Opinion
C. A. 9:22-cv-02680-RMG-MHC
08-18-2023
Carlos Dennison, Petitioner, v. Warden of McDougall Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Petitioner Carlos Dennison, (“Petitioner”), is seeking a writ of habeas corpus under 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. 19, 20. Petitioner filed this action on August 12, 2022. ECF No. 1. Respondent timely filed a Return and Motion for Summary Judgement on March 9, 2023. ECF Nos. 19, 20. Petitioner filed a Response on March 24, 2023. ECF No. 23. And Respondent filed a Reply on April 10, 2023. ECF No. 28. This matter is fully briefed and ready for review.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 20, be granted and the Petition, ECF No. 1, dismissed.
I. BACKGROUND
Petitioner was indicted by the Georgetown County Grand Jury in 2018 for possession with intent to distribute (“PWID”) heroin and cocaine. ECF No. 19-1 at 301-04. He proceeded to trial before the Honorable J. Mark Hayes in July 2019 and chose to represent himself. ECF No. 19-1 at 14. The State went forward on the PWID heroin charge and simple possession of cocaine, both of which were third offenses. ECF No. 19-1 at 18. The jury found Petitioner guilty of both charges and Judge Hayes sentenced Petitioner to ten years imprisonment on each, to run concurrently. ECF No. 19-1 at 285 (verdict), 294 (sentence).
Petitioner filed a timely appeal and, through appellate defender Joanna K. Delaney, presented the following issue:
Whether the trial court erred where it refused to grant a mistrial despite twice erroneously instructing the jury that in determining whether Appellant had the intent to distribute, the inference weight for PWID heroin was two grams instead of two grains, where it was apparent the jury had fixed its “critical attention” on the issue, and where none of the court's instructions corrected the jury's misunderstanding that the inference was mandatory rather than permissive?ECF No. 19-3 at 4. On September 15, 2021, after briefing by the State, the South Carolina Court of Appeals affirmed Petitioner's convictions and sentences. ECF No. 19-5. The matter was remitted to the lower court on October 4, 2021. ECF No. 19-6. Petitioner did not pursue postconviction relief (“PCR”).
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, 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, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only 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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). ECF No. 1. Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). 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.28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”).
A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under § 2254(d)(1) focuses on what a state court knew and did,” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus,] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “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.” Williams, 529 U.S. at 410. Further, factual findings “made by a State court shall be presumed to be correct,” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
C. 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 default/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 a petitioner has appropriately exhausted available state-court remedies or after a petitioner has otherwise defaulted/bypassed seeking relief in the state courts will be dismissed absent unusual circumstances, as detailed below.
1. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies. See 28 U.S.C. § 2254(b)-(c). The statute requires that, before seeking habeas corpus relief, a petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Stated plainly, in the interest of giving state courts the first opportunity to consider alleged constitutional errors in state proceedings, a § 2254 petitioner is required to “exhaust” all state remedies before a federal district court can entertain his claims. Thus, a federal habeas 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, 770 (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 generally result in the application of a procedural bar by the South Carolina Supreme Court. See Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009) (discussing procedural bar and noting the “general rule” in South Carolina is that where a party fails to file a Rule 59(e) motion, the argument is forfeited). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45. In South Carolina, 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. See Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (S.C. 1990) (“[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”).
2. Procedural Default/Bypass
When a federal habeas petitioner has failed to raise a claim at the appropriate time in state court and has no further means of bringing that issue before the state courts, the claim will be considered procedurally defaulted, and he will be procedurally barred from raising the issue in his federal habeas petition. Smith v. Murray, 477 U.S. 527, 533 (1986). This situation is sometimes referred to as procedural bypass, as the petitioner has “bypassed” his state remedies. In other words, procedural default/bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Procedural default/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. See, e.g., Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)). Further, if a prisoner has failed to file a direct appeal or a PCR application 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.Reedv. Ross, 468 U.S. 1, 10-11 (1984). If a federal habeas petitioner has procedurally defaulted his opportunity for relief in the state courts, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear. Teague v. Lane, 489 U.S. 288, 297-98 (1989).
3. Cause and Actual Prejudice
Notwithstanding the foregoing, a federal court may consider claims that have not been presented to the highest South Carolina court with jurisdiction in very limited circumstances. See Granberry v. Greer, 481 U.S. 129, 131 (1987). Indeed, because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the state's 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 by “prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008).
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. Murray v. Carrier, 477 U.S. 478, 488-97 (1986). 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. 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. Id. at 496.
III. DISCUSSION
Petitioner raises the following grounds for relief:
Ground One: False Arrest “Motion Defective Warrant”
Ground Two: Trial Court Erred by Testify[ing] as a Handwriting Expert
Ground Three: Trial Court Erred by Allowing the State to Allow its Witnesses to Perjur[e] ThemselvesECF No. 1 at 5, 14, 14. Respondent argues all three grounds are procedurally barred and that Ground One is not cognizable on federal habeas review. ECF No. 19 at 13-14. The undersigned agrees.
All of Petitioner's claims stem from his fervent belief that the signatures on the warrants authorizing his arrest were forged. Petitioner raised his concern to the trial court through two pretrial motions, both of which the judge denied. ECF No. 19-1 at 31-38, 41-45. In addition, during the trial, the arresting officers who obtained the warrants and the judge who signed them all testified that the signatures on the forms were in fact their signatures. See Id. at 74, 75-88, 11922, 127-36. The warrants were also entered into evidence for the jurors to examine for themselves. See Id. at 16-17. Despite the testimony and evidence on this issue, the jury found Petitioner guilty. Id. at 285.
Petitioner did not challenge the warrants or raise any related trial errors in his appellate brief. See ECF No. 19-3 at 2 (statement of issue on appeal). Petitioner also chose not to pursue a PCR action and the time to do so has expired. See S.C. Code Ann. § 17-27-45 (requiring a PCR application to be filed “within one year after the sending of the remittitur to the lower court from an appeal or the filing of the final decision upon an appeal, whichever is later”); ECF No. 19-6 (direct appeal remittitur dated October 4, 2021). Thus, Petitioner failed to properly present his grounds for relief to South Carolina's appellate courts, and he is now barred from doing so. Accordingly, Petitioner is procedurally barred from raising his claims in this federal habeas action. See Coleman, 501 U.S. at 731-32.
A. Cause and Prejudice
Petitioner asserts cause to excuse the default based on his appellate counsel's allegedly ineffective failure to present his claims in the appellate brief. ECF Nos. 1 at 7-9, 23 at 7-9. A meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984). A court's evaluation of counsel's performance under this standard must be “highly deferential,” so as to not “second-guess” counsel's decisions. Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound [] strategy.” Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992). To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” has been defined as “a probability sufficient to undermine confidence in the outcome.” Id.
Petitioner alleges he asked his appellate attorney to brief the warrant issue, but she did not do so, instead choosing to brief a different issue. ECF Nos. 1 at 2, 13 and 23 at 8. He further asserts he was prejudiced “because it's a crime to commit forgery and kidnap” and the underlying constitutional violations led to his continued “kidnapping” and the denial of a fair trial. ECF No. 23 at 8-9.
In applying Strickland to claims of ineffective assistance of appellate counsel, the court accords appellate counsel the “presumption that [s]he decided which issues were most likely to afford relief on appeal.” Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993). “Winnowing out weaker arguments on appeal and focusing on those more likely to prevail . . . is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986); see also Lawrence v. Branker, 517 F.3d 700, 709 (4th Cir. 2008) (“Effective assistance of appellate counsel does not require the presentation of all issues on appeal that may have merit, and [the court] must accord counsel the presumption that he decided which issues were most likely to afford relief on appeal.”). Although it is possible to bring a successful ineffective assistance of appellate counsel claim based on failure to raise a particular issue on direct appeal, the Supreme Court has reiterated that it is “difficult to demonstrate that counsel was incompetent.” Smith v. Robbins, 528 U.S. 259, 288 (2000). “‘Generally, only when ignored issues are clearly stronger than those presented will the presumption of effective assistance of counsel be overcome.'” Id. at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). To establish prejudice relating to the actions of appellate counsel, Petitioner must establish a reasonable probability that, but for appellate counsel's unreasonable failure to include a particular issue on appeal, he would have prevailed on his appeal. See id. at 285-86.
Petitioner fails to show his allegation of forged arrest warrants and related trial errors is stronger than the issue appellate counsel chose to present or that his appeal would have been successful had she presented the warrant issue. Petitioner argued the substance of Ground One in pretrial motions, throughout the trial, and in closing argument. See ECF No. 19-1 at 31-38, 4145, 247-56. The signees identified the signatures on the warrants as their own and explained the signing process and why the same signature may look slightly different on different documents. Id. at 74, 75-88, 119-22 127-40. The jurors received the contested warrants in evidence and had the opportunity to compare the signatures for themselves. Id. at 16-17. And still, the jury found Petitioner guilty. Petitioner has not offered any evidence or argument to suggest an appellate court would have decided the issue differently.
Moreover, Grounds Two and Three-Petitioner's claims that the trial court erred by acting as a handwriting expert and allowing state witnesses to perjure themselves-were not raised at trial and thus were not preserved for appellate review. Appellate counsel cannot be at fault for failing to raise an issue that was not properly preserved. See Jones v. Barnes, 463 U.S. 745, 752 (1983) (noting appellate counsel is not obligated to assert all nonfrivolous issues on appeal and is expected to “examine the record with a view to selecting the most promising issues for review”); Lavernia v. Lynaugh, 845 F.2d 493, 499 (5th Cir. 1988) (“Counsel cannot be faulted for failing to make meritless motions.”). Accordingly, Petitioner fails to show his appellate counsel provided ineffective assistance and all three grounds remain procedurally defaulted.
B. Stone Doctrine
In addition, because Ground One alleges a freestanding Fourth Amendment claim, it is not cognizable on federal habeas review, unless Petitioner did not receive a full and fair opportunity to litigate the issue in state court. See Stone v. Powell, 428 U.S. 465, 482 (1976) (holding 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 relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial”); see also Doleman v. Muncy, 579 F.2d 1258, 1265 (4th Cir. 1978) (absent a showing that the “opportunity” to litigate Fourth Amendment claims has been impaired, the district court need not inquire further into the merits of those claims when applying Stone in a § 2254 proceeding). Here, Petitioner raised his Fourth Amendment challenge to the warrants during trial and had a full opportunity to raise them on appeal. Petitioner has not shown any impediment to his ability to fully and fairly litigate his claims in state court. Thus, in addition to being procedurally defaulted, Ground One is subject to dismissal under the Stone doctrine.
C. Miscarriage of Justice
Finally, Petitioner argues dismissal of this action would result in a miscarriage of justice. ECF Nos. 1 at 7, 23 at 4, 6, 9. Procedural default may be excused where the petitioner can show that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Schulp v. Delo, 513 U.S. 298, 314 (1995); Bostic v. Stevenson, 589 F.3d 160, 164 (4th Cir. 2009). A “fundamental miscarriage of justice” is generally considered to occur when “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 495 (1986). Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). Only “truly extraordinary” cases where the complained-of errors resulted in the conviction of an innocent person qualify under this exception to procedural default. Schulp, 513 U.S. at 338. Petitioner cannot make such a showing.
At trial, Petitioner admitted to possessing and using controlled substances but maintained that he was an addict, not a dealer. ECF No. 19-1 at 237, 247. The evidence showed that law enforcement arrested Petitioner on outstanding warrants and, during a search incident to that arrest, found a small lip balm container containing plastic bags filled with suspected heroin and cocaine, additional empty plastic baggies, and lottery ticket slips. Id. at 101-03. The suspected drugs were tested and found to be various combinations of heroin, cocaine, and fentanyl of differing weights. Id. at 204-06. An officer from the drug enforcement unit testified that lottery tickets are commonly used to package and sell drugs, id. at 91, 103, and testimony from experienced narcotics officers suggested the weights of the drugs found on Petitioner were greater than typical doses found in the possession of drug users, id. at 90-91. The record fails to support a showing of actual innocence such that this Court should set aside the procedural default of Petitioner's habeas grounds. Accordingly, the undersigned recommends granting Respondent's motion for summary judgment.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 20) be GRANTED and the Petition be DISMISSED with prejudice.