Opinion
C. A. 5:20-4476-SAL-KDW
02-06-2023
Lashawn Brannon, Petitioner, v. Warden of Lee Correction, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Lashawn Brannon (“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. 39, 40. On July 5, 2022, 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. 41. Petitioner failed to respond. The court issued an order on August 26, 2022, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to Respondent's Motion by September 26, 2022. ECF No. 44. On September 26, 2022, Petitioner filed a Response in Opposition to Respondent's Motion. ECF No. 46. On November 14, 2022, the court issued an order directing Respondent to provide the court with an update on the status of the Petitioner's PCR application pending in the state court. ECF No. 48. Respondent filed a status report with the court on November 28, 2022. ECF No. 50. On January 27, 2023, the court issued another order requesting an update on the status of Petitioner's PCR application. ECF No. 51. Respondent filed a status report with the court on February 3, 2023. ECF No. 53.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 40, be granted, and this Petition be dismissed without prejudice.
I. Background
Petitioner is currently incarcerated in the Lee Correctional Institution of the South Carolina Department of Corrections. Petitioner was indicted by the Union County grand jury during the April 2012 term of court for murder. ECF No. 39-8. On August 20, 2013, Petitioner appeared before Judge John C. Hayes, III, for a plea hearing. ECF No. 39-1 at 1-22. Petitioner was represented by Assistant Public Defenders Erik Delaney and Melissa Inzerillo, and the State was represented by Deputy Solicitor Willy Thompson. Id. At the start of the hearing, Solicitor Thompson notified the court that Petitioner, who was indicted for murder, was entering a negotiated guilty plea to attempted murder with a recommended sentencing range of no less than 15 years and no more than 30 years. Id. at 4. Solicitor Thompson also informed the court that as part of the plea agreement the State was dismissing the homicide by child abuse charge and the willfully injuring a courthouse or jail charge. Id. Solicitor Thompson notified the court that Petitioner had been seen by both the Department of Disabilities and Special Needs and the Department of Mental Health and was found competent to stand trial. Id. at 4-5. Solicitor Thompson asked the court to conduct a Blair hearingregarding Petitioner's competency. Id. at 5. The court reviewed the reports prepared by the Department of Disabilities and Special Needs and Department of Mental Health. Id. at 5-7. The court also considered argument by Attorney Delaney who indicated Petitioner understood his charges, the evidence against him, his possible defenses, and the plea negotiations, and concluded Petitioner was competent. Id. at 6. The court determined Petitioner was competent to go forward with entering a plea. Id. at 6-8. The court reviewed the purported plea under the Alford doctrine with Petitioner and determined Petitioner understood he was entering an Alford plea to attempted murder. Id. at 8-9. The court also reviewed the facts supporting the indictment and the maximum sentence to which Petitioner would be exposed and Petitioner indicated he understood the information presented by the court. Id. at 910. Petitioner's counsel informed the court that he also went over with Petitioner the information reviewed by the court and counsel stated he believed Petitioner understood it. Id. at 10. In response to questioning by the court, Petitioner stated no one promised him anything or threatened him to get him to plead guilty, he was not under the influence of any intoxicating substances, and he was entering his plea freely and voluntarily. Id. at 10-11. Petitioner stated he understood he had a right to a jury trial; he understood the State would bear the burden of proving his guilt; he understood he had the right to remain silent, the right to confront witnesses, and the right to present his own witnesses; and he understood he was giving up those rights and any defense he might have to the charges. Id. at 11. Petitioner stated that, knowing all those things, he was entering a plea under the Alford doctrine which he understood was treated as a guilty plea. Id. at 12. According to the facts presented by the solicitor, Petitioner and his aunt were babysitting a nine-month-old child (“Victim”) on December 13, 2011. Id. at 12-13. Victim's mother came to pick her up at 7 a.m. the next day, December 14, and Victim was awake and interacting with her mother. Id. at 13. Petitioner suggested to Victim's mother that he take care of the baby that morning so Victim could get some rest prior to her meeting at work, and then Victim's mother could come back and pick up Victim. Id. Victim's mother agreed and went home to get some rest. Id. at 13-14. Petitioner began calling Victim's mother at 3 p.m. asking her when she was coming back, and Victim's mother told him she would be back soon. Id. at 14. Victim then called his aunt and told her Victim was sleeping and would not wake up, and his aunt told Petitioner to call Victim's mother again. Id. Petitioner called Victim's mother and told her Victim would not wake up, and she told Petitioner to call 911. Id. Victim's mother and Petitioner's aunt returned to the house and took Victim to the emergency room. Id. The ER doctor observed Victim had facial injuries and significant head injuries and a CAT scan revealed Victim had devastating brain injuries. Id. at 14-15. Victim was life-flighted to Greenville Memorial Hospital, and she was pronounced dead on December 16, 2011. Id. at 15. Petitioner was interviewed by the police concerning the injuries to Victim, and Petitioner gave several versions of facts in an attempt to explain Victim's injuries. Id. at 15-16. Physicians who examined Victim concluded that her injuries resulted from extreme acts of violence that were abuse. Id. at 16-18.
See South Carolina v. Blair, 273 S.E.2d 536 (S.C. 1981).
See North Carolina v. Alford, 400 U.S. 25 (1970).
Following the recitation of facts, Petitioner agreed that if he went to trial that the State would present the recited facts to the jury. Id. at 18. The court accepted Petitioner's plea, finding it was voluntarily, knowingly, and intelligently entered, and the recited facts supported the plea. Id. at 19. Sentencing was deferred to a later date. Id. at 20.
On November 13, 2013, Petitioner appeared before Judge Michael Nettles for a sentencing hearing. ECF No. 39-2 at 1-49. Petitioner was represented by Assistant Public Defenders Erik Delaney and Melissa Inzerillo, and the State was represented by Assistant Solicitor John Anthony. Id. The court reviewed the transcript of Petitioner's plea hearing, and Assistant Solicitor Anthony briefly explained the plea negotiations and Petitioner's decision to enter a plea to attempted murder. Id. at 5-6. The State then gave the court a factual overview of the case and informed the court there were members of Victim's family who would like to address the court. Id. at 7-11. Victim's family made statements to the court and asked the court to sentence Petitioner to the maximum sentence. Id. at 11-13. The State reviewed Petitioner's criminal record and made additional arguments to the court asking the court to impose the maximum sentence. Id. at 14-19. Petitioner presented arguments and mitigating evidence in support of his request for a lesser sentence, including testimony from Dr. Jason, a Wake Forest University professor in the Department of Pathology, Petitioner's family members, and Petitioner. Id. at 19-40. In response, the State read to the court the conclusion from Petitioner's intellectual functioning evaluation. Id. at 40-42. The State also presented additional medical evidence which concluded that the trauma to Victim was not accidental. Id. at 42-45. Judge Nettles considered the evidence and arguments presented and found the evidence of Petitioner's guilt was overwhelming although there was conflicting testimony as to the cause of Victim's injuries. Id. at 45-47. Judge Nettles also took under consideration Petitioner's low intellect and the stress Petitioner experienced on that day from taking care of numerous children, including Victim. Id. at 45-47. Judge Nettles sentenced Petitioner to 25-years imprisonment. Id. at 48. Petitioner did not file a direct appeal. ECF No. 1 at 2.
II. Procedural History
Petitioner filed an application for Post-Conviction Relief (“PCR”) on August 4, 2014. ECF No. 39-3. Petitioner asserted he was being held in custody unlawfully due to ineffective assistance of counsel. Id. at 3. The State filed a return on or about April 2, 2015. ECF No. 39-4. A motion hearing convened on January 20, 2016, before Judge Paul M. Burch. ECF No. 39-5. Petitioner was present and represented by Attorney Leah B. Moody, and Assistant Attorney General Justin Hunter appeared on behalf of the State. See id. Petitioner and his plea attorney Erik Delaney testified. Id. On January 26, 2016, the court entered an order holding the PCR application open to allow testimony from Petitioner's plea counsel, Attorney Melissa Inzerillo. ECF No. 39-6. On November 9, 2018, a hearing was held before Judge Alex Kinlaw, Jr., where testimony was taken from Petitioner's attorney Melissa Inzerillo. ECF No. 39-7. Petitioner filed his habeas petition on December 28, 2020. ECF No. 1.
III. Discussion
A. Federal Habeas Issues
Petitioner raises the following issue in his Federal Petition for a Writ of Habeas Corpus, quoted verbatim:
Ground One: Ineffective Assistance of Counsel
Supporting Facts: Counsel was ineffective when he failed to investigate case and prepare a defense. When counsel did not addrese or inform Petitioner state was required to prove specific intent to kill and that absent such proof
ECF No. 1 at 5 (errors in original).
IV. Analysis
Respondent moves to dismiss the Petition arguing Petitioner has not met the basic exhaustion requirement. ECF No. 39 at 7. Respondent states Petitioner did not complete his PCR application and still has state remedies available. Id. at 8-9. Respondent contends Petitioner has failed to show the state process is inadequate to protect his rights. Id. at 9. Respondent alleges the state court allowed for the development of the PCR record before closing the record, and Petitioner's PCR matter is ripe for determination. Id. Respondent also claims Petitioner has not shown he has complained to the state court about the delay. Id. Respondent contends Petitioner's unexhausted claims could be denied on the merits without requiring a return to state court. Id. at 10. In the alternative, Respondent asks that Petitioner's request for relief be denied on the merits. Id. at 10-12.
In response, Petitioner contends Respondent fails to address why Petitioner's PCR application has been pending for six years. ECF No. 46 at 1. Petitioner argues he is entitled to habeas relief because Respondent controls the docket, there is no evidence of Petitioner requesting an extension of time, and all delays are attributable to Respondent. Id.
Generally, a prerequisite to federal habeas review is exhaustion of claims in state court. 28 U.S.C. § 2254(b). To satisfy this requirement, a petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the [s]tate's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The exhaustion requirement is satisfied when the highest court in the state has been given a full and fair opportunity to rule on the petitioner's claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). However, “[s]tate remedies may be rendered ineffective by inordinate delay or inaction in state proceedings.” Ward v. Freeman, 46 F.3d 1129, at *1 (4th Cir. 1995). In determining whether a delay in deciding a state post-conviction action excused a failure to exhaust state court remedies, the Ward court considered the following factors: “(1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant,” and found a 15-year delay in petitioner's state court appeal rendered his state remedies ineffective. Id.
Considering the first factor in Ward, the undersigned finds that although a motion hearing on Petitioner's PCR application was held on January 20, 2016, the PCR record was not closed until November 9, 2018, following a hearing presenting testimony from Petitioner's counsel. Therefore, at the time Petitioner filed his federal habeas petition on December 28, 2020, his PCR application had been pending in state court for approximately two years. Since the filing of Petitioner's habeas petition, an additional two years have lapsed. Although Petitioner's habeas petition has been pending for four years, several courts have only excused a failure to exhaust following a lengthier delay in ruling on a post-conviction action. See, e.g., Plymail v. Mirandy, 671 Fed.Appx. 869, 870 (4th Cir. 2016) (finding Petitioner was excused from exhausting administrative remedies due to a twenty-year delay in the state court deciding his direct appeal); Lee v. Stickman, 357 F.3d 338 (3rd Cir. 2004) (excusing exhaustion after an eight-year delay in deciding a post-conviction relief action); Turner v. Bagley, 401 F.3d 718, 726-27 (6th Cir. 2004) (noting an eleven-year delay in deciding petitioner's state direct appeal resulted in state court remedies being unavailable). However, there are also courts which have not required full exhaustion when a post-conviction action has been pending four years or less. See Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (holding, in the context of a four-year delay, that “a prisoner need not fully exhaust his state remedies if the root of his complaint is his inability to do so”); Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986) (holding thirty-three-month delay rendered state remedy ineffective). Although a four-year delay may be long for a PCR action, four years is not so excessive as to definitively find the delay has rendered Petitioner's state court remedies ineffective. The undersigned finds this Ward factor is neutral.
Addressing the second Ward factor, the cause of the delay on the ruling on the PCR application is not clear. However, it appears the delay can be attributed to both the PCR court and State's counsel. Respondent submitted a status report to the court on November 28, 2022, in which he indicates that the State submitted a proposed order to Judge Birch on an unknown date, and on June 30, 2022, Judge Birch agreed to allow the State to retract the prior proposed order and draft a new proposed order. ECF No. 50 at 1. Respondent submitted a second status report on February 3, 2023, and explained the State is currently completing its proposed order and anticipates that the order will be submitted to the court within one week to 10 days. ECF No. 53. Consequently, the undersigned finds this Ward factor favors Petitioner.
As to the third factor, it does not appear that Petitioner has taken any action to assert his rights at the state court level. Petitioner has not offered any documentation showing that he has reached out to the courts or his PCR counsel or taken any other action concerning the delayed ruling on his PCR application. The undersigned finds this Ward factor favors Respondent.
Finally, as to the fourth Ward factor, it does not appear Petitioner will be prejudiced by any further delay. The record in Petitioner's plea proceedings, sentencing, and PCR motion hearings are still available, and Respondent has submitted a status update explaining that the State court and the State's attorney have taken steps to have an order issued in Petitioner's PCR action. Accordingly, the undersigned finds this Ward factor favors Respondent.
The undersigned finds that three of the four Ward factors do not generally favor Petitioner. As such, the administration of justice is better served by insisting on exhaustion in this case, rather than reaching the merits of the Petition prior to a decision in State court. Although the dismissal of the instant Petition, without prejudice, will cause a delay in the resolution of Petitioner's habeas Petition, such a dismissal will allow Petitioner to bring substantive challenges to his State convictions once his State remedies are exhausted.
The undersigned's finding that Petitioner's claims are not exhausted should not bar Petitioner from raising these claims in a subsequent petition. See 28 U.S.C. § 2244(b); Slack v. McDaniel, 529 U.S. 473, 485-86 (2000) (“A habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.”). However, the court expresses no opinion as to whether the claims would be procedurally barred in a subsequent federal habeas petition based on independent state law. Davis v. James, No. CV 0:19-2720-JD-PJG, 2021 WL 1845079, at *8 (D.S.C. Feb. 23, 2021), report and recommendation adopted, No. CV 0:19-2720-JD-PJG, 2021 WL 1608786 (D.S.C. Apr. 26, 2021), and report and recommendation adopted as modified, No. CV 0:19-2720-JD-PJG, 2021 WL 2014903 (D.S.C. May 20, 2021).
V. Conclusion and Recommendation
Therefore, based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 40, be GRANTED and the Petition be DISMISSED WITHOUT 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
Post Office Box 2317
Florence, South Carolina 29503
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).