Opinion
C/A 1:22-1608-JD-SVH
03-15-2023
Georgia Woodberry, Petitioner, v. Warden of Graham Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Georgia Woodberry (“Petitioner”) is an inmate at the Graham Correctional Institution of the South Carolina Department of Corrections who filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. [ECF No. 1]. This matter comes before the court on Respondent's motion for summary judgment. [ECF No. 9]. Petitioner filed a response [ECF No. 14], and the time for Respondent's reply has passed. Thus, this motion is ripe for review.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Background
Petitioner was indicted in April 2013 by the Florence County Grand Jury for murder, two counts of attempted murder, discharging a firearm into a vehicle, and stalking (2013-GS-21-00411). [ECF No. 8-1 at 144-46]. In July 2013, Petitioner proceeded to a jury trial, but after the start of trial, she decided to plead guilty to the charges against her in front of the Honorable D. Craig Brown, Circuit Court Judge. [ECF No. 8-1 at 3 et seq. ]. Chief Public Defender Scott P. Floyd, Esq., represented Petitioner during the proceedings, and Solicitor Ed Clements, Esq., represented the State. During the guilty plea proceedings, the State presented the following summary of Petitioner's crimes:
[A]s far as the murder of Lori Pruett, . . . [s]he died from injuries sustained in [a] car wreck. The reason she was in the car wreck was because of the actions of Ms. Woodberry chasing [Carolyn] Gray's vehicle and shooting at the vehicle and chasing them all the way through a red light where they collided with Mrs. Lori Pruett. And Mrs. Pruett died as a result thereof and under [the] legal theory [of] transferred intent. Your Honor, we submit that it was murder of Mrs. Lori Pruett.
You've heard the facts also, Your Honor. You heard the 9-1-1 [call] as it actually was occurring, that Ms. Woodberry was shooting into the car. . . [of] Ms. Gray and [Jimmy] Askins where Ms. Woodberry [was] attempting to shoot both of them. She actually did shoot through the door and shot Ms. Gray in the leg. As you listen[ed] to the 9-1-1, you could hear them screaming and then the engine goes woon as they speed away to try to get away. She was attempting to kill them with a .45 caliber pistol. You heard about the .45 caliber pistol being bought by her about a month and a day before this occurred. You heard about it being found in her apartment and that it was her gun.
You have not heard from the SLED people [who could not] match the slug not exclusively because of the damage to the slug didn't permit a exclusive match to the .45, that it was owned by Ms. Woodberry. But it was determined that that .45 could have shot that projectile, but it was so damaged that it couldn't be exclusive to that one high point .45. It would have been the SLED expert testimony. The other SLED agent was here. [A s]cientist was going to talk about GSR and that there was a positive match for GSR on
Ms. Woodberry. Those were our three out of first four witnesses today. Today, our first witness would have been Corporal Andrew Clendenin that would have talked about the gathering of evidence and taking of the photographs. In relation to firing a weapon into the occupied vehicle, we believe that all those elements have been met.
Also, Your Honor, you've not heard testimony from the victims. We're going to talk about the stalking. [It had] gone on for several days. You did hear one 9-1-1 call or actually two that Ms. Woodberry was hanging around outside the apartment of Ms. Carolina Gray. Mr. Askins' truck being there and she brought it to and that happen[ed] on several occasions. Ms. Gray had to make several phone calls to law enforcement. They would come in Village Creek and my assumption is when they would come in Village Creek she'd leave out of the entrance to . . . Hickory Ridge or whatever the name of that apartment complex is where she come in and come across a little stretch of woods and that stalking was going on.
There had been bad blood between Ms. Gray and Ms. Woodberry for quite a long time. I had several incident reports and also recordings of harassing obscene telephone calls made to Ms. Gray and voice mails that were left to her by Ms. Woodberry. Mr. Askins had a child with her, but he didn't want to be involved any more. He felt very threatened by her and told me and parties testimony is going to be that he had told her it was just over and she was said it's not going to be over until she said it was over. And so she was stalking both of them. We feel like all those elements have been met, Your Honor.Id. at 17-20. In response to that factual summary, Petitioner disagreed with some of the reports from Askins, but she agreed the underlying facts were true. Id. at 20. Judge Brown accepted the guilty plea. Id. at 20-21. After hearing from the victims and from the defense, Judge Brown sentenced Petitioner to imprisonment for concurrent terms of 40 years for murder, 25 years for one count of attempted murder, 20 years for the other count of attempted murder, five years for discharging a firearm into a vehicle, and five years for stalking. Id. at 54.
Plea counsel filed a notice of appeal on Petitioner's behalf. Id. at 56. However, Petitioner's direct appeal was dismissed by the South Carolina Court of Appeals (“Court of Appeals”) when she failed to file a sufficient guilty plea explanation as required by Rule 203(d)(1)(B)(iv), SCACR. [ECF No. 8-1 at 60]. A remittitur was filed on October 8, 2013. Id. at 61.
Petitioner filed a post-conviction relief (“PCR”) application on November 11, 2013, in the Florence County Court of Common Pleas, alleging the following grounds: (a) ineffective assistance of counsel, based on allegations Plaintiff was intimidated into pleading guilty; (b) evidence was not presented; and (c) judge was prejudiced and biased, based on allegations that Petitioner had expressed dissatisfaction with plea counsel, but was not provided with new counsel. Id. at 64, 69.
A PCR hearing was held on August 9, 2016, before the Honorable William H. Seals, Jr., Circuit Court Judge. Id. at 77. Petitioner was represented by Tristan Shaffer, Esq., and the State was represented by Alicia Olive, Esq. Id. At the start of the hearing, PCR counsel orally amended the application, adding six additional claims of ineffective assistance of counsel. Id. at 81-82. The court heard testimony from Petitioner and plea counsel. See Id. at 78. The PCR court denied Petitioner's application in an order filed May 30, 2017. Id. at 127-43.
Petitioner appealed and, on March 21, 2018, Laura R. Baer, Esq., an Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a petition for writ of certiorari raising the following issue:
Whether the PCR Court erred in finding that plea counsel rendered effective assistance of counsel where he misadvised Petitioner regarding her criminal responsibility for the death of an unintended victim and where Petitioner testified that she would have continued with her trial and not pled guilty to murder had she been properly advised regarding the law applicable to her case.[ECF No. 8-3 at 3]. The matter was transferred to the Court of Appeals. Initially, certiorari was granted, but after argument, the Court of Appeals dismissed certiorari as improvidently granted. [ECF No. 8-4]. The remittitur issued on April 26, 2022. [ECF No. 8-5].
Petitioner filed this federal petition for writ of habeas corpus in May 2022. [ECF No. 1].
There is no prison mailroom stamp to indicate on what date Plaintiff delivered her habeas petition to the prison mailroom. Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to District Court).
II. Discussion
A. Federal Habeas Issues
In her petition, Petitioner identifies three grounds for habeas relief:
Ground One: Counsel failed to move to quash murder indictment & failed to advise Applicant that she couldn't be found guilty of murder from an automobile accident.
Supporting Facts: I was convicted on the “transferred intent” theory. I did not collide with the car. I backed off the car I was in pursuit of & they collided with another vehicle. A fatality resulted from the accident & I was charged with the murder of the driver of the third-party.
Ground Two: Counsel failed to advise applicant on S.C. law felony murder & that she can't be found guilty when she was not proximate cause of decedent's death.
Supporting Facts: The death of the victim was unintentional & the situation does not match any cases throughout S.C. regarding “felony murder” or transferred intent. There was no malice.
Ground Three: failed to argue that sentence for attempted murder of Jimmy Askins should be subject to 16-25-90.
Supporting Facts: I suffered from Domestic Violence at the hands of Jimmy Askins & the public defender did not use that as a defense or move to have that considered according to § 16-25-90. If this was properly mentioned the outcome of proceedings would have been different. (There was prior history of criminal domestic violence charges on Jimmy Askins in which I was a victim.)[ECF No. 1 at 5, 7, 8].
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 nonmoving 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 her petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), review of her claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
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 statecourt 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 her state court remedies. 28 U.S.C. § 2254(b)(1)(A). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 1727-10, et seq. S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007).Furthermore, strict time deadlines govern direct appeal and the filing of a PCR in the South Carolina courts. A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007, decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
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). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court “outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan.” 559 S.E.2d at 854. As such, it is an “extraordinary” remedy under O'Sullivan, “technically available to the litigant but not required to be exhausted,” Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals without more is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals.
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, she has procedurally bypassed her 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 she 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, she 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 three grounds for relief. According to Respondent, Petitioner has filed her habeas petition within the statute of limitations, and she has exhausted her remedies. However, Respondent argues that some of Petitioner's grounds for relief are procedurally barred in this action, and, additionally, they all lack merit. The undersigned addresses each ground below.
1. Ineffective Assistance of Counsel Standard
Generally, to prevail on an ineffective-assistance-of-counsel claim, a petitioner must show (1) that trial counsel's performance fell below an objective standard of reasonableness and (2) that a reasonable probability exists 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 court must apply a “strong presumption” that trial counsel's representation fell within the “wide range of reasonable professional assistance,” and the errors must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
In the specific context of a guilty plea, to satisfy the prejudice prong of Strickland, a prisoner must show that “there is a reasonable probability that, but for counsel's errors, [the prisoner] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
2. Preserved Issues in Grounds One and Two
In Ground One, Petitioner asserts plea counsel was ineffective for failing to quash the murder indictment and for failing to advise Petitioner that she could not be guilty of murder under the facts of her case. In Ground Two, Petitioner raises a tangential argument that plea counsel failed to properly advise her as to state law regarding felony murder and as to her potential liability based on a theory of transferred intent. Respondent counters Petitioner is not entitled to habeas relief.
a. How This Issue Was Raised in State Court
In her PCR appeal, Petitioner raised a single claim. She argued plea counsel had provided ineffective representation by misadvising her as to her criminal responsibility for Pruett's death, which included deficient advice as to the felony murder rule, the doctrine of transferred intent, and proximate cause. Petitioner has broken these issues into two separate grounds in her habeas petition, but the undersigned will consider them collectively here.
b. Trial and PCR Evidentiary Hearing
Petitioner pled guilty to murder, two counts of attempted murder, and stalking and discharging a firearm into a vehicle. [ECF No. 8-1 at 8-17]. During the plea colloquy, Petitioner affirmed she understood the constitutional rights she was giving up by pleading guilty, and she further indicated she was satisfied with plea counsel's representation. Id. When asked if anyone had “‘used any threats, force, pressure, or intimidation to get [her] to plead guilty[,]'” she responded, “‘No, sir.'” Id. at 16.
Plea counsel testified first at the PCR evidentiary hearing. He recalled that the facts of Petitioner's case were that she had “fired on the occupants of a moving vehicle and that that vehicle in turn collided with a third vehicle, and the death of the occupant of the third vehicle resulted from that collision.” Id. at 83. When asked about what strategies he had considered, plea counsel indicated that there was some evidence “that the accident occurred I guess far enough removed to take it from, you know, being the proximate cause of the death of the third party.” Id. at 85. However, plea counsel knew the State did not agree with that, and the victims would testify Petitioner was still within their view when the accident happened. Id. Plea counsel testified, based on Petitioner's version of the facts, there was an argument to be made “that enough time or space had elapsed where . . . she was no longer . . . the cause of it.” Id. at 86. He was unsuccessful in finding cases with a similar fact pattern, but he testified it “would just be a question of fact for the jury to decide.” Id. Plea counsel additionally testified he and Petitioner spoke about the felony murder rule, and he was concerned there would be problems with that rule since attempted murder was an inherently dangerous felony. Id. at 86-87. However, his plan for trial would have been to argue the lack of proximate cause made the felony murder rule inapplicable. Id. at 105.
Petitioner testified if plea counsel had told her the felony murder rule did not apply in her case, she would not have pled guilty and would have proceeded to trial. Id. at 106-07. She later testified her attorney had discussed the felony murder rule, and his advice was essentially what he testified to at the evidentiary hearing. Id. at 112-13.
At the conclusion of the PCR evidentiary hearing, both sides argued about the applicability of the felony murder rule under the facts of Petitioner's case. Id. at 113-25. The PCR court took the matter under advisement. Id. at 125.
c. Order of Dismissal
The PCR court found plea counsel properly advised Petitioner regarding both the elements of murder and her criminal liability for the death of the Pruett. Id. at 134. After summarizing the required elements of murder, the PCR court found as follows:
In the instant case, Applicant's conduct of driving at a high rate of speed on a public roadway while firing a deadly weapon not another moving vehicle demonstrated “a general malignant recklessness of the lives and safety of others” as well as “conduct which is so reckless and wanton as to indicate a depravity of mind and general disregard for human life.” It matters not that Pruett was not the intended victim or that she died by vehicle impact rather than bullet. “It is a well-settled principle of law that where a slayer designs or intends to kill one person but, through mistake, kills another, ‘his crime is the same as if he had executed his intended purpose.'” [State v] Heyward, [15 S.E.2d 669,] 672 [(S.C. 1941)] (citations omitted). “This result is sometimes described as being a function of the doctrine of ‘transferred intent' . . . . All that is required for murder is the mental state of malice, provided by the intent to kill a human being, coupled with an act which caused the death of a human being.” State v. Horne, 319 S.E.2d 703, 704 ([S.C.] 1984).Id. at 135-36. The PCR court additionally found Petitioner's testimony she would not have pled guilty but for plea counsel's alleged erroneous advice to be insufficient to establish prejudice in light of the circumstances surrounding the guilty plea. Id. at 136. In particular, Petitioner decided to plead guilty after her trial began and after hearing the 9-1-1 call from the victims in court. Id. Additionally, the PCR court noted Petitioner did not dispute the evidence against her as to attempted murder was overwhelming, and, had she proceeded to trial on those charges alone, she could have been sentenced up to sixty years if she was given consecutive sentences. Id.
As to the felony murder rule, the PCR court first noted South Carolina has not codified the felony murder doctrine. Id. The PCR court then found plea counsel advised Petitioner as to the elements of murder and what the State would have to prove, but he “did not specifically advise her concerning the felony-murder rule.” Id. at 137. However, the PCR court additionally found,
[E]ven if Counsel had advised Applicant that she could potentially be convicted under the felony-murder doctrine, Applicant has failed to show that advice was deficient. Regardless of the applicability of the felony murder doctrine, Counsel properly advised Applicant that under the circumstances of the case, she could be found guilty of murder if she proceeded to trial.Id. at 137. The PCR court found Petitioner's testimony she would not have proceeded to trial if plea counsel had not misadvised her to be not credible. Id.
The PCR court next considered the issue of proximate cause and found plea counsel had properly advised Petitioner regarding that issue. Id. at 13839. The PCR court noted plea counsel's testimony that there was conflicting evidence as to how far Petitioner was at the time the fatal collision occurred. Id. at 139. Accordingly, the PCR court concluded,
Applicant has made no showing that she did not proximately cause the death of Lori Pruett as a matter of law, and has failed to demonstrate that Counsel gave deficient advice concerning proximate cause. Given the evidence the State was prepared to present at trial, the issue of whether Applicant proximately caused the death of Applicant would have been a question of fact for the jury.Id. Again, the PCR court noted Petitioner had not shown deficiency either. Id. at 139.
Finally, the PCR court considered whether plea counsel properly advised Petitioner regarding her criminal liability where the victim died in an automobile accident. Id. at 140. The PCR court found as follows:
That Lori Pruett's death resulted from an automobile accident does not negate Applicant's criminal liability for murder. See State v Mouzon, 99 S.E.2d 672, 675-76 (1957) (holding evidence was sufficient to sustain a verdict of murder where death resulted from a vehicular accident because “[t]he conduct of the driver was such as to imperil human life[,]” regardless of “actual intent to kill or injure another, [where] there is evidence of such recklessness and wantonness as to indicate a depravity of mind and disregard for human life, from which a jury could infer malice.”).
Applicant's conduct consisted of driving at a high rate of speed on a public roadway while firing a deadly weapon on another moving vehicle. A vehicular accident occurred as a consequence of
Applicant's actions. Applicant admitted she chased and fired on Gray and Askins as they were driving. While fleeing from Applicant, Askins ran a red light and struck Pruett while she was driving through the intersection, fatally injuring her. This Court finds Counsel's advice to Applicant that she could be found guilty of murder if she proceeded to trial did not fall below an objective standard of reasonableness. See Palacio v State, 511 S.E.2d 62, 67 (1999) (finding no deficiency where “it would have been futile for Attorney to have made such arguments”).Id. The PCR court found there was no prejudice because Petitioner had failed to show “that this would have [been] a viable defense at trial.” Id.
d. Analysis
Petitioner asserts plea counsel should have advised her she could not be found guilty of murder based on the facts surrounding her crimes. [ECF No. 1 at 5, 7]. In particular, she argues his advice was deficient as to the applicability of transferred intent and the felony murder rule to the facts of her case and, further, as to whether she proximately caused the victim's death. Id. Respondent asserts Petitioner's arguments lack merit. [ECF No. 8 at 10-14].
Both Petitioner and Respondent focus on the underlying issue-whether plea counsel was ineffective for giving Petitioner the advice he did regarding her potential criminal responsibility. However, the § 2254 standard requires this Court to focus, not on whether plea counsel was ineffective, but on whether the PCR court's rejection of the ineffective-assistance-of-counsel claim was based on either unreasonable factual findings or an unreasonable application of federal law.
Having reviewed the record, the undersigned finds the PCR court's conclusion was not based on an unreasonable determination of the facts. The order of dismissal demonstrates the PCR court found plea counsel's testimony credible while finding Petitioner's testimony was not credible. [ECF No. 8-1 at 133-40]. Such credibility determinations are entitled to deference here. See Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.”); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal courts no license to redetermine the credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”). Petitioner has failed to submit clear and convincing evidence to rebut the PCR court's credibility findings or other factual findings. See 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”). Thus, Petitioner has failed to show the PCR court's decision was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(2).
Of note, the PCR court found plea counsel “did not specifically advise her concerning the felony-murder rule.” [ECF No. 8-1 at 137]. However, plea counsel testified he and Petitioner discussed the felony murder rule. Id. at 117. This discrepancy between the PCR court's findings and the record does not render the PCR court's factual determinations unreasonable, as plea counsel also showed hesitancy as to whether he and Petitioner discussed felony murder. Id. at 87 (“[W]e did talk about the-you know, I guess the felony murder rule.”); see also Wood v. Allen, 558 U.S. 290, 301 (2010) (“[A] statecourt factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”) Moreover, plea counsel believed Petitioner could be found guilty of murder without the felony murder rule, and the PCR court agreed and alternatively found even if plea counsel had advised Petitioner as to felony murder, there was no prejudice. Thus, the factual error by the PCR court is harmless.
The undersigned further finds the PCR court's determination is not contrary to, or an unreasonable application of, federal law. The order of dismissal cited and applied the principles in Lockhart in finding plea counsel was not ineffective. Petitioner has not identified how the PCR court's order unreasonably applied federal law. Instead, Petitioner's arguments are primarily grounded in state law. She contends under state law she could not have been guilty of murder. [ECF No. 14 at 1-3]. Petitioner made these same arguments in her PCR proceedings, and the state courts disagreed with her. “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 6768 (1991). Petitioner's reliance on state law does not meet her burden under § 2254 to show the PCR court's decision was either contrary to, or an unreasonable application of, clearly-established federal law, as determine by the Supreme Court.
For the foregoing reasons, Petitioner has failed to meet her burden under 28 U.S.C. § 2254, and the undersigned recommends Respondent's motion for summary judgment be granted as to the preserved claims for relief found in Grounds One and Two.
3. Procedurally-Barred Claims
Respondent argues the remainder of Petitioner's claims are barred. [ECF No. 17]. The undersigned agrees the additional claims Petitioner raised in her petition that were not properly raised to the state appellate court are procedurally barred and cannot be considered here. Those procedurally-barred claims include her Ground One claim that plea counsel was ineffective for failing to quash the murder indictment and the entirety of Ground Three, in which Petitioner asserts plea counsel should have argued her sentence for the attempted murder of Askins should have been adjusted due to a history of criminal domestic violence.
In an attempt to show cause and prejudice for her failure to raise these claims in her PCR appeal, Petitioner asserts PCR appellate counsel was ineffective. While ineffective assistance of collateral counsel can excuse procedural default in some limited circumstances, as set forth in Martinez v. Ryan, 566 U.S. 1 (2012), Martinez does not extend to PCR appellate counsel. Johnson v. Warden of Broad River Corr. Inst., No. 12-7270, 2013 WL 856731, at *1 (4th Cir. Mar. 8, 2013) (per curiam) (holding allegations of ineffective PCR appellate counsel do not fall under Martinez but instead “fall under the general . . . rule that ineffective assistance of postconviction counsel cannot constitute cause for procedural default”).
Petitioner further argues the failure to consider her claims will result in an extreme miscarriage of justice, as “[n]ot only do all the claims center on the general notion that Petitioner was wrongfully charged with the harshest charge possible, there were other charges that would have better sufficed the situation.” [ECF No. 18 at 4]. As explained by the Fourth Circuit, the fundamental miscarriage of justice “exception excuses a procedural default where ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.'” Sharpe v. Bell, 593 F.3d 372, 377 (4th Cir. 2010) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). In order to show a fundamental miscarriage of justice, “a petitioner presents ‘new reliable evidence' supporting a claim of actual innocence....” Id. Petitioner has not presented any such new reliable evidence. Her arguments are that she is legally innocent, but that is not sufficient here. Bousley v. United States, 523 U.S. 614, 623 (1998) (“‘[A]ctual innocence” means factual innocence, not mere legal insufficiency.”). Furthermore, her arguments rely upon an interpretation of state law that has already been rejected by the state courts. Accordingly, Petitioner has failed to demonstrate either cause and prejudice or a fundamental miscarriage of justice.
For all of the above reasons, Petitioner's remaining claims are procedurally barred. As such, the undersigned recommends Respondent's motion for summary judgment be granted as to the remaining grounds for relief.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Respondent's motion for summary judgment be granted [ECF No. 9] 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).