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C/A No. 5:18-cv-1315-JMC-KDW (D.S.C. Oct. 31, 2018)

C/A No. 5:18-cv-1315-JMC-KDW


Bernard Dewberry, #278949, Petitioner, v. WardenWilliams, Respondent.


Bernard Dewberry ("Petitioner") is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 13, 14. On August 2, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 15. On August 29, 2018, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment, ECF No. 17. Respondent filed a Reply on September 5, 2018. ECF No. 20. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 14, be granted, and this Petition be dismissed without prejudice for failure to fully exhaust state remedies. I. Background

Petitioner filed this habeas corpus Petition challenging a guilty plea entered on August 24, 2016, in Spartanburg County, South Carolina. According to the documentation submitted to this Court by Respondent, and with which Petitioner agrees, Petitioner filed a direct appeal, which was dismissed by the South Carolina Court of Appeals, and his post-conviction relief ("PCR") application has been denied and dismissed by a judge in the Seventh Circuit Court of Common Pleas. See ECF Nos. 13-3, 13-4, 13-5, 13-8. However, his PCR appeal is still pending in the South Carolina Supreme Court. See ECF Nos. 13-9, 13-10, 17, 18-1, 18-2. Despite his Petition request that this Court vacate his conviction, in his Response to the Motion for Summary Judgment, Petitioner asks this Court to "set aside his habeas review in'till his appeal is done." ECF No. 17 at 1. II. Discussion

A. Petitioner's Federal Habeas Grounds

Petitioner raises the following issues in his Petition, quoted verbatim: Ground One: [Blank] Supporting Facts: On the mental health issue, the Applicant express that he's been dealing with it from the age of 15, and also by spending 474 day in the Spartenburg Law Enforcement Center, and being on medication during and after the crime, and also on Methamphetamine. Ground Two: Court did not allow applicant to present evidence of Applicant and victim's drug use at the time of offense Supporting Facts: Victim tried to attack the Applicant with a knife, when both the Applicant and victim was under the influence of methamphetamine Ground Three: There was also a plea deal before trial Supporting Facts: Had the Applicant known trial counsel was not going to present the toxicology report and the witnesses statements, he would have taken the original plea offer from the State. ECF No. 1 at 5, 7, 8.

B. Standard for Summary Judgment

The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

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 of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Breard v. Pruett, 134 F.3d 615, 618 (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, (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 411.

2. Procedural Bar

Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States[,]" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.

a. Exhaustion

Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:

(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.

In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal; or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by section 17-27-80 of the South Carolina Code, 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, 267 (S.C. 2007). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.

Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding "that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.") (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).

b. Procedural Bypass

Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.

The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains: [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case. Reed v. Ross, 468 U.S. 1, 10-11 (1984).

However, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with the state rule[,]" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 23, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).

If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).

3. Cause and Actual Prejudice

Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court 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 that 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, 931 (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

1. Petitioner's Failure to Exhaust

Respondent argues that the instant Petition should be dismissed without prejudice as Petitioner has failed to exhaust his state court remedies. ECF No. 13 at 5-6. Petitioner filed a notice of appeal on April 10, 2018. ECF No. 13-9. The South Carolina Commission on Indigent Defense, Division of Appellate Defense, requested the transcript from Petitioner's PCR hearing on April 26, 2018. ECF No. 13-10. According to Petitioner's Reply, as of September 5, 2018, Robert Dudek, Petitioner's PCR appellate counsel had not yet filed a petition for writ of certiorari on Petitioner's behalf. See ECF Nos. 18-1, 18-2.

In his Response, Petitioner agrees that he has not exhausted his state remedies. ECF No. 17 at 1. He requests that this Court "set aside his habeas review in'till his appeal is done." Id.

The undersigned agrees with Respondent that the appropriate course is to dismiss the Petition without prejudice. Because it is clear from the documents filed in this action that Petitioner has a viable state court remedy (appellate review of PCR), which he is currently pursuing, this Court should not keep this case on its docket while Petitioner is exhausting his state remedies. See Slayton v. Smith, 404 U.S. 53, 54 (1971) (indicating that a federal habeas court should not retain the case on its docket pending exhaustion of state court remedies, but, absent special circumstances, should dismiss the petition); Salama v. Virginia, 605 F.2d 1329, 1330 (4th Cir. 1979) (same).

2. Motion to Stay

Petitioner has not expressly asked this Court to stay this case. However, Respondent argues that, to the extent Petitioner's request that this Court "set aside" his current habeas petition can be interpreted as a request to stay this action, Petitioner has failed to meet his burden that a stay is appropriate. ECF No. 18 at n.1. Respondent cites Rhines v. Weber, 544 U.S. 269, 277 (2005), which indicates that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court."

"[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. Am. Water Works & Elec. Co., Inc., 299 U.S. 248, 254 (1936). In regards to habeas cases specifically, a district court has discretion to stay a mixed petition in order to allow a petitioner to return to state court to exhaust unexhausted claims. Rhines, 544 U.S. at 276-77 (2005). However, "[s]taying a federal habeas petition frustrates AEDPA's objective of encouraging finality . . . [and] undermines AEDPA's goal of streamlining federal habeas proceedings." Id. at 277. Thus, stay and abeyance is only appropriate when "the district court determines that there is good cause for the petitioner's failure to exhaust his claims first in state court," the unexhausted claims are not plainly meritless, and the petitioner demonstrates that he has not engaged in abusive litigation tactics or intentional delay. Id. at 277-78.

Petitioner has not demonstrated that a Rhines stay is appropriate in this case. Indeed, Petitioner's Response indicates that he misunderstood the tolling provisions of the AEDPA and did not realize that the statute of limitations would remain tolled until the completion of his PCR appeal. To the extent Petitioner asks this Court to stay this action when he asks the Court to "set aside" his Petition, the undersigned recommends denying that motion.

III. Conclusion and Recommendation

Wherefore, based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 14, be GRANTED and the Petition be DISMISSED without prejudice.

IT IS SO RECOMMENDED. October 31, 2018
Florence, South Carolina


Kaymani D. West

United States Magistrate Judge

The parties are directed to note the important information in the attached

"Notice of Right to File Objections to Report and Recommendation."