Opinion
C. A. 1:21-cv-01248-JMC-SVH
03-15-2022
David Adams, Petitioner, v. Samuel Wise, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge.
David Adams (“Petitioner”) is an inmate at the Lee Correctional Institution of the South Carolina Department of Corrections. Petitioner 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 14, 15]. Petitioner filed a response on November 22, 2021 [ECF No. 24], and Respondent filed a reply on November 29, 2021 [ECF No. 25].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted. I. Factual and Procedural Background
Petitioner was indicted by the Lexington County Grand Jury during the June 2014 term of court for criminal sexual conduct with a minor, second degree (2014-GS-32-1759). [ECF No. 14-3 at 134-35]. Robert Madsen, Esq., (“plea counsel”) represented Petitioner during his guilty plea on May 4, 2015, before the Honorable W. Jeffrey Young, Circuit Court Judge. [ECF No. 14-1 at 21 et seq.]. Judge Young sentenced Petitioner to 18 years' imprisonment. [ECF No. 14-1 at 137].
Petitioner filed a notice of appeal, but his appeal was dismissed on July 9, 2015, when he failed to provide a sufficient explanation as required by SCACR 203(d)(1)(B)(iv). [ECF No. 14-2].
On September 15, 2015, Petitioner filed a pro se application for post-conviction relief (“PCR”) [ECF No. 14-1 at 3-9] in which he asserted:
(a) Ineffective Assistance of Counsel pursuant to S.C. Code Ann. § 17-23-60 because counsel failed to conduct any meaningful pre-trial investigation;
(b) Denied Due Process of Law in violation of 4th Amendment because no search warrant or consent form was provided in DNA blood testing; and
(c) Denied Due Process of Law for a Brady violation because the State failed to provide the medical records of the victim in discovery.[ECF No. 14-1 at 5]. On December 11, 2017, Petitioner appeared for an evidentiary hearing before the Honorable J. Cordell Maddox, Jr., Circuit Court Judge (“PCR Court”). [ECF No. 14-1 at 18 et seq.]. During the hearing, Petitioner was represented by David K. Allen, Esq., (“PCR counsel”). [ECF No. 14-1 at 18]. Because there was no transcript from Petitioner's guilty plea, the PCR court began with a reconstruction hearing in which both plea counsel and the prosecutor testified. [ECF No. 14-1 at 21-59]. After finding the record to be adequately reconstructed such that the PCR court could consider Petitioner's PCR claims, the court proceeded with the PCR evidentiary hearing. [ECF No. 14-1 at 60-117]. Petitioner and plea counsel testified. [ECF No. 14-1 at 60-116]. In an order filed April 6, 2018, the PCR Court denied and dismissed Petitioner's application (“PCR Order”). [ECF No. 14-1 at 125-33].
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court Aheld that when a State suppresses evidence favorable to an accused that is material to guilt or to punishment, the State violates the defendant's right to due process, >irrespective of the good faith or bad faith of the prosecution.=@ Cone v. Bell, 129 S.Ct. 1769, 1772 (2009) (citing Brady).
Petitioner appealed and, on November 5, 2018, LaNelle Cantey DuRant, appellate defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a Johnson petition for writ of certiorari raising the following issue: “Did the PCR court err in failing to find plea counsel ineffective for not insuring that Petitioner Adam's guilty plea was entered voluntarily and knowingly because plea counsel failed to adequately investigate possible defenses.” [ECF No. 14-3 at 3]. DuRant certified the petition was without merit and requested to be relieved as counsel. Id. at 11. Petitioner filed a pro se brief on May 9, 2019. [ECF No. 14-4]. The South Carolina Supreme Court transferred the matter to the South Carolina Court of Appeals on May 9, 2019. [ECF No. 14-5]. The Court of Appeals denied the petition for writ of certiorari on August 13, 2020. [ECF No. 14-6]. The court also granted counsel's motion to be relieved as counsel. Id. Petitioner filed a pro se petition for rehearing on September 4, 2020. [ECF No. 14-7]. The petition for rehearing was denied on October 28, 2020. [ECF No. 14-8]. The remittitur issued on December 16, 2020, and was filed by the Lexington County Clerk of Court on December 23, 2020. [ECF No. 14-9]. II. Discussion
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (approving “the withdrawal of counsel in meritless post-conviction appeals, provided the procedures outlined in Anders v. California, 386 U.S. 738 (1967), were followed”).
A. Federal Habeas Issues
Petitioner raises the following grounds for relief:
Ground One:Involuntary Guilty Plea (violating the Due Process of Law Clause of the 14th Amendment of the U.S. Constitution).
Supporting Facts:
1) Petitioner did not knowingly, intelligently, and voluntarily waive his constitutional rights to the privilege against compulsory self-incrimination, to a trial by jury, and to confront his accuser;
2) Petitioner did not knowingly, intelligently, and voluntarily admit guilt to the charge of which he was sentenced for in indictment 2014-GS-3201759; and
3) Petitioner objected to charge in indictment # 2014-GS-3201759.
Ground Two:Ineffective Assistance of Counsel (violation of Petitioner's Rights to effective assistance of counsel by way of the 6th Amendment of the U.S. Constitution).
Supporting Facts:
1) Counsel failed to conduct any meaningful investigation into the results of the wrong name on the DNA results; and 2) Counsel failed to do an adequate investigation into the illegal search and seizure of Petitioner's DNA.
Ground Three: Denial and violation of Petitioner's 4th Amendment and 14th Amendment Rights under the U.S. Constitution.
Supporting Facts:
1) No. search warrant and/or consent form was provided for Petitioner's DNA; and 2) Petitioner was coerced by lawful authority to provide DNA.
Ground Four:Petitioner was denied Due Process of law by State's failure to provide Brady material (violating the Due Process of Law Clause under the 14th Amendment of the U.S. Constitution).
Supporting Facts:
1) State failed to provide medical records of victim; and
2) State failed to provide additional statements given by victim.[ECF No. 1 at 5, 7, 8, 10].
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), review of his 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 state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). 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 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 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, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of “cause, ” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
Petitioner alleges four grounds for relief. According to Respondent, Petitioner has exhausted his remedies, but only parts of Grounds One and Two are properly preserved for this Court's review. Nevertheless, Respondent argues Petitioner has not met his burden under § 2254 as to either ground. As to Ground Three, Respondent asserts it is not cognizable in this action. The undersigned addresses each ground below.
1. Ground One
In Ground One, Petitioner asserts his guilty plea was involuntary. In particular, he asserts (1) he did not knowingly, intelligently, and voluntarily waive his constitutional rights; (2) he did not knowingly, intelligently, and voluntarily admit guilt; and (3) he objected to the charge against him in the indictment.
On May 4, 2015, Petitioner pled guilty to second degree criminal sexual conduct with a minor. Because the court reporter's records of the plea were stolen, a reconstruction hearing was held prior to the PCR evidentiary hearing. [ECF No. 14-1 at 21-23]. Suzanne Mayes, a senior assistant solicitor, prosecuted Petitioner's case and testified first at the reconstruction hearing. [ECF No. 14-1 at 23-24]. Mayes testified she had been prepared to go to trial in Petitioner's case, but she learned the morning trial was set to begin that Petitioner wished to plead guilty. [ECF No. 14-1 at 24]. Mayes recalled it was an ordinary plea, but Judge Young was very thorough and “covered all of the crucial factors during the discussion of all aspects of [Petitioner's] rights, his waiver of those rights and then the presentation of the facts . . . .” [ECF No. 14-1 at 25]. Mayes recalled the following facts of Petitioner's crime:
This case involved a fifteen-year-old, who I believe she was fourteen when the-the timeframe of the indictment first began, and then would have turned fifteen at some point during that timeframe. I believe it covered from January through May, so roughly five months. But during the course of that timeframe, she became pregnant. Ultimately she gave birth to a child in October of 2012 and this case really centered around the paternity of that child. As a result of the criminal investigation, the Defendant submitted to a buccal swab, as well as a buccal swab from the infant and the female victim, and the results of that DNA analysis were 99.99 percent positive or confirmatory that he was, in fact, the father of this infant. So that's really the basis of the facts of the case and that's what would have been presented at the plea.[ECF No. 14-1 at 25-26]. Mayes testified the facts of the case were laid out in the indictment and were discussed during the course of the plea. [ECF No. 14-1 at 26]. Mayes testified that Petitioner admitted his guilt. [ECF No. 14-1 at 27]. She also testified Judge Young covered Petitioner's right to a jury trial, the right to confront his accuser, and the right to remain silent. [ECF No. 14-1 at 27]. According to Mayes, Petitioner waived those rights. [ECF No. 14-1 at 28]. During the guilty plea colloquy, Petitioner was asked if he was satisfied with counsel's representation, and he indicated he was. [ECF No. 14-1 at 29]. On cross-examination, Mayes testified she remembered the plea and “that it was ordinary and that he didn't waiver. He didn't seem to have any resistance.” [ECF No. 14-1 at 32]. Mayes testified she had a particular recollection of Petitioner's plea because it was not common in her cases to be prepared for trial and then have a guilty plea entered the morning the trial was to begin. [ECF No. 14-1 at 33].
Plea counsel agreed with Mayes's testimony about the guilty plea. [ECF No. 14-1 at 42]. He testified he was prepared to go to trial the day Petitioner informed him he wanted to plead guilty. [ECF No. 14-1 at 41]. Similar to Mayes, plea counsel testified Petitioner admitted his guilt at the plea hearing. [ECF No. 14-1 at 43]. He also recalled Judge Young asked Petitioner if he wanted to waive his right to a jury trial, his right to confront his accuser, and his right to remain silent. [ECF No. 14-1 at 43]. Petitioner waived those rights. [ECF No. 14-1 at 43]. Plea counsel also recalled Judge Young asked Petitioner if he had been coerced or had been offered anything in exchange for his plea, and Petitioner answered he had not. [ECF No. 14-1 at 43-44]. Plea counsel recalled the circumstances surrounding Petitioner's plea because it was only the second time he had a client tell him they wanted to plead guilty the morning of trial. [ECF No. 14-1 at 45]. According to plea counsel, the morning of trial, “I walked in and he said I want to plead guilty, I don't want to put everyone through this.” [ECF No. 14-1 at 45]. Petitioner did not voice any concerns about plea counsel's representation. [ECF No. 14-1 at 45]. Plea counsel described Petitioner's guilty plea as “basically a standard plea. The judge went over all the rights, my client agreed to those and then they did their part and we did our mitigation.” [ECF No. 14-1 at 47].
At the conclusion of reconstruction hearing, the State asked the PCR court to find the guilty plea transcript had been reconstructed, and PCR counsel opposed the motion. [ECF No. 14-1 at 56-57]. The PCR court found,
[R]econstruction of a transcript like this is hard . . . . It's important to me that the defense lawyer, who's been in front of me often and is very good and also very thorough, and the solicitor, who's also very good and thorough, both testified, and specifically it's important to me that the defense lawyer remembered this as unique because it was only the second time he'd ever had a trial to a plea in a day. I mean, I don't want to comment on anybody else's sentencing habits, but I know that there have been people who've come to me-when Judge Young and I were in the same building, he was usually out by one o'clock and I was there until five, and I say that half jokingly, but not completely, and I understand that because we all have our own reputations, but because of all of these unique markers I think that the transcript has been reconstructed enough for me as the judge on a PCR to determine whether or not any of the allegations of the PCR are correct.[ECF No. 14-1 at 58-59].
Petitioner did not testify during the reconstruction hearing, but during the PCR evidentiary hearing, he testified he did not admit to the facts set out in the indictment. [ECF No. 14-1 at 72]. According to Petitioner, “I tried to correct them. . ., but when I went to speak the judge told me I have to go through counsel.” [ECF No. 14-1 at 72-73]. Petitioner testified plea counsel did not correct the facts on his behalf. [ECF No. 14-1 at 73]. Petitioner further testified neither the trial judge nor plea counsel informed him by pleading guilty he was giving up his right to remain silent, his right to a jury trial, and his right to confront his accuser. [ECF No. 14-1 at 73]. Petitioner testified because of his lack of a record he believed he would go forward with an Alford plea and would get a lenient sentence and would go home with probation. [ECF No. 14-1 at 74].
In the order of dismissal, the PCR court found Petitioner's guilty plea was entered freely, voluntarily, and intelligently, based on the following reasoning:
Applicant claims his plea was given involuntarily because he did not know what rights he was waiving during the guilty plea hearing, and he only pled guilty because of the poor representation of plea counsel. This Court finds applicant's contention incredible and finds he failed to meet his burden of demonstrating his plea was anything other than valid and entered into freely and voluntarily. See Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985) (holding an applicant bears the burden of proving the claims in his application); see also
Boykin [v. Alabama], 395 U.S. [238, ] 242-44 [(1969)] (holding a guilty plea will be found knowing and voluntary if the record establishes the defendant had a full understanding of the consequences of his plea and the charges against him).
This Court specifically finds the reconstructed plea hearing belies applicant's claim. Both the solicitor and plea counsel credibly testified they recalled details of the plea colloquy because they worked to prepare for a trial up until the morning applicant chose to accept a plea offer rather than proceed with jury selection. This Court finds very credible counsels' testimony that the plea judge covered all of the crucial factors during the colloquy and applicant made a valid waiver of his rights. Each attorney testified they recalled applicant admitted his guilt following the State's recitation of the facts, and each further recalled the plea judge asked applicant if he wished to waive his right to a jury trial, his right to confront his accuser, and his right to remain silent, and applicant voluntarily waived those rights. Moreover, plea counsel acknowledged applicant was not promised anything for his plea, was not threatened, and was not under the influence of drugs or alcohol the day he pled guilty. The Court notes both counsels are experienced trial attorneys who would have stopped the guilty plea hearing and objected or corrected the record had there been any constitutional right not waived, error made, or concern about whether applicant understood the proceeding against him. This Court finds applicant understood the charge he faced, the maximum sentence he could receive, any collateral consequences, and applicant was fully informed of the nature and consequences of his plea as required.
The reconstructed record reflects applicant fully admitted his guilt to the plea court. “A guilty plea constitutes a waiver of nonjurisdictional defects and claims of violations of constitutional rights.” Jamison v. State, 410 S.C. 456, 467, 765 S.E.2d 123, 129 (2014) (citing State v. Rice, 401 S.C. 330, 331-32, 737 S.E.2d 485, 485-86 (2013)). Therefore, this Court finds the plea judge correctly found applicant's plea was freely, voluntary, and intelligently made. This allegation must be denied with prejudice.[ECF No. 14-1 at 128-29].
In his habeas petition, Petitioner reasserts his claim from the PCR action that he did not knowingly, voluntarily, and intelligently waive his rights to the privilege against self-incrimination, to a trial by jury, and to confront his accuser. However, as excerpted above, the PCR court found his claims incredible, while finding the testimony of plea counsel and of the prosecutor to be credible. The PCR court's 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.”). Although he submits that neither the prosecutor nor plea counsel were credible, Petitioner has failed to submit any 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).
Petitioner argues the reconstructed guilty plea record was inadequate because the trial judge, the court reporter, and Petitioner himself did not testify during the reconstruction hearing. [ECF No. 24 at 2-10]. He further asserts the reconstruction record was incomplete because it did not include an objection he raised during the guilty plea proceedings. [ECF No. 24 at 4- 6].
As to the adequacy of the reconstruction record, Petitioner relies upon State v. Ladson, 644 S.E.2d 271 (S.C. Ct. App. 2007), a case in which the South Carolina Court of Appeals found a trial record had not been reconstructed such that it permitted meaningful review by the appellate court. While South Carolina allows for reconstructed records when original transcripts are unavailable, “[a] new trial is . . . appropriate if the appellant establishes that ‘the incomplete nature of the transcript prevents the appellate court from conducting a “meaningful appellate review.”'” Ladson, 644 S.E.2d at 274 (quoting In re D.W., 615 S.E.2d 90, 94 (N.C. Ct. App. 2005)). In finding the reconstructed record in Ladson did not permit meaningful review, the Court of Appeals noted Ladson's trial lasted three days and there was a delay of over a year in the reconstruction hearing. Id. The court found the attempts to reconstruct the record insufficient, in part, due to the delay in the reconstruction hearing, explaining,
We are left with a few gratuitous references to generic motions and objections, but we do not know the context of the motions, the specific nature of the motions, and whether the challenged evidence was cumulative to the other unchallenged evidence. The list of unknowns continues. In short, we are left to speculate, and we decline to do so.Id.
Initially, Petitioner has not identified any law-either federal or state-that required the testimony of the plea judge, the court reporter, or Petitioner for his reconstruction hearing to be legitimate. Like Ladson, there was a significant delay between the date of Petitioner's plea and the reconstruction hearing. However, unlike Ladson, in Petitioner's case, the State only needed to reconstruct a guilty plea proceeding, which lasted less than thirty minutes, according to the prosecutor. [See ECF No. 14-1 at 38].
There were not a multitude of witnesses whose testimony needed to be reconstructed. There were not days' worth of motions and objections that needed to be reconstructed. The PCR court found reconstruction was difficult, but sufficient in this case, and the PCR court's findings are entitled to deference here. 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.”). Petitioner has failed to present clear and convincing evidence to rebut the PCR court's factual findings, nor has he identified case law that reconstruction hearings are unconstitutional generally or as performed in Petitioner's case. Petitioner has failed to show the PCR court's denial of his involuntary guilty plea claim-in particular, that his claim was involuntary because he did not knowingly, voluntarily, and intelligently waive certain constitutional rights- was based on either unreasonable factual findings or an unreasonable application of federal law as determined by the Supreme Court.
Petitioner's assertion that the reconstruction hearing was inadequate because there was no record of his objection to the indictment is similarly unavailing. The record reflects Petitioner was present for the reconstruction hearing, but chose not to testify. There was no objection to his failure to testify, nor was any reason given as to why he did not testify during the reconstruction hearing. [See ECF No. 14-1 at 56-59]. When Petitioner testified during the PCR evidentiary hearing, he indicated he had raised an objection to the facts of the indictment at the time of guilty plea colloquy, but he was told by the plea judge he would have to make his objection through counsel. [ECF No. 14-1 at 72-73]. According to Petitioner, plea counsel did not say anything to the plea court about correcting the facts. [ECF No. 14-1 at 73]. Plea counsel was not asked about that particular allegation. However, as noted by Respondent, South Carolina does not recognize hybrid representation. [ECF No. 14 at 28]. As a result, any objection raised by Petitioner was appropriately not considered by the plea judge. Ultimately, even if Petitioner were correct that he raised an objection that was never considered by the plea court, Petitioner fails to rebut the PCR court's factual findings, render the reconstruction record inadequate, or demonstrate his plea was involuntary.
In his response to the motion for summary judgment, Petitioner provides the following explanation of the objection he raised to the indictment:
Petitioner contends that the time frame was the reason for the objection. The indictment stated that on or about January 1, 2012 through May 18, 2012, thus giving the reason for the objection. During the time frame the indictment stated, which time is an element of the charge, Petitioner was incarcerated December 30, 2011 and did not get released until March 10, 2012. Again, Petitioner was arrested and “incarcerated” on April 15, 2012 and did not get released until May 26, 2012. The definition of the word “through” means “from beginning to end.” This is the reason why Petitioner made the objection.[ECF No. 24 at 11-12].
Under South Carolina law, an indictment gives notice to a defendant of the charges against him. See State v. Gentry, 610 S.E.2d 494, 499 n.6. That Petitioner was incarcerated for a portion of the time recited in indictment does not render the indictment itself insufficient, especially in this case where the criminal sexual conduct alleged led to the minor's pregnancy with Petitioner's DNA-identified child.
To the extent Petitioner asserts his guilty plea was involuntary because he did not admit guilt and objected to the indictment, his assertions are procedurally barred because they were not raised to and ruled upon by the PCR court. Further, Petitioner did not raise the PCR court's alleged failure to address these issues in a Rule 59(e) motion. To overcome the procedural default, Petitioner relies upon the alleged inadequacies of the reconstructed record. However, as explained above, he has failed to demonstrate that the reconstruction record was constitutionally or otherwise inadequate. As a result, he has also failed to show cause and prejudice for his procedurally-defaulted claims.
For the foregoing reasons, Petitioner has failed to meet his burden under 28 U.S.C. § 2254, and the undersigned recommends Respondent's motion for summary judgment be granted as to Ground One.
2. Ground Two
In Ground Two, Petitioner asserts plea counsel was ineffective for failing to adequately investigate the results of the DNA analysis and the search and seizure of his DNA.
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).
During the PCR evidentiary hearing, Petitioner testified to his belief that plea counsel had done an inadequate investigation. Petitioner testified the law enforcement officer who took his DNA did not have a search warrant, but lied to him and told him she did, and so he consented to the buccal swab. [ECF No. 14-1 at 63-64, 78-79]. According to Petitioner, he told plea counsel he had given his DNA under false pretenses. [ECF No. 14-1 at 79]. Petitioner further testified that one of his reasons for pleading guilty was his concern over plea counsel's representation. Specifically, Petitioner believed plea counsel failed to speak to all the witnesses Petitioner had asked him to. [ECF No. 14-1 at 67-69]. According to Petitioner, there was no DNA expert retained for his case, although he “[m]ost definitely” needed one. [ECF No. 14-1 at 69]. On cross-examination, when given the approved funding request for a DNA statistician, Petitioner stated he only spoke to plea counsel's paralegal about the issue, and she had told him the DNA expert was denied. [ECF No. 14-1 at 84-85]. Petitioner also testified the DNA results came back with a different last name than his, which was a “red flag” and led him to believe he was being held accountable for someone else's actions. [ECF No. 14-1 at 90].
Plea counsel testified that a paralegal investigator in his office attempted to contact the witnesses Petitioner had identified, but she had trouble getting them to call her back. [ECF No. 14-1 at 94]. Plea counsel also hired a private investigator to assist in the investigation. Id. Plea counsel also had an independent expert review the DNA results obtained by the State, but he advised Petitioner not to have the DNA retested because such information would have been available to the State, and plea counsel did not think it would be helpful. [ECF No. 14-1 at 95]. The DNA expert helped plea counsel prepare his questions for cross-examination. [ECF No. 14-1 at 95-96]. The issue about the last name being different on the results of the DNA testwas one plea counsel “certainly … would have been part of [his] cross-examination of the expert, ” and something he discussed with Petitioner, but he thought “the State would have explained that away as a scrivener's error . . . .” [ECF No. 14-1 at 96].
Plea counsel explained the issue as follows: “If you look at the SLED report, on the front part of the SLED report it indicates the samples of the individuals they had gotten it from but on the back side is a block and it says David [the victim's last name] instead of David Adams.” [ECF No. 14-1 at 96].
The PCR court considered Petitioner's ineffective-assistance-of-counsel claim, but ultimately rejected it. The PCR court summarized the testimony offered by Petitioner and plea counsel and then outlined the appropriate standard for considering the claims before explaining the court's reasons for denying the claim:
This Court finds plea counsel's testimony more credible than applicant's testimony. This Court finds counsel was thoroughly prepared to take applicant's case to trial as he was preparing the case and developing a defense strategy until the day applicant pled guilty. Counsel's testimony regarding his pre-trial work, including funding requests and interviews, indicates a thorough knowledge of the facts of applicant's case and an understanding of the State's evidence against applicant. To establish counsel was inadequately prepared, an applicant must present evidence of what counsel could have discovered or what other defense could have been pursued had counsel been more fully prepared. Jackson v. State, 329 S.C. 345, 354, 495 S.E.2d 768, 772 (1998). Applicant failed to produce any evidence at the PCR hearing to show what counsel should have, but did not investigate, and therefore cannot prove any resulting prejudice. Applicant cannot meet either prong of the Strickland test. Accordingly, this allegation is denied and dismissed.[ECF No. 14-1 at 131-32].
As discussed above, the PCR court's credibility determinations are entitled to deference here. Instead of presenting clear and convincing evidence to rebut the factual findings made by the PCR court, Petitioner reasserts the same arguments he made to the PCR court. He offers, “[t]he witnesses may have provided more information for 3rd party guilt” and “[t]he fact that a different name was on one part of the DNA report should have been a red flag to plea counsel to thoroughly investigate the DNA results, process, and procedures at the SLED laboratory to rule out a mistake.” [ECF No. 24 at 12-13]. However, such speculation does not rebut the PCR court's findings. Petitioner further asserts no search warrant or consent form was introduced at the PCR evidentiary hearing because no such document existed, but he does not offer any evidentiary support for his assertion. Although he testified as much at the PCR evidentiary hearing, his testimony was not deemed credible by the PCR court, and he has not presented any additional evidence to this court.
Petitioner has likewise failed to demonstrate the PCR court's decision was contrary to, or an unreasonable application of, federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1). He has not identified any case law to that effect. Furthermore, the PCR court cited to and applied Strickland v. Washington, 466 U.S. 668 (1984). To the extent the PCR court applied state law, Petitioner has not shown that the court's reasoning ran afoul of Supreme Court case law.
Of note, in his response to the motion for summary judgment, Petitioner raises new claims of ineffective assistance of counsel that were not raised in his initial petition. See, e.g., ECF No. 24 at 12 (“Petitioner contends that trial counsel was ineffective for not going over Petitioner's constitutional rights the morning of the plea hearing. Petitioner contends that trial counsel was ineffective when trial counsel overrode Petitioner's objection by conceding guilt.”). These arguments and issues are not properly before this Court because they were not raised in Petitioner's initial petition. See, e.g., Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir. 2007) (“To the extent [a party] seeks to expand its claims to assert new theories, it may not do so in response to summary judgment or on appeal.”); White v. Roche Biomedical Labs, Inc., 807 F.Supp. 1212, 1216 (D.S.C. 1992) (“[A] party is generally not permitted to raise a new claim in response to a motion for summary judgment . . . .”). Additionally, such arguments were not raised to and ruled upon by the PCR court; thus, they are procedurally defaulted, as well.
For the foregoing reasons, Petitioner has failed to meet his burden under 28 U.S.C. § 2254, and he is not entitled to habeas relief as to this ground. Accordingly, the undersigned recommends granting Respondent's motion for summary judgment as to Ground Two.
3. Ground
Three In Ground Three, Petitioner asserts a Fourth Amendment violation. He claims there was no search warrant for his DNA, and he was coerced by law enforcement to provide a buccal swab. This ground is not cognizable here as it is barred by Stone v. Powell, 428 U.S. 465, 494 (1976) (“[W]e conclude that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” (footnotes omitted)). As testified to at the reconstruction hearing, Petitioner was afforded the opportunity to go to trial and challenge the search and seizure that led to his DNA collection. However, he chose to plead guilty, thereby waiving the right to challenge the evidence against him and the manner in which the evidence was obtained. See State v. Rice, 737 S.E.2d 485, 485 (S.C. 2013) (“South Carolina does not recognize conditional guilty pleas. Rather, in South Carolina, a guilty plea constitutes a waiver of nonjurisdictional defects and claims of violations of constitutional rights.” (internal citations omitted)).
This is also consistent with federal law. See Blackledge v. Perry, 417 U.S. 21, 29-30 (1974) (“[W]hen a criminal defendant enters a guilty plea, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. Rather, a person complaining of such antecedent constitutional violations is limited . . . to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases.” (internal quotation marks and citations omitted)).
Because Petitioner's Ground Three is not cognizable, the undersigned recommends Respondent's motion for summary judgment be granted as to this ground.
4. Ground Four
In Petitioner's final ground, he contends the State committed a Brady violation by failing to provide the defense with the victim's medical records and statements. While Petitioner raised a Brady claim in his PCR application, it was not ruled upon by the PCR court and, thus, is procedurally defaulted here. See supra pp. 9-10. In his response, Petitioner indicates the PCR court erroneously found PCR counsel had informed the court Petitioner was only proceeding on grounds one and two of the PCR application. [ECF No. 24 at 24]. However, Petitioner did not file a Rule 59(e) motion to correct the PCR court's order, so this issue was not preserved for the PCR appeal. Additionally, if Petitioner's arguments could be construed as claims of ineffective-assistance-of-PCR-counsel, such arguments cannot overcome the procedural default because the underlying claim alleges a Brady violation, not an ineffective-assistance-of-trial-counsel claim. See Martinez v. Ryan, 566 U.S. at, 9 (2012) (“Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.”). As such, the undersigned recommends Respondent's motion for summary judgment be granted as to Ground Four.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Respondent's motion for summary judgment be granted and the petition be dismissed with prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).