Opinion
C. A. 4:21-0015-TLW-TER
07-28-2021
REGINALD CANTY, Petitioner, v. WARDEN CHARLES WILLIAMS, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 4, 2021. (ECF No. 1). Respondent filed a motion for summary judgment along with a return and memorandum. (ECF Nos. 25 and 26). The undersigned issued an order filed April 28, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (ECF No. 27). On June 7, 2021, Petitioner filed a response and Respondent filed a reply on June 14, 2021. (ECF Nos. 31 and 33).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
PROCEDURAL HISTORY
The procedural history as set forth by the Respondent has not been disputed by the Petitioner. Therefore, the undersigned will set out the undisputed procedural history, in part, as set forth by the Respondent.
Petitioner is in custody of the South Carolina Department of Corrections pursuant to orders of commitment by the Sumter County Clerk of Court on a murder conviction and is currently serving thirty years. (ECF No. 18). The Sumter County Grand Jury true-billed Petitioner's indictment for murder and armed robbery on September 11, 2008. Petitioner was represented by Garryl Deas, Esquire. The case proceeded to trial with the co-defendant, Daniel D'Angelo Jackson, before the Honorable W. Jeffrey Young. Petitioner was found guilty as charged on August 12, 2011. Petitioner was sentenced to thirty years for murder and thirty years for armed robbery to run concurrent. The co-defendant was sentenced to life imprisonment.
Direct Appeal
On August 16, 2011, a timely notice of appeal was filed on Petitioner's behalf. Petitioner argued that the trial court erred by admitting a close-up photograph depicting the bloody arm and gunshot wound, and by failing to grant a directed verdict. On June 4, 2014, the South Carolina Court of Appeals affirmed the decision of the trial court and issued the remittitur on June 23, 2014. Petitioner did not file a petition for writ of certiorari.
PCR Action
Petitioner filed an application for post-conviction relief (PCR) on January 13, 2015. In his PCR application, the Petitioner alleged he was being held in custody unlawfully for the following reasons:
1. Ineffective assistance of trial counsel a. Failure to investigate b. Failure to object to Belcher instruction c. Failure to request lesser-included charge instructions d. Failure to properly review discovery materials with Appellant e. Failure to question investigator concerning resignation from Sheriff's office f. Conflict of interest, Counsel was formerly forfeiture attorney for the Solicitor's office g. Breaking attorney-client privilege h. Failure to properly argue Batson motion
2. Newly discovered Evidence a. Codefendant recant trial testimony
3. Prosecutorial Misconduct a. Manipulation of the docket
4. Ineffective Assistance of Appellate Counsel(ECF No. 25-3 at 358 of 372).
Petitioner was represented by Lance Boozer, Esquire. An evidentiary hearing into the matter was convened on March 30, 2017, before the Honorable D. Craig Brown. Petitioner, Petitioner's co-defendant, and his trial counsel testified. An Order of Dismissal was entered on October 5, 2017, denying relief. (ECF No. 25-3 at 357-72 of 372).
PCR Appeal
PCR appellate counsel, Katherine H. Hudgins, filed a petition for writ of certiorari raising the following issue:
Did the PCR judge err in refusing to grant relief based on newly discovered evidence in the form of testimony from a co-defendant, who did not testify at trial, and was tried jointly with Petitioner and convicted but when the conviction was later reversed on appeal, the co-defendant pled guilty, told the plea judge Petitioner was not involved, and then testified at the PCR hearing that Petitioner was not involved in the robbery or murder?(ECF No. 25-11 at 3 of 11). On October 31, 2018, the South Carolina Supreme Court transferred the petition to the South Carolina Court of Appeals. (ECF No. 25-10). In an Order filed October 22, 2020, the South Carolina Court of Appeals denied the petition for a writ of certiorari. (ECF No. 25-13). The remittitur was issued on November 18, 2020. (ECF No. 25-14).
HABEAS ALLEGATIONS
Petitioner raised the following allegation in his petition, quoted verbatim:
GROUND ONE: Newly Discovered Evidence
Supporting Facts: Petitioner Plead Not guilty at Trial. Petitioner codefendant case was reversed and went back for new trial Petitioner codefendnat plead guilty while a plea[d]ing guilty codefendant testified stating Petitioner was not involved. Then Petitioner codefendant testified at Petitioners PCR hearing stating Petitioner was not involved in robbery or Murder.(Petition, ECF No. 1)(errors in original).
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists.
If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
STANDARD OF REVIEW
In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the requirements set forth in 28 U.S.C. § 2254. Under § 2254(d),
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 with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(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 State court proceeding.
Thus, a writ may be granted if a state court “identifies the correct principle from [the Supreme] Court's decisions but unreasonably applies that principle of law” to the facts of the case. Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)). However, “an ‘unreasonable application of federal law is different from an incorrect application of federal law,' because an incorrect application of federal law is not, in all instances, objectively unreasonable.” Id. “Thus, to grant [a] habeas petition, [the court] must conclude that the state court's adjudication of his claims was not only incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004). Further, factual findings “made by a State court shall be presumed to be correct, ” and a Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
ANALYSIS
Ground One
As set forth above, Petitioner raises one issue in his habeas petition. Petitioner argues “newly discovered evidence” asserting that Petitioner's co-defendant testified at Petitioner's PCR hearing that Petitioner was not involved in the robbery or murder.
Respondent filed a motion for summary judgment arguing that the claim raised is not cognizable as he does not assert a constitutional claim in conjunction with his claim of new evidence. Respondent asserts that the claim Petitioner raises in his federal habeas petition was fully litigated at his PCR hearing and that Petitioner has not shown how the PCR judge's findings were unreasonable or that no reasonable juror, in light of the new evidence, would have found him guilty beyond a reasonable doubt. Therefore, Respondent asserts that “Petitioner's claim of actual innocence based on newly discovered evidence is not based on evidence strong enough to open the gateway to any constitutional claim.” (ECF No. 25).
A review of the record reveals that Petitioner's co-defendant testified at Petitioner's PCR hearing that Petitioner was not part of the armed robbery, that Petitioner never agreed to aid or assist in the crime, and admitted there were no possible consequences for his testimony because his appeal process had already concluded. In the order of dismissal, the Honorable D. Craig Brown found the following with relation to the co-defendant's testimony:
Newly Discovered Evidence
Daniel Jackson's, Applicant's co-defendant at their joint trial, testimony was not newly discovered evidence. “[T]o obtain a new trial based on after discovered evidence, the party must show that the evidence: (1) would probably change the result if a new trial is had; (2) has been discovered since trial; (3) could not have been discovered before trial;
(4) is material to the issue of guilt; or innocence; and (5) is not merely cumulative or impeaching.” Jamison v. State, 410 S.C. 456, 467, 765 S.E.2d 123, 128 (2014).
Further, this Court finds Jackson's testimony was completely unreliable and lacking in credibility. At the PCR hearing, Jackson claimed Applicant was never part of the armed robbery. He claimed Applicant never agreed to aid or assist in the crime. Jackson admitted there were no potential consequences for his testimony at the hearing because his appellate process was finished. He also claimed he wanted to take the witness stand at his own trial so he could admit he committed the crime and Applicant was not involved, but was scared of getting the death penalty. Jackson gave no explanation for the rifle under Applicant's bed, the shell casing in the peanut butter jar in Applicant's house, or Applicant's inconsistent statements to law enforcement. Jackson's change of heart from pleading not guilty and proceeding to trial to testifying he wanted to plead guilty and testify that Applicant was innocent is, in essence, a recantation. “[R]ecantation of testimony ordinarily is unreliable and should be subjected to the closest scrutiny when offered as ground for a new trial.” State v. Wright, 269 S.C. 414, 421, 237 S.E.2d 764, 768 (1977).
Jackson faced no potential consequences for his testimony. Jackson's testimony he wanted to take the stand to admit his guilt and testify Applicant was innocent is incongruous with his assertion of his right to a trial. During Jackson's first trial, he was tried jointly with Applicant and found guilty by the jury along with Applicant. On appeal, Jackson's case was remanded for a new trial. After remand, Jackson again asserted his innocence and his right to a trial. After five days of trial, Jackson pleaded guilty and was sentenced to 30 years' incarceration. Applicant presented no evidence Jackson's testimony would have a reasonable probability the result of the trial would have been changed. Jackson's testimony did not relieve the damning evidence found in Applicant's home or the multiple conflicting statements he gave to law enforcement. Therefore, Applicant failed to show Jackson's testimony would probably have changed the result of the trial.
Therefore, this Court finds Applicant has failed to prove he should be granted a new trial based on his co-defendant's recantation. Accordingly, this Court dismisses this allegation.(ECF No. 25-3 at 370-71 of 372).
This claim is not cognizable in federal habeas. “Habeas petitioners may use an actual innocence claim to excuse the procedural default of a separate constitutional claim upon which they request habeas relief.” Buckner v. Polk 453 F.3d 195, 199 (4th Cir. 2006) (citations omitted). However, “the Supreme Court has strongly suggested that claims of actual innocence standing alone do not serve as an independent basis for habeas relief: 'Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.'” Id. (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)). The court in Stukes v. Warden, Ridgeland Corr. Inst., No. 0:19-CV-03087-DCC, 2020 WL 4820251, at *4 (D.S.C. Aug. 19, 2020), appeal dismissed, 850 Fed.Appx. 193 (4th Cir. 2021) held the following with relation to this issue:
Federal habeas relief is available only on claims involving a “violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (a). A claim of actual innocence does not present a recognized question of federal law. Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.”). Given that a freestanding claim of actual innocence has not been specifically recognized by the Supreme Court, the petitioner's claim of actual innocence should not be considered cognizable in federal habeas. McQuiggin v. Perkins, U.S., 133 S.Ct. 1924, 1931 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”).
In addition to not being cognizable in federal habeas review, Petitioner has failed to present any new, reliable evidence of any type that was not presented in any of his state court proceedings which supports his innocence on the criminal charges. Geddie v. Warden, Lieber Corr. Inst., No. CV 9:18-2236-TLW-BM, 2019 WL 8017855, at *20 (D.S.C. Sept. 20, 2019), report and recommendation adopted, No. 9:18-CV-02236-TLW, 2020 WL 886111 (D.S.C. Feb. 24, 2020), appeal dismissed, 813 Fed.Appx. 900 (4th Cir. 2020) citing Schlup v. Delo, 513 U.S. 298, 324 (1995)(to present a credible claim of actual innocence, a petitioner must “support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial”). This issue was presented in Petitioner's PCR application and the co-defendant testified at Petitioner's PCR evidentiary hearing. The PCR application was dismissed for the reasons set forth above. Therefore, this issue was raised and ruled upon by the state court. A presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1); Evans v. Smith, 220 F.3d 306 (4th Cir. 2000). Petitioner fails to show an unreasonable determination of facts based on the state court record. Accordingly, it is recommended that Respondent's motion for summary judgment be granted.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 26) be GRANTED in its ENTIRETY and that the petition be dismissed without an evidentiary hearing.
The parties' attention is directed to the important notice on the next page.