evidence that would be presented at trial?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And are you pleading guilty because you are, in fact, guilty of this murder?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You have ten days from today's date to appeal this plea. If you choose to do so, you must do so in writing to this court. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Ms. Simpson?
MS. SIMPSON: Thank you, Your Honor. This incident occurred between January 1st, 2013 around approximately ten p.m. and January 2nd, 2013 about 2:30 a.m. in the morning at the home of both the victim in this case, Temukisa Enele and the defendant, her boyfriend at the time, located at here in Richland County. That is the location where the defendant brutally stabbed and murdered the victim who was only age 25 at the time of her death. She is fondly referred to by her friends and family as Kesa, and that's how I'll refer to her throughout this- these facts, Your Honor. During the early morning hours on the 2nd, officers were dispatched to which is actually the parking lot of the McDonald's in response to a possible suicide attempt. The defendant in this case was the one who called 9-1-1. At that time when he called, he was in the process of driving-or believed to be driving. He was very calm. He requested an ambulance. Of course, there is a conversation between him and the dispatcher. He continues to say he really needs help but that he's not at the house. The dispatcher at this point in time thinks that he is actually the one who is injured. Through the course of this conversation-and I'll just read a portion, Your Honor. He finally indicates to her that he needs an ambulance because she has hurt
herself and she tried to commit suicide; that she used a knife to her. The operator then asks, “Okay, so she cut herself with a knife?” At that point, he indicated, “Yes. She stabbed herself with a knife. I tried to stop her. I couldn't help. She was so mad.” When asked where he stabbed her, he was asked several times, and he just kind of stated, “Well, like all over, I guess, the face and neck.” As I said, he was very calm and kind of causal throughout the course of this conversation. When asked how long ago she injured herself, he was somewhat evasive. He finally did say, “I'm not really sure. I just panicked when the thing happened. I saw her. She didn't move. She didn't move at all. She just laid down. At that point, I grabbed her and tried to wake her up, but she just laid down. I didn't want to do nothing.” Your Honor, officers actually did respond pretty quickly to the McDonald's location. At that point when they arrived, they made contact with the defendant who was driving a Montero sport vehicle. They approached him and asked him where the female who was hurt was. At that point, they directed him-or the defendant directed them to the vehicle that he was driving and stated, “She is in the back of the car.” At that point, at the direction of the officers and his own, I guess volition, he opened the vehicle. Officers observed a Tupperware Rubbermaid bin container, two of them. She had been placed crouched, I guess in one, and the other had been flipped over to cover on top of her. The defendant was immediately advised of his rights on scene and then questioned as to where the actual incident took place because it appeared that it did not occur in the vehicle or at the McDonald's. The defendant told them the location of their home on and again stated that, “She is just inside the container.” EMS was notified and responded quickly to the scene. Upon their arrival, they found Kesa stuffed into the container, and as a result, they were actually unable to attach any leads due to her size and the position in the container. They did confirm, however, that she was unresponsive, and they noticed blood to her face and neck and that she was cold to the touch and that lividity had begun to set in. She was pronounced dead at the scene, and based on all of the evidence, there was no-there were no lifesaving efforts that could have been possible at that time. Officers immediately secured the scene at the McDonald's location and crime scene investigators, as well as investigators were notified and responded in addition to the coroner's office who noted in addition to the blood that there was also vomit or what appeared to be vomit about her face and hair. The investigators and crime scene investigators were also notified to respond to the actual incident location which was the home on The vehicle, the Montero sport, at the McDonald's which the defendant had driven the victim in which contained the container, that tag was run and came back to a lady by the name of Jasmine Taylor who is actually present here in the courtroom today. She was subsequently interviewed by investigators. Investigator Carwell was notified and assigned as the lead on this case. He arrived at the McDonald's and also observed the victim who at that time I believe had been taken out of the container still in the position where her body was. She appeared to have been cut and stabbed repeatedly, and one of the other crime scene investigators actually pointed out a number of defensive wounds to her hand, specifically her thumb as well as lacerations to her forearms. By this point in time, Your Honor, Sergeant Eisenhower had already transported the defendant to headquarters in order to be interviewed, and Investigator Carwell proceeded to headquarters, as well. After being briefed about the situation, the defendant was advised of his rights in writing which he did, in fact, waive. His demeanor investigators described as being very calm as he told his story or version of events that transpired causing him to murder his girlfriend. This information would be very different than that that he relayed to the 9-1-1 operator. Specifically, Your Honor, he stated that he got off work from Wal-Mart. They actually-both he and the victim in this case, Kesa, worked at the Wal-Mart together. When he arrived home after a period of time, he began to ask her if anyone had been at the house while he was working. Specifically he asked about one of their friends and coworkers, Greg, later identified as Greg Miller who was also interviewed,
about being at the home. According to him, he had suspicions which were never confirmed or validated in this investigation that Greg and Kesa were having an affair. He stated then that the victim got mad because of the accusation that he was making against her, and at that time, she actually pushed him and then hit him in the face, eye and chest with her hands. No visible injuries were actually noted in these areas by the investigators. The defendant stated that he tried to hug her in an effort to get her to feel what he felt and wanted to be with her-told her that he wanted to be with her and to work things out and that he was very sorry and apologetic about the accusation. However, after this apology or at the point in time of this apology, the defendant said that he hit Kesa on her cheek with his wrist because he was trying to get her off of him, and that was actually swollen, was the wrist that was swollen, the only visible injury on him. He stated that the victim continued to try to punch him and actually grabbed a knife. At this point, he initially believed that she was going to use the knife on herself, and so he went after that knife. At that point, he says things just went wrong. He got the knife. The victim tried to hit him to get him away, and he just lost control. He recalls stabbing her four times. He couldn't understand what he was doing, and then stated that he just blacked out. When he came to-and I'll back up just a moment. The victim actually suffered 15-approximately 15 or more stab wounds in addition to cuts and lacerations to her body with the fatal injuries being to her neck. The defendant stated that he came to after this at some point and tried to figure out how to get help. He said that he went outside and backed the car up to the front door, and then he went to the back of the house to try to carry Kesa to the car, but he couldn't lift her because she was too heavy. So at that point, he decided he would put her in the plastic container. He decided to turn the container on its side to maneuver her body in there and then dragged the container to the door to get it closer so that he could actually get her up into the vehicle. He said that he put the container on top of her, the second container just so that she would not get wet. At that point, he placed her body in the car and then drove off. He then stated-and this was actually confirmed that he texted Greg-and this is the same Greg that he had accused her of having an affair with-for help to find a hospital. He said Greg would not answer his text message so he tried calling him, and he didn't answer the phone call either. The defendant then said he drove all the way to the Wal-Mart on Harbison which is a substantial distance away and that he pulled in but then just decided to pull out of the parking lot. At that point, he was just trying find a good place to park the car and figure out what to do next, but he said that during this time, he just couldn't find anybody to help him essentially get help for her to find a hospital. It's at this point that he drove to the McDonald's on Parklane and finally realized that he might want to call 9-1-1. At that point, he did call 9-1-1 and gave the information that I stated earlier. He also, Your Honor-beg the Court's indulgence. (Pause.) Your Honor, he also told the police that they had lived together for about three years and prior to-probably about six months prior to this they had been involved in an altercation in which he was charged with criminal domestic violence against her. At this point, the investigators were actually receiving information from the crime scene investigators themselves at the incident location specifically regarding the murder weapon and things of that nature, and he was questioned about those. He was asked what he did with the murder weapon or what the murder weapon was, and he stated that it was a silver cooking knife. He initially said he just threw it on the floor and couldn't remember where. Then when asked why he did not call police, he said, “Well, I was just rushing to get to the hospital and didn't have a working phone.” However, at the time of his arrest, he actually had two working cell phones on his person and did, in fact, call both Greg and 9-1-1 from that phone. He was also questioned about his attempts to clean up prior to getting help or calling the police. The defendant said that he essentially got on the floor, gave her a hug and didn't know-didn't want the house to smell like the blood because there was so much blood everywhere. So at that point
he utilized a shirt as well as a tank top and some Clorox in an effort to clean up the area. Again, he was asked about why he did not use the phone at the house. At this point he stated a second or a third version, however many, that he wanted to get her in the car before he called, and at some point he realized she was dead but he wasn't really sure when that was. He just kind of kept sitting there for awhile just thinking something was wrong. After making the efforts to-or just to address the efforts to clean up, crime scene investigators, as well as the investigators who walked the scene, the strong odor of Clorox was clearly notable when they went in, and this was some time after the actual crime had happened. Crime scene investigators would note that there appeared that there had been a struggle throughout the house. There was blood still on the walls, the bathroom wall, as well as the bedroom wall, I believe the TV that had been moved. There was a container of bleach, as well as a knife that had been wrapped in bubble wrap. The floor was wet in places with clear standing liquid, as well as another gray plastic tub which contained cloth items and a quantity of blood on those. This-blood stains were swabbed, and the DNA was tested and did come back to be that of the victim in this case. Your Honor, the investigation continued, and several people were interviewed to include Ms. Butler who is also present in the courtroom. She provided information regarding an additional vehicle in this case which was actually broken down and located at the Wal-Mart where they both worked. This vehicle, it was set up in such a way-the best way to describe it is kind of a tent living area, and that was indicated to investigators as being the place where the defendant made the victim stay while he was at work; that he would make her stay in the vehicle whenever she was not with him. They also spoke with a friend, Ms. Joanne Foster, who is also present in the courtroom, I believe. Ms. Foster indicated to them that she and Kesa were, I guess coworkers and friends, and she was aware that the victim in this case had suffered both mental and physical abuse that was relayed to her by the victim at the hands of the defendant and that she had actually made several attempts to leave him in the past. Jasmine Taylor was also interviewed. She is present, too, in the courtroom. She is the one who actually loaned the vehicle to the defendant as their vehicle was not working, also a friend of actually both of them and coworker. She would mention that there was an occasion where the victim had come to work with a black eye and that Kesa did indicate to her that they often fought at least verbally. Your Honor, the autopsy in this case was quite extensive. Dr. Marcus conducted it. It took approximately four hours based on the nature of her wounds. There were 15 stab wounds, multiple cuts and lacerations. The cause of death was actually multiple fatal stab wounds to the neck. Also noted was blunt force trauma to the back and side of her head, and her carotid artery had been lacerated. Your Honor, with respect to the facts in this case, that would be all of the facts. He does not have a prior record. At the appropriate time, the victims would like to address Your Honor, and if I could tell you who is present in the courtroom on their behalf.
THE COURT: All right. Mr. Toese, do you materially agree with the facts as stated by the State?
THE DEFENDANT: Yes, Your Honor.
THE COURT: I find that there is a substantial factual basis for this plea. I also find that the defendant's decision to plead guilty is freely, voluntarily, knowingly and intelligently made; that he's had the advice of a very competent attorney with whom he tells me he is satisfied.
THE COURT: All right.
MS. DAVIS: Thank you, Your Honor. ...He just doesn't-he doesn't have an actual memory of doing all of those things. He knows that he did, and he is standing here today for that reason, to take responsibility because that's all that he has left that he can do at this point. He understands the loss he has caused to his family, more importantly the loss he has caused to her family. He knew that they were a close family. He knew that this was a tragedy to them. He has family, as
well, Your Honor. He has his mother, his father, and his sister that live out in California. Because of that distance, they weren't able to be here for him today. He also has a sister that lives here in Sumter, but she has been deployed. So she is not available. He does have a family that now supports him. When this first occurred-I wasn't his attorney at the time, but my understanding is there was a good deal of time where they were not willing to communicate with him where they couldn't understand or believe that he had done this or that he is responsible for this. I think they have worked themselves through trying to understand and forgive, as well. He has been fortunate in that regard that they have come back in his life. Dr. Knight also believed that he had PTSD from this incident, and I say that in-to say that that's consistent in her mind with the true remorse that he feels; that because of what happened, he does-he is sympathetic. He is remorseful. He does feel horribly for what happened. I can't say that from everything we see in this courthouse. I believe that to be very true for him. I know he wants to address Your Honor and the Court, I believe, briefly. I would just ask Your Honor to accept the negotiated sentence.
THE COURT: Yes, sir. Is there anything you'd like to tell me?
THE DEFENDANT: Yes, Your Honor. First of all, you would like to apologize, Your Honor, and the State, the Solicitor, for-for everything, especially the victim's family. I know I am responsible for this, but I still love her even though she is not here. She still lives in my heart. Your Honor, I truly want to say sorry to the family and everybody in this court. Thank you, Your Honor.
THE COURT: Thank you, Mr. Toese....Mr. Toese, you need to be thankful for their forgiveness. That's very rare that we have families in here that can genuinely say that they forgive you in-in these situations. This is a horrific, horrific case. This is one of the most violent homicides I have seen, and you need to be thankful to your lawyer, to Kesa's family, to the prosecution for the negotiated sentence. Were it left up to my discretion, I would give you more than this due to the extreme violent nature of the case. So you need to be thankful for the heart of the people who have surrounded you in this case and live your life accordingly. The sentence of this Court is that you be committed to the State Department of Corrections for 36 years. Credit for time served. No contact directly or indirectly with the victim's family. Thank you very much.Id. at 5-42. Petitioner filed a timely notice of appeal. [ECF No. 18-2]. The South Carolina Court of Appeals (“Court of Appeals”) dismissed the appeal for failure to provide a sufficient explanation in accordance with local rules. [ECF No. 18-4]. The Court of Appeals subsequently denied Petitioner's petition for rehearing, and the matter was remitted to the lower court on April 26, 2016. [ECF Nos. 18-5 (order denying rehearing), 18-6 (remittitur)].
Petitioner filed an application for post-conviction relief on November 25, 2015, alleging Plea Counsel was ineffective in various respects, including not having provided an interpreter for their meetings and the plea hearing. [ECF No. 18-1 at 45-50]. On April 1, 2019, the Honorable J. Derham Cole, Circuit Court Judge, conducted an evidentiary hearing and heard testimony from Petitioner and Plea Counsel. [Id. at 57]. Petitioner was represented by Jonathan Waller, Esq. (“PCR Counsel”). [Id.] Judge Cole denied and dismissed Petitioner's application on September 20, 2019. [Id. at 112-25].
Through appellate counsel Sarah E. Shipe, Esq., Petitioner filed a petition for writ of certiorari of the PCR court's decision to the South Carolina Supreme Court [ECF No. 18-7], presenting the following issue:
Did the PCR court err in finding counsel was not ineffective for failing to secure an interpreter for Samoan, non-native English-speaking petitioner at their meetings or at petitioner's guilty plea, where counsel admitted petitioner had trouble understanding legal concepts?[Id. at 3]. The South Carolina Supreme Court transferred Petitioner's case to the Court of Appeals, which denied certiorari on August 16, 2022. [ECF Nos. 18-9 (transfer order), 18-10 (order denying certiorari)]. The matter was remitted to the lower court on September 7, 2022. [ECF No. 18-11]. This action followed.
II. Discussion
A. Federal Habeas Issues
Petitioner raises one ground for relief:
Ground One: The PCR court and higher court erred in failing to find counsel ineffective for failing to secure an interpreter for Samoan, non-native English-speaking Petitioner at their meetings or at Petitioner's guilty plea, where counsel
admitted Petitioner had trouble understanding legal concepts.[ECF No. 1-1 at 1].
In his supplemental response, Petitioner includes additional allegations of ineffective assistance of counsel. [ECF No. 30 at 1-3]. However Petitioner “cannot amend his petition by way of his response to the motion for summary judgment.” Amerson v. Stevenson, C/A No. 4:11-3266-DCN-TER, 2012 WL 1897851, at *5 (D.S.C. May 1, 2012), adopted by 2012 WL 1899623 (D.S.C. May 23, 2012). To the extent his additional allegations relate to “excus[ing] a procedural default,” Petitioner properly presented his one ground for relief to the state's highest court and it is not procedurally defaulted. [See ECF No. 30 at 1 (citing Martinez v. Ryan, 566 U.S. 1 (2012), and discussing the standard for “excusing a procedural default of an ineffective assistance of counsel.
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 Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), review of his claim 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 claim”)]. 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).
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. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before 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.28 U.S.C. § 2254.
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). The United States Supreme Court has held that “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”-which includes “petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court “both the operative facts and the controlling legal principles” associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). That is to say, the ground must “be presented face-up and squarely.” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 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 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. Smith v. 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), superseded by statute on other grounds (AEDPA).
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 Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
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.
D. Analysis
Petitioner alleges Plea Counsel was ineffective for having failed to procure a Samoan interpreter. To prevail on his claim, Petitioner had to show the PCR court (1) Plea Counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability existed that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The Sixth Amendment's guarantee of effective assistance of counsel applies with equal force to critical pretrial matters, including deciding whether to plead guilty. See Lafler v. Cooper, 566 U.S. 156, 165 (2012); Hill v. Lockhart, 474 U.S. 52, 58 (1985). Strickland's two-part test governs the court's analysis but here the prejudice prong “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59. “In other words, in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
In evaluating a state court's application of Strickland, the “question is not whether counsel's actions were reasonable,” but whether “there is any reasonable argument that counsel satisfied Strickland's deferential standards.” Harrington v. Richter, 563 U.S. 86, 105 (2011). To warrant relief, the unreasonableness of the state court determination must be “beyond any possibility of fairminded disagreement.” Id. at 103. Petitioner fails to make this showing.
Petitioner alleges that, at the time of his guilty plea, he did not understand English well enough to comprehend “the crime he was charged with, his legal options, or the rights he waived by pleading guilty.” [ECF No. 1-1 at 3]. According to his PCR testimony, Petitioner was born in Samoa and lived there until 2010, when he moved to California.[ECF No. 18-1 at 7172]. He studied English in school, but spoke only Samoan at home. [Id. at 72-73]. Petitioner stated he spoke “[v]ery little English” in 2013 when he was arrested. [Id. at 74]. He claims to have asked Plea Counsel for an interpreter during their first meeting and that he had difficulty communicating with her effectively and expressing “what [he] wanted [her] to do or things that needed to be done with [his] case.” [Id at 77, 80-81]. Petitioner stated he did not understand everything the judge asked him during the guilty plea colloquy and did not know he could tell the judge he was not understanding. [Id. at 89-90].
Petitioner testified through an interpreter at the PCR hearing. [See ECF No. 18-1 at 71].
Plea Counsel testified she and Petitioner met six or seven times prior to his plea hearing and spoke English in each of those meetings. [Id. at 94]. She stated Petitioner never indicated he needed an interpreter or that he was having trouble understanding their conversations. [Id. at 94-95]. She felt Petitioner was able to help prepare the case. [Id. at 95]. Plea Counsel was concerned about Petitioner's mental health, so he was evaluated twice and found competent, but counsel never had any concerns about Petitioner's ability to understand their conversations. [Id. at 97-100]. Plea Counsel testified Petitioner did not tell her he did not understand anything that was happening during his guilty plea and he responded appropriately to the judge's questions. [Id. at 101]. She stated she would have attempted to secure an interpreter had she felt Petitioner was having trouble understanding what was happening, but that nothing in their interactions led her to believe there were any issues. [Id. at 101-02]. Petitioner had some “legitimate confusion about the trial system” and general cultural differences but, “in terms of questions or explaining things to him,” Plea Counsel's only concerns were based on competency, not a language barrier. [Id. at 102, 104].
The PCR court summarized the hearing testimony, recited the relevant Strickland standard, and found Petitioner “ultimately chose to plead guilty in order to avail himself of a guaranteed thirty-six year sentence, and this decision was made freely and voluntarily.” [Id. at 112-20]. The PCR court found the plea colloquy dispositive of each of Petitioner's claims, including that his claim that Plea Counsel was ineffective for failing to secure an interpreter. [Id. at 120]. The court reasoned as follows:
The plea transcript reflects Applicant entered his plea knowingly and voluntarily, engaged in an intelligent and coherent colloquy with the plea court, and gave appropriate responses to the court's questions....
Importantly, Applicant informed the plea court he had understood all of his conversations with Counsel, and he understood why he was in court and what he was doing. Applicant averred he [was] satisfied with Counsel and felt they had fully discussed the charges and evidence. Applicant stated no one had threatened him or promised him anything to induce his guilty plea, and he was entering the plea freely and voluntarily. Applicant was given the opportunity to speak to the plea court and never indicated he did not understand the proceedings or needed an interpreter. Instead, Applicant took responsibility for the crime, telling the plea court, “I know I'm responsible for this.”
The Court finds Counsel's representation of Applicant was not deficient. The Court finds credible Counsel's testimony she was able to communicate effectively with Applicant, and she had no indications he did not understand their conversations. This finding is confirmed by the plea transcript, which reflects Applicant understood the plea court's colloquy and answered the plea court's questions intelligently....[Id. at 122-24 (citations to record omitted)].
In support of his federal habeas petition, Petitioner continues to allege he did not understand his conversations with Plea Counsel or all the questions during the plea colloquy. [ECF No. 29 at 2-3]. Petitioner contends the PCR court erred by only considering Plea Counsel's perspective and not the “circumstances surrounding the Petitioner's need [for] an interpreter,” including his background, origin, length of education, experience with the American criminal justice system, and how long he had been in the United States. [Id. at 4-5].
However, Strickland instructs courts considering challenges to counsel's performance “to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” 466 U.S. at 689. The PCR court did exactly that and reasonably found Plea Counsel's testimony credible and supported by Petitioner's own representations to the court during the plea colloquy. To the extent Petitioner challenges the court's credibility finding, Petitioner's mere disagreement is not enough to warrant habeas relief. See Merzbacher v. Shearin, 706 F.3d 356, 368 (4th Cir. 2013) (“[D]isagreement alone is not enough. The federal court must conclude not only that the state court's determination was wrong, but that it was unreasonable in light of the evidence presented, that is, it is not ‘debatable among jurists of reason.'”). This court “must be especially deferential to the [PCR] court's findings on witness credibility,” and “will not overturn the court's credibility judgments unless its error is stark and clear.” Elmore v. Ozmint, 661 F.3d 783, 850 (4th Cir. 2011). Petitioner has not shown any error any the PCR court's judgment.
Further, the PCR court correctly applied controlling Supreme Court precedent concerning appellate review of guilty pleas. “[T]he representations of the defendant, his lawyer, and the prosecutor at . . . a [plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). The PCR court properly relied on Petitioner's representations to the plea court that he understood the proceedings, the charge against him, and his conversations with counsel and was voluntarily and knowingly entering into a negotiated plea bargain with the State. See id. at 74 (“Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”). The court's review of the guilty plea transcript reflects the PCR court's reasonable finds: Petitioner states he has understood his conversations with counsel and the nature of the proceeding [ECF No. 18-1 at 6]; Petitioner states he and counsel have discussed the negotiated plea and he understands the terms, Id. at 9-10; Petitioner agrees he is pleading guilty freely and voluntarily and because he is guilty of the murder and states he is satisfied with Plea Counsel's services, Id. at 10-11, plea court finds Petitioner's decision to plead guilty is freely, voluntarily, and knowingly made and that he has had the advice of a “very competent” attorney with whom he is satisfied, Id. at 23. Petitioner fails to demonstrate otherwise.
In addition, while the PCR court did not make an explicit finding concerning prejudice for this claim [see ECF No. 18-1 at 124-25], the undersigned notes Petitioner offers no evidence he would have chosen to proceed to trial rather than plead guilty had Plea Counsel acquired an interpreter. This is especially true considering the Court's statement before imposing the negotiated 36-year sentence that “[t]his is a horrific, horrific case. This is one of the most violent homicides I have seen, and you need to be thankful to your lawyer, to Kesa's family, to the prosecution for the negotiated sentence. Were it left up to my discretion, I would give you more than this due to the extreme violent nature of the case.” Id. at 42. He has thus failed to show prejudice under the applicable standard. See Hill, 474 U.S. at 59 (“In other words, in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”).
For these reasons, Petitioner fails to show the PCR court's decision unreasonably applied clearly established federal law or was based on an unreasonable interpretation of the facts and the undersigned recommends granting Respondent's motion for summary judgment.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Respondent's motion for summary judgment be granted and the petition be dismissed with prejudice.
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
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).