Opinion
Civil Action No. 9:18-640-MGL-BM
10-31-2018
Braquette Wykina Walton, #353118, Petitioner, v. Warden, Graham Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
The pro se Petitioner brought this action seeking relief pursuant to Title 28, United States Code, Section 2254. On July 5, 2018, the Respondent filed a motion for summary judgment. As the Petitioner is proceeding pro se, a Roseboro Order was entered by the Court on July 6, 2018, advising Petitioner of the importance of a dispositive motion and of the need for her to file an adequate response. Petitioner was specifically advised that if she failed to file a properly supported response, the Respondent's motion may be granted, thereby ending her case.
However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro order, and receiving two extensions of time to respond, the Petitioner has failed to respond to the motion. Therefore, Petitioner meets all of the criteria for dismissal under Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982). Accordingly, this action should be dismissed with prejudice for lack of prosecution. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Rule 41(b), Fed.R.Civ.P.
She is personally responsible for proceeding in a dilatory fashion, the Respondent is suffering prejudice due to having to expend time and resources on a case in which the Petitioner is unresponsive, and no sanctions other than dismissal appear to exist as the Petitioner is indigent (and therefore not subject to monetary sanctions) and she has otherwise failed to respond to Court filings despite Court orders requiring her to do so. Lopez, 669 F.2d at 920.
Alternatively, if the Court determines that this Petition should not be dismissed for failure to prosecute, it should still be dismissed with prejudice on the merits, as is discussed more fully hereinbelow.
Procedural History
Petitioner was indicted in York County in February 2012 for murder [Indictment No. 2012-GS-46-865], exploitation of a vulnerable adult [Indictment No. 2012-GS-46-866], four counts of forgery and uttering [Indictment Nos. 2012-GS-46-868, -869, -870, and -871], and abuse or neglect of a vulnerable adult resulting in death [Indictment No. 2012-GS-16-883]. In August 2012, the grand jury indicted the Petitioner on four additional counts of forgery and uttering [Indictment Nos. 2012-GS-46-867, -3016, -3017, and -3018] and for burglary in the first degree [Indictment No. 2012-GS-46-3015]. Petitioner was represented on these charges by Phil Smith, Esquire, and Ashley Anderson, Esquire, and following a jury trial on October 29-November 1, 2012, was found guilty as charged. (R.pp. 1-991). Petitioner was then sentenced to life imprisonment for murder, thirty (30) years imprisonment for burglary, five (5) years imprisonment on each count of forgery and uttering, and five (5) years for exploitation of a vulnerable adult, all sentences to be served concurrently. (R.pp. 1002-1004). Additionally, on November 5, 2012, after having taken defense counsels' post-trial motion under advisement, the trial judge reconvened the sentencing hearing and sentenced Petitioner to thirty (30) years imprisonment for abuse or neglect of a vulnerable adult resulting in death, also to be served concurrently. (R.pp. 1005-1007).
Petitioner filed a timely appeal in which she was represented by Susan B. Hackett, Esquire, of the South Carolina Commission on Indigent Defense. Petitioner's counsel filed an Anders brief seeking to be relieved, and raising the following issue:
Anders v. California, 386 U.S. 738 (1967). Anders requires that appointed counsel who seeks to withdraw because no nonfrivolous issues exist for review must submit a brief referencing anything in the record that arguably could support an appeal; a copy of that brief must be furnished to the defendant; and after providing the defendant with an opportunity to respond, the reviewing court must conduct an independent and complete examination of the proceedings to determine if further review is merited. See Anders, 386 U.S. at 744.
The trial judge erred in failing to instruct the jury as to voluntary manslaughter, a lesser included offense of murder, because [Petitioner's] conduct was precipitated by the deceased angrily hitting [Petitioner] with a telephone and pulling [Petitioner's] hair, which provided evidence that [Petitioner] acted during the sudden heat of passion based upon sufficient legal provocation.See Court Docket No. 16-4, p. 4. Petitioner also filed a pro se Anders brief raising the following additional issues:
Ground One: DNA that was not tested and what was tested by SLED;See Court Docket No.16-5, p. 1 [Errors in Original].
Ground Two: The statement of Linda Roch stating she checked on [victim] and then denied that she did;
Ground Three: The fact that there was no handwriting expert to verify [victim's] handwriting only accepted [victim's] daughter to verify signature;
Ground Four: Evidence was collected a hand print and hair from telephone which was never run against anyone else;
Ground Five: The timeline of Nov. 12, 2011 from the nurses on call: Kayla Larson, [Teresa] Stagner, Linda Roach; and
Ground Six: The unsigned statement turned in by Det Stokes and Det Smith.
On November 5, 2014, the South Carolina Court of Appeals granted counsel's motion to be relieved and dismissed the appeal. State v. Walton, 2014-UP-377 (S.C.Ct.App. Nov. 5, 2014). See Court Docket No. 16-6. The Petitioner did not seek a rehearing or file for certiorari to the South Carolina Supreme Court, and the Court of Appeals thereafter issued the Remittitur to the York County Clerk of Court on November 21, 2014. See Court Docket No. 16-7.
On March 24, 2015, Petitioner filed an application for post-conviction relief ("APCR") in state circuit court. See Walton v. State of South Carolina, No. 2015-CP-46-889. (R.pp. 1045-1051). Petitioner listed the following issues in her Petition:
Ground One: Ineffective assistance of trial counsel.(R.p. 1048). Petitioner was represented in his APCR by Leah B. Moody, Esquire, and an evidentiary hearing was held on Petitioner's application on April 19, 2016. (R.pp. 1059-1113). The PCR court found that Petitioner pursued the following specific issues at the PCR hearing:
Ground Two: New Evidence.
Ground Three: Failure to grant a change of venue.
Ground One: Ineffective assistance of trial counsel(R.p. 1116). The PCR judge denied relief on the APCR in its entirety by written order filed July 13, 2016. (R.pp. 1114-1124).
a. Failure to research law.
b. Failure to submit or object jury charge.
c. Failure to develop and present defense.
d. Faliure to make proper motions.
e. Ineffective agreement.
Ground Two: Newly Discovered Evidence.
Ground Three: Failure to grant a change of venue.
Petitioner filed a timely appeal of the PCR court's order. Petitioner was represented on appeal by Appellate Defender Kathrine J. Hudgins of the South Carolina Commission on Indigent Defense, who filed a Johnson petition seeking to be relieved and raising the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1998); see also Anders v. California, supra.
Was trial counsel ineffective in failing to argue, pre-trial, that prosecuting Petitioner for both murder and abuse or neglect of a vulnerable adult resulting in death violates the Double Jeopardy Clause's protection against multiple punishments for the same offense?See Petition, p. 1 (Court Docket No. 16-8). Although Petitioner was advised of her right to file a pro se response to the Petition, Petitioner did not submit a pro se response. See Court Docket No. 16-9. On October 6, 2017, the Supreme Court of South Carolina denied the petition for writ of certiorari and granted counsel's withdrawal request. See Court Docket No. 16-9. See Walton v. Petitioner, v. State of South Carolina, Appellate Case No. 2016-001570, Order (S.C. Oct. 6, 2017) (Court Docket No. 16-10). The Remittitur was sent down on October 24, 2017. See Court Docket No. 16-11.
In her Petition for writ of habeas corpus filed in this United States District Court, Petitioner raises the following issues:
Ground One: Double Jeopardy Clause
Supporting Facts: Was sentence[d] for both murder and abuse or neglect of a vulnerable adult resulting in death violated the prohibition against double jeopardy.
Ground Two: Ineffective Counsel = The Sixth Amendment
Supporting Facts: Trial counsel was ineffective in failing to argue at pretrial that prosecuting Petitioner for both murder and abuse or neglect of a vulnerable adult resulting in death violated the prohibition against double jeopardy.See Petition, pp. 6, 8 [Errors in Original].
Discussion
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, while the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case; See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972); 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 Social Services, 901 F.2d 387 (4th Cir. 1990).
Here, after careful review of the record and the Petition, the evidence in the record, and the arguments set forth in Respondent's memorandum, the undersigned finds for the reasons discussed hereinbelow that the Respondent is entitled to summary judgment in this case.
I.
In Ground One of his Petition, Petitioner contends that she was subjected to double jeopardy because her sentence for both murder and abuse or neglect of a vulnerable adult resulting in death violated the prohibition against double jeopardy. Respondent argues that this issue must be dismissed because it was not properly preserved for review by this Court because it was not raised by Petitioner in her direct appeal. However, Petitioner's direct appeal was reviewed pursuant to an Anders review, and the South Carolina Supreme Court has held that:
. . . according to Anders, the reviewing court is obligated to make a full examination of the proceedings on its own. Anders. After such an examination, if the reviewing court agrees with the attorney, it may dismiss the appeal or proceed to a decision on the merits. Id. On the other hand, if the court disagrees with the attorney's analysis of the appeal, it must afford the defendant "the assistance of counsel to argue the appeal." Id. at 744. The purpose of filing a brief under Anders is to ensure the merits of the appeal are not overlooked. The court has to conclude independently, regardless of counsel's conclusion, whether or not the appeal has merit before it can dismiss the appeal.State v. McKennedy, 559 S.E.2d 850, 854-855 (S.C. 2002).
Accordingly, since Petitioner's counsel filed an Anders brief, the state appellate court had to look at the entire record to determine if there was any issue which had merit. See Rule 220(c), SCACR ["The appellate court may affirm any ruling, order, decision or judgment upon any ground(s) appearing in the Record on Appeal."]. The State Carolina Court of Appeals conducted a review of Petitioner's case pursuant to Anders to determine if there were any meritorious issues which had not been briefed and found none. See Court Docket No. 16-6; State v. Walton, Unpublished Op. 2014-UP-377 (S.C.Ct.App. Nov. 5, 2014).
The issue of the scope of an Anders review in South Carolina has also been raised and addressed in this District, as follows:
Petitioner contends that appellate counsel was ineffective for only filing an Anders brief on direct appeal. . . . As the magistrate [judge] correctly noted, when the South Carolina Court of Appeals denied Petitioner's appeal, the merits of the appeal were reached. To establish the necessary prejudice prong of an ineffective assistance of counsel claim, Petitioner would have to show that the South Carolina Court of Appeals would have found prejudicial error warranting reversal of his conviction and/or sentence if appellate counsel had not filed an Anders brief. See Tisdale v. State, 594 S.E.2d 166, 167 (S.C.2004).Washington v. Rushton, No. 05-2394, 2006 WL 2050582 at *2 (D.S.C. July 16, 2006).
Petitioner cannot show the required prejudice because the South Carolina Court of Appeals, which was obligated under Anders to conduct a full examination of the record on its own to determine whether a meritorious issue existed, denied the appeal. See State v. McKennedy, 559 S.E.2d 850, 854-55 (S.C.2002). The magistrate [judge] was correct in finding that because the merits of the appeal were reached, the Petitioner has not shown prejudice due to his appellate counsel filing an Anders brief. Therefore, this objection is without merit.
The record in this case reflects that at the end of the trial, defense counsel moved that a finding of death of vulnerable adult based on abuse and neglect was inconsistent with the finding on the murder charge, of which Petitioner was also found guilty. (R.pp. 991-992). The trial judge also expressed concern about whether someone could be charged with both murder and death by abuse and neglect. (R.p. 992). In response, the Solicitor cited to State v. Easler, 489 S.E.2d 617 (S.C. 1997), adopting the Blockburger test that two crimes are separate and distinct from one another when they each require at least one differentiating element. The Solicitor specifically addressed the motion as presenting a question concerning double jeopardy, and argued that the two charges possessed differing elements so as to exclude double jeopardy. (R.pp. 992-993). The trial judge then took the motion under advisement and reserved any sentencing on the death based on abuse and neglect of a vulnerable adult charge." (R.p. 993). Thereafter, the trial judge reconvened the sentencing hearing on November 5, 2012, and issued a ruling that the two convictions were not inconsistent. The judge stated,
Blockburger v. United States, 284 U.S. 299 (1932).
My concern was whether or not under the Blockburger test there could be successive sentencing. I did some research and I particularly read the case - a case of mine out of Cherokee County, the Easler case and based on that I think it is clear that [Petitioner] can be sentenced to both murder and death of a vulnerable adult based on
abuse and neglect. So I would sentence her this morning.(R.p. 1006). Petitioner was then sentenced to thirty (30) years imprisonment, concurrent, on the charge of abuse and neglect of a vulnerable adult resulting in death. (R.p. 1007).
Some courts in this district have reached the merits of claims in a similar posture, where the issues were preserved either at the trial court level or PCR level, but not presented at the appellate level in the Anders brief (or Johnson brief for a PCR issue) or in a pro se appellate brief. Cf. Nesmith v. Warden of Lee Corr. Inst., No. 17-1929-, 2018 WL 3079768, at *4 (D.S.C. May 11, 2018) [Finding claims were not procedurally barred because "all of the claims raised by Petitioner in his habeas petition were ruled on by the PCR court, the South Carolina Supreme Court reviewed those claims pursuant to the procedures outlined in Anders v. California."](citations omitted)]. In Williams v. Reynolds, the Court held,
[t]he undersigned disagrees with Respondent . . . the undersigned will treat Ground One-a claim that was preserved for review but not specifically argued in the briefs submitted pursuant to Anders-as exhausted. See Cobbs v. McCall, No. 09-528, 2010 WL 936782, at *2 (D.S.C. Mar. 16, 2010)["The Magistrate Judge determined that because Petitioner's appellate counsel filed an Anders brief which did not include these issues and Petitioner did not himself raise these claims in a pro se brief, these claims are procedurally barred from review by this court. However, it is unclear whether issues preserved at trial (or, for that matter, in Post-Conviction Relief (PCR) proceeding), but not raised in an Anders brief in South Carolina courts, are deemed to have been considered and dismissed on the merits by a South Carolina appellate court.... [A]s it appears this issue is unsettled, out of an abundance of caution, the court will review the merits of Petitioner's claims in this ground for relief."); Alonzo-Peterson v. Riley, No. 08-3967, 2010 WL 427746, at *5-6 (D.S.C. Feb. 3, 2010) (discussing claim that was addressed by PCR judge but not presented in the Johnson brief or a pro se brief on the merits, stating, "[I]n light of Petitioner's pro se status, and since there appears to be no clear controlling precedent on this issue, out of an abundance of caution the undersigned has discussed Petitioner's claims of ineffective assistance of counsel on the merits."); see also McHam [v. State,] 746 S.E.2d [41,] 46 [S.C. 2013)]("Under the Anders procedure, an appellate court is required to review
the entire record, including the complete trial transcript, for any preserved issues with potential merit." (citations omitted) (first and second emphasis added)), [abrogated on other grounds, Smalls v. State, 810 S.E.2d 836 (S.C. 2018)].Williams v. Reynolds, No. 16-2835, 2017 WL 2983923, at *5 (D.S.C. May 24, 2017)(emphasis in original), report and recommendation adopted, No. 16-2835, 2017 WL 2974160 (D.S.C. July 12, 2017), and report and recommendation adopted as modified on other grounds, No. 16-2835, 2017 WL 5467614 (D.S.C. Nov. 14, 2017). The undersigned agrees with this reasoning, and has therefore proceeded to discuss the merits of this claim.
The Double Jeopardy Clause forbids "successive prosecutions for the same offense as well as the imposition of cumulative punishments for the same offense in a single criminal trial." United States v. Shrader, 675 F.3d 300, 313 (4th Cir.2012) (internal quotation marks omitted). Under Blockburger v. United States, 284 U.S. 299 (1932), "successive prosecutions do not violate the Double Jeopardy Clause if each offense contains an element not contained in the other." United States v. Hall, 551 F.3d 257, 267 (4th Cir.2009) (internal quotation marks omitted).See United States v. Mescall, 624 F. App'x 103, 104 (4th Cir. 2015); see also State v. Jolly, 749 S.E.2d 114, 116-18 (S.C.Ct. App. 2013)["A defendant may be severally indicted and punished for separate offenses without being placed in double jeopardy where a single act consists of two distinct offenses."](quoting [State v. ]Brandt, 713 S.E.2d [591,] 597 (S.C. 2011)(internal quotation marks omitted)]; Matthews v. State 387 S.E.2d 258, 259 (S.C. 1990)[finding that to determine whether the legislature intended multiple punishments under different statutes when the intent is not otherwise clear from the face of the statute or its legislative history, the test is whether each statute requires proof of a fact that the other does not]; State v. Cuccia, 578 S.E.2d 45, 49 (S.C.Ct.App. 2003) [finding under traditional double jeopardy analysis, multiple punishments are not prohibited when each offense requires proof of a fact the other does not]; Easler, 489 S.E.2d at 622-623 [same].
With regard to the offenses at issue in this case, they each involve an element that is not present in the other offense. Murder is defined by statute as "the killing of any person with malice aforethought, either express or implied." See S.C. Code Ann. § 16-3-10. Conversely, S.C. Code Ann. § 16-3-1050(F) provides that, "[a] person who knowingly and wilfully abuses or neglects a vulnerable adult resulting in death is guilty of a felony and, upon conviction, must be imprisoned not more than thirty years." Accordingly, abuse and neglect of a vulnerable adult resulting in death does not require malice aforethought, but does require proof that the victim was a vulnerable adult under S.C. Code Ann. § 43-3-10(11) and that abuse or neglect occurred as set forth in S.C. Code Ann. § 43-35-10 (1), (6), and (8). Therefore, Petitioner was not subjected to double jeopardy when she was sentenced for these two separate offenses. Friend v. Beard, No. 13-840, 2014 WL 897331, at *9-10 (C.D. Cal. Mar. 4, 2014) ["If the sentences were imposed for "distinct crimes," there is "no violation of the federal prohibition against double jeopardy."], (quoting Rhoden v. Rowland, 10 F.3d 1457, 1462 (9th Cir.1993)[it is "well settled that a single transaction can give rise to distinctive offenses under separate statutes without violating the Double Jeopardy Clause"]).
Furthermore, even if the Court were to find that the two charges constitute the "same offense" under Blockburger, "the imposition of cumulative punishment does not violate the Double Jeopardy Clause as long as it does not contradict legislative intent." Friend, 2014 WL 897331, at *9-10 (quoting Clem v. Schriro, 363 F. App'x 436, 437 (9th Cir.2009) (citing Whalen v. United States, 445 U.S. 684, 692(1980)); Missouri v. Hunter, 459 U.S. 359, 366 (1983)).
This is because the Double Jeopardy Clause "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Hunter, 459 U.S. at 366. Accordingly, where the legislature intended to impose multiple punishments for two charges of the "same" offense, double jeopardy is not invoked. Hunter, 459 U.S. at 366; Clem, 363 F. App'x at 437-38 (no double jeopardy violation where state court imposed multiple consecutive sentences for single drunk driving incident; Arizona state law "does not prohibit consecutive sentences for single-act-multiple-victim crimes").
On federal habeas review, the Court is bound by a state court's interpretation of legislative intent. Downs v. Vare, 443 F. App'x 312, 313 (9th Cir.2011) ("As we are bound by the Nevada Supreme Court's determination that state law permitted conviction for both grand larceny and robbery within the context of a single trial, we conclude that that court's rejection of [defendant's] double jeopardy challenge was neither contrary to nor based upon an unreasonable application of clearly established federal law") (citing Hunter, 459 U.S. at 366-69 and 28 U.S.C. § 2254(d)(1)).Friend, 2014 WL 897331, at *9-10.
When Petitioner was sentenced, controlling law under Easler held that there was no double jeopardy where the defendant was prosecuted and sentenced for both reckless homicide (sentenced to 25 years) and felony DUI causing death (sentenced to 5 years concurrent) since the elements of the crime were different. See Easler, 489 S.E.2d at 125, 133. Accordingly, at the time of Petitioner's trial, the trial court's ruling and sentencing were in line with both federal and South Carolina law. See Blockburger, 284 U.S. 299 [ successive prosecutions do not violate the Double Jeopardy Clause if each offense contains an element not contained in the other]; Easler, 489 S.E.2d 623 ["[W]e decline to extend broader protection under our state constitution than that afforded under the federal constitution. Accordingly, we hold Blockburger is the only remaining test for determining a double jeopardy violation, in both multiple punishment and successive prosecution cases. Therefore, the only remaining inquiry in the present case is whether the offenses with which Easler is charged survive the Blockburger same elements test."], overruled by State v. Greene, 814 S.E.2d 496 (S.C. 2018), reh'g denied, (S.C. June 26, 2018).
Concededly, in the recent 2018 Greene decision, the South Carolina Supreme Court overruled Easler and held that a single defendant who has committed only one homicide can only receive one punishment. The Green ruling was based on an interpretation of legislative intent involving a state statute, with the court finding "no expression of legislative intent authorizing multiple homicide punishments for a single homicide committed by a single defendant" and "[a]s a result, absent legislative intent to the contrary", it would follow the prevailing rule -"one homicide is limited to one homicide punishment per defendant." See Greene, 814 S.E.2d at 505. In doing so, the Court specifically noted that it was overruling Easler "to the extent it authorizes multiple homicide punishments involving only one homicide." Id. at 507. However, even assuming Petitioner may have been sentenced differently today after Greene, Petitioner has not shown that the ruling in Greene applies retroactively to her case. See State v. Belcher, 685 S.E.2d 802, 811 (S.C. 2009) [retroative application of new precedent does not extend to matters challenged on post conviction relief]; see also Teague v. Lane, 489 U.S. 288 (1989); McDougall v. Dixon, 921 F.3d 518, 539 (4th Cir. 1990) [Not applying new rule retroactively on habeas review where new rule involved in validating sentencing regarding mitigating circumstances]. Therefore, this issue is without merit and should be dismissed.
Respondent also argues that the Petitioner cannot show any prejudice, since she was sentenced to life imprisonment for murder and given a concurrent thirty (30) year sentence for the conviction of abuse or neglect of a vulnerable adult resulting in death. However, the South Carolina Supreme Court has held that the fact that the second sentence is concurrent in this type of case "does not change the result. The concurrent sentence likely reflects the learned trial judge's inherent understanding that a consecutive sentence could not be imposed. Yet the conviction itself is considered a punishment and that, too, must be vacated." Greene, 814 S.E.2d at 507 (citing Ball v. United States, 470 U.S. 856, 864-854 (1985)["The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored . . . . Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment."]; see also Easler, 814 F.2d at 507 (same). Accordingly, this argument does not support an alternative basis for denying relief on this claim.
II.
In Ground Two, Petitioner contends that her trial counsel was ineffective for failing to argue pretrial that prosecuting Petitioner for both murder and abuse and neglect of a vulnerable adult resulting in death violated the prohibition against double jeopardy. Although Petitioner did attempt to raise this issue in her PCR appeal, she did not raise this issue in her PCR petition. Therefore, this claim is procedurally defaulted, and cannot be considered by this Court on habeas review.
Petitioner admits this in her Petition. See Court Docket No. 1, p. 5 [Ground One (b)].
Even so, as discussed above, despite trial counsel's failure to raise it, the trial court did sua sponte reach this issue and denied relief on it.
With regard to the procedural default, Petitioner admits that she did not properly present this claim in state court, as she did not raise this issue in her APCR. Even though Petitioner subsequently attempted to raise this issue in her PCR appeal, since she had not properly preserved it during her PCR proceedings, she could not raise it for the first time on appeal. See Cudd v. Ozmint, No. 08-2421, 2009 WL 3157305 at * 3 (D.S.C. Sept. 25, 2009)[Finding that where Petitioner attempted to raise an issue in his PCR appeal, the issue was procedurally barred where the PCR court had not ruled on the issue and Petitioner did not file a motion to alter or amend to request a ruling in regard to the issue]. Therefore, this claim was procedurally barred from consideration on appeal under South Carolina law. Moreover, since no evidence was presented on this issue in her PCR proceeding, it would not have been reviewed by the Appellate Court as part of its review of counsel's Johnson petition. See Court Docket No. 16-8. Cf. White v. Burtt, No. 06-906, 2007 WL 709001 at *1 & *8 (D.S.C. Mar. 5, 2007)(citing Pruitt v. State, 423 S.E.2d 127, 127-128 (S.C. 1992)[issue must be raised to and ruled on by the PCR judge in order to be preserved for review]); cf. Miller v. Padula, No. 07-3149, 2008 WL 1826495 at **1-2 & **9-10 (D.S.C. Apr. 23, 2008).
Because Petitioner did not properly raise and preserve this issue in her APCR and state court proceedings, it is barred from further state collateral review; Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 562 n. 3 (1971); Wicker v. State, 425 S.E.2d 25 (S.C. 1992); Ingram v. State of S.C., No. 97-7557, 1998 WL 726757 at **1 (4th Cir. Oct. 16, 1998); Josey v. Rushton, No. 00-547, 2001 WL 34085199 at * 2 (D.S.C. March 15, 2001); Aice v. State, 409 S.E.2d 392, 393 (S.C. 1991)[post-conviction relief]; and as there are no current state remedies for Petitioner to pursue this issue, it is fully exhausted. Coleman v. Thompson, 501 U.S. 722, 735, n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-298 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996) ["A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally defaulted under state law if the petitioner attempted to raise it at this juncture."], cert. denied, 117 S.Ct. 854 (1997); Aice, 409 S.E.2d at 393; Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) ["To satisfy the exhaustion requirement, a habeas Petitioner must fairly present his claim[s] to the state's highest court . . . the exhaustion requirement for claims not fairly presented to the state's highest court is technically met when exhaustion is unconditionally waived by the state...or when a state procedural rule would bar consideration if the claim[s] [were] later presented to the state court."], cert. denied, 522 U.S. 833 (1997); Ingram, 1998 WL 726757 at **1.
However, even though otherwise exhausted, because this issue was not properly pursued and exhausted by the Petitioner in the state courts through the final level of state court review, federal habeas review of this claim is now precluded absent a showing of cause and prejudice, or actual innocence. Martinez v. Ryan, 565 U.S. 1, 9-10 (2012); Wainwright v. Sykes, 433 U.S. 72 (1977); Waye v. Murray, 884 F.2d 765, 766 (4th Cir. 1989), cert. denied, 492 U.S. 936 (1989).
In all cases in which a State prisoner has defaulted his Federal claims in State court pursuant to an independent and adequate State procedural rule, Federal Habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of Federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman, 501 U.S. at 750. Considering Petitioner's pro se pleading liberally, it is arguable that Petitioner is asserting "cause" for her default when she states in her brief that she did not raise this claim in her PCR proceeding because her PCR counsel failed to raise it. The United States Supreme Court has held that "if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State . . . Ineffective assistance of counsel, then, is cause for procedural default." Murray, 477 U.S. at 488; see also Coleman v. Thompson, supra; McCleskey v. Zant, 499 U.S. 467, 494 (1991); Noble v. Barnett, 24 F.3d 582, 586, n.4 (4th Cir. 1994)["[C]onstitutionally ineffective assistance of counsel is cause per se in the procedural default context"]; Smith v. Dixon, 14 F.3d 956, 973 (4th Cir. 1994)(en banc).
However, Petitioner's Sixth Amendment right to counsel does not afford her relief on this claim, because while ineffective assistance of counsel can constitute "cause" for a procedural default, it will only constitute "cause" if it amounts to an independent violation. Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996). Ineffective assistance of PCR counsel (as opposed to trial or direct appeal counsel) does not amount to an independent constitutional violation, and therefore would not ordinarily constitute "cause" for a procedural default. Murray v. Giarratano, 492 U.S. 1-7, 13 (1989) [O'Connor, J., concurring] [ "[T]here is nothing in the Constitution or the precedents of [the Supreme] Court that requires a State provide counsel in postconviction proceedings. A postconviction proceeding is not part of the criminal process itself, but is instead a civil action designed to overturn a presumptively valid criminal judgment. Nothing in the Constitution requires the State to provide such proceedings,...nor does...the Constitution require [ ] the States to follow any particular federal model in those proceedings."]; Mackall v. Angelone, 131 F.3d 442, 447-449 (4th Cir. 1997); Ortiz, 149 F.3d at 932; Pollard v. Delo, 28 F.3d 887, 888 (8th Cir. 1994); Lamp v. State of Iowa, 122 F.3d 1100, 1104-1105 (8th Cir. 1997); Parkhurst v. Shillinger, 128 F.3d 1366, 1371 (10th Cir. 1997); Williams v. Chrans, 945 F.2d 926, 932 (7th Cir. 1992); Gilliam v. Simms, No. 97-14, 1998 WL 17041 at *6 (4th Cir. Jan. 13, 1998).
In Martinez the Supreme Court did carve out a "narrow exception" that modified
"the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." Martinez, 566 U.S. at 9. [F]or three reasons. First, the "right to the effective assistance of counsel at trial is a bedrock principle in our justice system . . . . Indeed, the right to counsel is the foundation for our adversary system." Id. at 12.
Second, ineffective assistance of counsel on direct appellate review could amount to "cause", excusing a defendant's failure to raise (and thus procedurally defaulting) a constitutional claim. Id. at 19. But States often have good reasons for initially reviewing claims of ineffective assistance of trial counsel during state collateral proceedings rather than on direct appellate review. Id. at 11-12. That is because review of such a claim normally requires a different attorney, because it often "depend[s] on evidence outside the trial record," and because efforts to expand the record on direct appeal may run afoul of "[a]bbreviated deadlines," depriving the new attorney of "adequate time . . . to investigate the ineffective-assistance claim." Id. at 13.
Third, where the State consequently channels initial review of this constitutional claim to collateral proceedings, a lawyer's failure to raise an ineffective assistance of counsel claim during initial-review collateral proceedings, could (were Coleman read broadly) deprive a defendant of any review of that claim at all. Martinez, supra at 9-
10.Trevino v. Thaler, 133 S.Ct. 1911, 1917-1918 (2013); see also Gray v. Pearson, 526 Fed. Appx. 331, 333 (4th Cir. June 7, 2013)["The Supreme Court had previously held in Coleman that because a habeas petitioner has no constitutional right to counsel in state post-conviction proceedings, the ineffectiveness of post-conviction counsel cannot establish 'cause' to excuse a procedural default. Coleman, 501 U.S. at 757. The Court established an exception to that rule in Martinez."] Therefore, because, under South Carolina law, a claim of ineffective assistance of trial or appellate counsel is raised in an APCR; cf. State v. Felder, 351 S.E.2d 852 (S.C. 1986); Bryant v. Reynolds, No. 12-1731, 2013 WL 4511242, at * 19 (D.S.C. Aug. 23, 2013); Gray, 526 Fed. Appx. 333; a petitioner's claim of ineffective assistance of PCR counsel as "cause"for her default may be considered under the revised standard of Martinez and Trevino. Even so, under the first requirement of the Martinez exception, the Petitioner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the [petitioner] must demonstrate that the claim has some merit." Gray, 526 Fed. Appx. at 333. Petitioner has failed to meet this requirement.
We consequently 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." Martinez, supra at 13-18.
Where allegations of ineffective assistance of counsel are made, the question becomes "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 694 (1984). In Strickland, the Supreme Court articulated a two prong test to use in determining whether counsel was constitutionally ineffective. First, the Petitioner must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel's performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment. Second, the Petitioner must show that counsel's deficient performance prejudiced the defense such that the Petitioner was deprived of a fair trial. In order to show prejudice a Defendant must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir.1996). However, Petitioner has failed to meet her burden of showing that her counsel was ineffective under this standard; Smith v. North Carolina, 528 F.2d 807, 809 (4th Cir. 1975)[Petitioner bears the burden of proving his allegations when seeking a writ of habeas corpus]; because even assuming arguendo that trial counsel should have independently raised this issue, the issue was nonetheless raised and considered by the trial judge and would have been considered to have no merit by the appellate court under their Anders' review. Therefore, even assuming arguendo that counsel's performance was deficient, Petitioner has failed to show the necessary prejudice under Strickland. Accordingly, Petitioner has failed to establish that Ground Two is a substantial one in order to be able to proceed on that claim. Gray, 526 Fed. Appx. at 333. Therefore, Petitioner has failed to show cause for his procedural default on this issue. Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990), cert. denied, 498 U.S. 1035 (1991) ["Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court."].
Finally, cognizable claims of "actual innocence" are extremely rare and must be based on "factual innocence not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); see also Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004). In this case, Petitioner does not present any evidence or real argument that she is factually innocent. Accordingly, Petitioner has failed to present any new, reliable evidence of any type that was not presented in any of her prior court proceedings which supports her innocence on the criminal charges on which she was found guilty. See Schlup v. Delo, 513 U.S. 298, 324 (1995)[to present a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial."]; Doe, 391 F.3d at 161 (quoting Schlup for the evidentiary standard required for a court to consider an actual innocence claim). Further, Petitioner has also failed to make any showing that a fundamental miscarriage of justice will occur if this claim is not considered. Wainwright v. Sykes, supra; Murray v. Carrier, 477 U.S. 478 (1986); Rodriguez, 906 F.2d at 1159 [a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"](citing Murray v. Carrier, 477 U.S. at 496); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F.Supp. 876, 881 (S.D.Fla. 1995).
Therefore, Ground Two in this habeas petition is procedurally barred from consideration by this Court, and should be dismissed.
Conclusion
Based on the foregoing, it is recommended that the Respondent's motion for summary judgment be granted, and that the Petition be dismissed, with prejudice.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge October 31, 2018
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).