Opinion
2:21-cv-1973-HMH-MGB
03-29-2022
Kenneth Bryant Evans II, Petitioner, v. Warden Wallace, Kirkland Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Petitioner Kenneth Bryant Evans II (“Petitioner”) is an inmate in the custody of the South Carolina Department of Corrections who currently is housed at Kirkland Correctional Institution in Columbia, South Carolina. On July 1, 2021, Petitioner, proceeding pro se, filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus. (Dkt. No. 1.) Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this Magistrate Judge is authorized to review the instant § 2254 petition and submit findings and recommendations to the District Court.
On October 1, 2021, Respondent Warden Wallace filed a return and memorandum and motion for summary Judgment. (Dkt. Nos. 20, 21.) On October 4, 2021, the court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 22.) Petitioner filed a response in opposition on October 14, 2021 (Dkt. No. 25), to which Respondent filed a reply on October 21, 2021 (Dkt. No. 26). Petitioner filed a surreply on November 8, 2021. An amended return and memorandum and amended motion for summary judgment were filed by Respondent on December 17, 2021. (Dkt. Nos. 42, 43.) Petitioner filed an amended § 2254 petition on December 20, 2021. (Dkt. No. 45.) Also on December 20, 2021, this court issued a second Roseboro order. (Dkt. No. 46.) Respondent filed a supplement to its return and memorandum on February 3, 2022. (Dkt. No. 71.) Petitioner filed a response to the amended motion for summary judgment on March 9, 2022 (Dkt. No. 73), and filed a supplement to his response on March 14, 2022 (Dkt. No. 75).
For the reasons set forth herein, the undersigned recommends Respondent's motion for summary judgment, as amended, be granted.
BACKGROUND
On June 5, 2015, at about 4:00 AM, a caller notified the Aiken County, South Carolina, Department of Public Safety regarding a suspicious vehicle in her driveway. The caller stated that the vehicle was running, the headlights were on, and a person was inside. Officers were dispatched and discovered Petitioner asleep in the running vehicle. An officer roused Petitioner, administered a variety of sobriety tests, and ultimately placed Petitioner under arrest for driving under the influence. Another officer who was standing in front of the driver's side door reported that he could see a gun on the floorboard underneath the driver's seat. An officer seized the weapon and noticed that the serial number had been obliterated. Also inside the center console was a plastic baggy containing 32.49 grams of methamphetamine. (Dkt. No. 42-5, 16-18.) Petitioner was placed under arrest for driving under the influence, possession of a firearm with obliterated serial number, and trafficking in methamphetamine. (Dkt. 42-5, 159-64.) Eventually he was released on bond with a home detention requirement. (Dkt. No. 42-5, 18.) In August 2015, the home detention requirement was lifted so Petitioner could assist the local Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) task force.
On October 16, 2015, Petitioner's wife was at a hair salon. While she was confined to the stylist's chair, Petitioner entered the salon and began haranguing her. Petitioner's wife approached law enforcement about the episode, and Petitioner was charged with harassment, 1st Degree. (Dkt. No. 42-5, 157.) As a result, it was discovered that Petitioner was not living with his wife as reported. Instead, his wife had filed for divorce the day he was arrested. (Dkt. No. 42-5, 18-19.)
Petitioner left the area before he could be served with the harassment warrant. The South Carolina Law Enforcement Department traced Petitioner's phone and was able to locate him at a motel in Batesburg, South Carolina. When the ATF task force entered the room to arrest Petitioner, he was attempting to flush methamphetamine down the toilet. Petitioner had in his possession almost $2,000.00, another firearm, numerous mobile phones, and other items. (Dkt. No. 42-5, 1920.)
A grand jury for Aiken County indicted Petitioner on January 4, 2016 and charged him as follows:
• Trafficking at least 28 grams but less than 100 grams of methamphetamine, in violation of S.C. Code Ann. § 44-53-375(C)(2)(b). Case No. 2016-GS-02-00018. (Dkt. No. 42-5, 151; 42-12, 44.)
• Possession of a S&W 40VE pistol from which the original serial number had been obliterated, in violation of S.C. Code Ann. § 16-23-30. Case No. 2016-GS-02-00018. (Dkt. No. 42-5, 154; 42-12, 39.)
• Harassment in the first degree, in violation of S.C. Code Ann. § 16-03-1720(A). Case No. 2016-GS-02-00019. (Dkt. No. 42-5, 156.)
Three other indictments were not prosecuted. (Dkt. No. 42-5, 61.) The driving under the influence offense remained under the jurisdiction of the municipal court. (Dkt. No. 42-5, 13.)
On April 14, 2016, Petitioner appeared before the Honorable Doyet A. Early, III for a straight-up guilty plea to the drug charge and gun charge, and to a lesser included offense of harassment in the second degree. (Dkt. No. 42-12, 89.) Petitioner was represented by M. Bradley McMillian, Esquire. (Dkt. No. 42-12, 88.) The trial judge engaged in the following colloquy with Petitioner at the plea hearing:
THE COURT: Mr. Evans, good morning.
THE DEFENDANT: Good morning.
THE COURT: You've got two charges. Possession of a pistol with an obliterated serial number, that carries up to five years and/or $2000 fine. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Harassment. The State's allowing you to plead to the lesser-included offense of harassment second. That's a 30-day sentence or 200. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Obviously the major charge is the trafficking in methamphetamine. This is your second offense. Do you understand that charge?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that I have to incarcerate you for a minimum of seven years? The law gives me the discretion to sentence you up to 30 years and a $50,000 fine.
THE DEFENDANT: Yes, sir.
THE COURT: Are you aware and have you been advised this is what is known as a no-parole sentence. Whatever sentence you may receive, whether it be from seven to 30 or anything in between, you will have to do 85 percent of that. In other words, if you get a 10-year sentence you'll have to do eight and a half years.
THE DEFENDANT: Yes, sir.
THE COURT: It's a no-parole sentence. And once you're released from incarceration, it will be to a community supervision program.
THE DEFENDANT: Yes, sir.
THE COURT: Are you aware that it's classified as violent and that may have - and will have some effect on where and how you're housed in the Department of Corrections.
THE DEFENDANT: Yes, sir.
THE COURT: And youre aware that it's classified as serious? Are you?
THE DEFENDANT: Yes, sir.
THE COURT: And do you understand that that constitutes your first strike under South Carolina's three-strike law which means that when you are released from incarceration if you become involved in any criminal activity classified as serious or most serious two more times you would have three strikes, and that would subject you to being put in jail for the rest of your life without the possibility of parole. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions concerning anything that you're charged with, the potential sentences, the classifications that we've been over?
THE DEFENDANT: No, sir.
THE COURT: Understanding all of that, sir, how do you wish to plead to these charges, not guilty or guilty?
THE DEFENDANT: Guilty.
THE COURT: Do you understand, Mr. Evans, that if you plead guilty you'll give up your constitutional right to remain silent, you'll have to admit to me your involvement in all three indictments?
THE DEFENDANT: Yes, sir.
THE COURT: You will also give up your right to a jury trial. Obviously if you pled not guilty and demanded a jury trial the State would provide one for you at which time you would have the right to confront and cross-examine everyone who testified against you. You would have the right to present your defense, your side of the story, by calling witnesses, introducing relevant exhibits, and testifying and telling your side of the story.
If you chose not to testify and exercise your right to remain silent, then I would tell the jury they could not hold the fact that you did not testify against you in any manner whatsoever. And I would instruct them that they could not even consider the
fact that you did not testify when they deliberated your guilt or innocence.
You would be presumed innocent throughout the trial, and the State of South Carolina would have the burden of proving you guilty beyond a reasonable doubt to a jury of 12 people. And in order for the jury to convict you all 12 jurors would have to unanimously agree that you were in fact guilty. And even if you were found guilty you would still have the right to an appeal.
Now, do you understand your rights to trial by jury?
THE DEFENDANT: Yes, sir.
THE COURT: Understanding those rights do you still wish to plead guilty?
THE DEFENDANT: I do.
THE COURT: Has anyone promised you anything, held out any hope of reward, or threatened you in any manner in order to make you plead guilty?
THE DEFENDANT: Not to plead guilty, no, sir.
THE COURT: Are you satisfied with your lawyer, Mr. McMillian?
THE DEFENDANT: As good as I can be.
THE COURT: Do you have any complaints you want to tell me about him?
THE DEFENDANT: No, sir, not.
THE COURT: Anything else you want him to do for you today before I move forward other than speak up on your behalf?
THE DEFENDANT: Just make sure that DUI got kicked out. I told him I wanted that kicked out to plead guilty.
[SOLICITOR MS. YOUNG]: It's pending . It's not in our court, Your Honor.
MR. McMILLIAN: It's in city court, Judge.
THE COURT: Well, these solicitors - I don't guess you have the right to do that.
MS. YOUNG: I haven't brought that charge up. I didn't - he hasn't asked me to, and I haven't been asked to so I did not bring it up with these charges.
THE COURT: I'm not going to hold it against you. How about that?
THE DEFENDANT: All right.
....
THE COURT: Are you today under the influence of alcohol or drugs?
THE DEFENDANT: No, sir.
THE COURT: And are you pleading guilty of your own free will?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Let's address June 5 here. Did you on June 5, 2015, have in your possession in Aiken County, 28 grams, between 28 grams and 100 grams, I think it was some 32 grams, of methamphetamine?
THE DEFENDANT: Yes, sir.
THE COURT: You're pleading guilty because you are guilty of that?
THE DEFENDANT: Yes, sir.
THE COURT: On that same date, sir, did you have on your person a S&W .40 BB pistol, I'm not sure what that is, where the original serial number had been either removed or altered or obliterated?
THE DEFENDANT: It wasn't on my person. It was in the vehicle.
THE COURT: Same thing. That means possession.
THE DEFENDANT: Uh-huh. Yes, sir.
THE COURT: You're pleading guilty to both of those?
THE DEFENDANT: Yes, sir.
THE COURT: And then on the harassment indictment did you, sir, on different times between September 11 and October 16 of the year 2015, harass one Chelsea Evans which could or would have caused her to suffer some type of distress that you continued to contact her after being told not to?
THE DEFENDANT: It did cause her distress. Yes, sir.
THE COURT: I accept your plea. I find his decision to plead guilty to all three
indictments to be freely, voluntarily and intelligently made. He's had the representation of an excellent lawyer, Mr. Bradley McMillian with whom he says he's satisfied. And I'll accept the plea.(Dkt No. 42-5, 8-15.)
The solicitor then described the events occurring in June and August 2015 that led to Petitioner's arrests. The solicitor also informed the court that Petitioner had not been charged for the methamphetamine and other items in his possession when he was arrested in Batesburg, but the incident comprised part of the reason the government requested a lengthy sentence. The solicitor advised that Petitioner gave information about being involved in moving large quantities of methamphetamine. The solicitor also stated that Petitioner had refused to accept a negotiated fifteen-year sentence. (Dkt. No. 42-5, 16-21.) In his defense, Petitioner told the trial judge that he had not been using drugs until his wife asked him to leave. (Dkt. 42-5, 24.) He stated the money in his possession in Batesburg was from selling his tools and other personal belongings. (Dkt. No. 42-5, 25.)
Petitioner's wife addressed the trial judge. She stated that she and Petitioner had been married only two years when in 2012:
- he began staying gone from the house, coming and going all hours of the night. He was disrespectful with his job, refused to work, wouldn't contribute to the bills . He was violent and abusive towards me and in front of our children. He threatened my life and gave specific details as to how he would dispose of my body. He would threaten to take our children while I was at work if I left him and he refused to leave our home. I filed for divorce the very day that he was arrested because it was the first time that I felt like it was an opportunity to get away and protect my children at the same time.
Once he got out on bond without being on the ankle monitor, that's when he began to follow me and harass me. He was carrying out threats that he had made to me before such as car vandalism, specific threats and even being accused of hiring someone to kill me. My whole life was consumed with fear. I couldn't sleep. I had to take several steps to protect myself and his children.
I believed all of his threats because he is very irrational. He's displayed a pattern that shows no respect for authority of the law. He continues to break the same laws.
I mean, there's really no words to describe the amount of fear and anxiety that I have had and experienced while living with him during the time that he began on drugs around 2012, and when he was harassing me.(Dkt. No. 42-5, 27.)
Finally, Officer Carlos Colindres with the Aiken, South Carolina, Department of Public Safety and the ATF task force testified. Officer Colindres stated that Petitioner was a “pretty big” player in the drug trafficking trade and that the government was forced to “exhaust all kinds of federal and state resources in looking for him[]” to serve the harassment warrant. (Dkt. No. 42-5, 28-29.)
Contrary to his statements in chambers that he was inclined to sentence Petitioner to seven to fifteen years incarceration, the trial judge sentenced Petitioner to sixteen years incarceration as to the trafficking charge, five years incarceration as to the gun charge, and 30 days as to the harassment charge, to be served concurrently. (Dkt. No. 42-5, 149, 152 & 155.) Petitioner's projected max-out date is February 5, 2030. (Dkt. No. 42-12, 46.) See also https://public.doc.state.sc.us/scdc-public/[kenneth evans] (accessed March 21, 2022).
Plea counsel filed a notice of intent to appeal on May 2, 2016. (Dkt. No. 42-1; dated April 15, 2016.) The notice was accompanied by plea counsel's explanation pursuant to S.C. App. Ct. R. 203(B)(iv) that he did not have a good faith basis to believe any issues were properly before the appellate court. (Dkt. No. 42-2.) Plea counsel also provided copies of the notice of appeal, indictments, arrest warrant, sentencing sheet, Petitioner's affidavit of indigency, and the Rule 203(B)(iv) explanation to the South Carolina Commission on Indigent Defense. (Dkt. No. 42-5, 145-62.) The appeal was dismissed on June 30, 2016 pursuant to S.C. Ct. R. 203(d)(1)(B)(iv). (Dkt. No. 42-3.) Remittitur was issued on July 20, 2016. (Dkt. No. 42-4.)
Petitioner filed a pro se application for post-conviction relief (“PCR”) on August 22, 2016. (Dkt. No. 42-5, 31.) See Uniform Post-Conviction Procedure Act, SC Code Ann. §§ 17-27-10 to -160. Petitioner asserted the following grounds of ineffective assistance of counsel:
(a) My attorney advised me to enter a plea based on an informal meeting in chambers with the solicitor and judge. I was advised the judge gave an advanced indication of sentencing, and that I would receive a sentence of more than 7, but less than 15 yrs. My attorney advised me I would likely receive 8 or 9 years. At the plea, the judge sentenced me to 16 yrs for trafficking, and 5 years for firearm possession. This sentence did not conform with the judge's advance indication. My attorney did not object, or move for reconsideration or withdrawal of the plea contemporaneously, or within 10 days after sentencing.
(b) My attorney did not properly prepare my defense, and spent little time with me until he advised me I needed to plead guilty or the solicitor would call the case to trial. I had asked for copies of discovery and they were not provided to me. I did not see or hear from my attorney for months, and only spoke with him briefly on the phone, after I'd call and ask to see him, I was told the state had not provided discovery, but later learned, when I did finally receive copies of some of the discovery, after sentencing, that my attorney had in fact received the discovery.
(c) My attorney did not file a motion to suppress evidence, although he had grounds to do so. and I requested that he do so.(Dkt. No. 42-5, 33.)
On August 22, 2016, Robert Rutland Thuss, Esquire made an appearance as PCR counsel. (Dkt. No. 42-5, 39.) Respondent filed a return on December 19, 2016. (Dkt. No. 42-5, 50.)
On May 26, 2017, a PCR hearing was held before the Honorable Diane S. Goodstein. Petitioner testified, among other things, that in April 2016 he met with plea counsel, who explained about just taking a plea and dealing with the consequences. Petitioner testified that plea counsel stated Petitioner was facing three years imprisonment, but Petitioner “didn't really feel like they had just cause to go in my truck to begin with, you know, so I just told him that I really just want to get a bond.” (Dkt. No. 42-5, 68.) The day of the change of plea hearing, Petitioner was transferred to the courthouse, where he met with plea counsel. Plea counsel informed Petitioner that his case had been placed on the trial list and that the solicitor had offered a plea to fifteen years incarceration. Petitioner refused the plea offer. (Dkt. No. 42-5, 68.) Petitioner told plea counsel that the government was trying to railroad him. Plea counsel told Petitioner the trial judge had stated in chambers “he would give me significantly less than 15 but more than 7 and I told him - I told him I was like more than 7, he was like - he figured like 8 or 9. And I told him, I was like, well, if you can get me 7, then I'll go with it.” (Dkt. No. 42-5, 69.) Plea counsel replied that Petitioner's wife and law enforcement were in the courtroom “and the judge was ready for me to take the plea and that - I really didn't want to piss the judge off, you know, because he said if I didn't take the plea that [the trial judge] would make sure we came back next term and make sure he seen my case.” (Dkt. No. 42-5, 69-70.) According to Petitioner, plea counsel stated the solicitor was not going to back off the recommendation of fifteen years, but the trial judge had said he was not going to impose a fifteen year sentence. (Dkt. No. 42-5, 70.)
Petitioner testified that, when he was in front of the trial judge, the solicitor started arguing the case, as if Petitioner were on trial. According to Petitioner,
And I was like, man, this ain't going right. So I motioned right then and I told him, I was like, this ain't going right. He just -- and he had told me previously in that room over there to just sit back and we got -- he explained the guilty plea to me and told me that I had to go through the motions and when it was said to me in here if I been offered anything, he told me to say no because the judge wouldn't be able to accept my plea. And considering, you know, his legal expertise that I was -- I was going with what he said because he knows better than I do, you know.
So then I got in here and then my wife had a paper that she done wrote up and she's reading word for word off of it and I felt like the judge judged me based on what her and the law enforcement said because right after she got off, the law enforcement come up here and -- like to my knowledge wasn't none of that supposed to happen.(Dkt. No. 42-5, 71.)
Petitioner testified plea counsel told him after sentencing that he would fix things. Petitioner thought plea counsel would withdraw the guilty plea or make a motion for reconsideration. Instead, Petitioner learned when he was transferred to state custody that plea counsel had filed a notice of appeal. (Dkt. No. 42-5, 72.) Petitioner stated he wrote to the Aiken County Clerk's Office seeking to obtain sentence reconsideration. He also moved for discovery, copies of his sentencing sheet and court transcripts, as well as PCR standard forms. (Dkt. No. 42-5, 75.) At some point after he was incarcerated, Petitioner received discovery from plea counsel. (Dkt. No. 42-5, 77.) Petitioner testified that he discovered discrepancies in the record he believed supported a motion to suppress. (Dkt. No. 42-5, 76.) Petitioner testified that, had he known he would be sentenced to more than fifteen years, he would have gone to trial. (Dkt. No. 42-5, 77.) According to Petitioner,
The Clerk sent a letter to Petitioner dated January 19, 2016, informing him that plea counsel would have to file the motion for reconsideration, and enclosing information about how Petitioner could obtain transcripts as well as PCR forms Petitioner had requested. (Dkt. No. 42-5, 144.)
[Plea counsel] said the solicitor wasn't going to present nothing. The solicitor was supposed to not say nothing at all. I thought I was just going to go in there and just go through the motions like he said and they was just going to file - you know, do my guilty plea and I really thought I was getting like 7 years and going to jail, really.(Dkt. No. 42-5, 81.)
On cross-examination, Petitioner acknowledged his responses to the trial judge's plea colloquy, but stated he just went through the motions as instructed by plea counsel. (Dkt. No. 42-5, 86.) Petitioner testified that he now wanted a trial, even knowing he would be subject to a thirtyyear sentence. (Dkt. No. 42-5, 88-89.) Petitioner testified that he affirmed during the plea colloquy that he was satisfied with plea counsel because he thought an agreement had been reached about his sentence. (Dkt. No. 42-5, 90.)
Plea counsel testified that he met with Petitioner several times in person and spoke with him over the telephone. (Dkt. No. 42-5, 92.) Plea counsel testified that, when Petitioner's case appeared on the trial list, plea counsel and Petitioner had a lengthy meeting to discuss the likelihood of succeeding on a motion to suppress the evidence. Plea counsel stated that he told Petitioner:
The situation with - with where the gun was and what drugs were in the vehicle, I did explain to him that - that I'd gone out, a guy in our office actually had a similar model Chevrolet 1500 truck, extended cab, and we went out and I - both of our investigators at the time are former law enforcement, so they kind of explained the process and how they approach a car from the A pillar and the B pillar and explained that maybe they could see the gun and maybe they couldn't. He and I talked about that. I explained to him that, you know, unless he got up there, testified, you know and even then, the judge could still accept the officer's word over his, and very likely would. We talked about the fact that he was being asked out of the vehicle to take field sobriety tests and he was ultimately arrested for DUI . I explained that once he was arrested for DUI, they're going to impound the vehicle and search it, do an inventory search and at that point they would likely find the gun, they would find the drugs, and this evidence would be coming in against him anyway.(Dkt. No. 42-5, 93-94.)
Plea counsel testified that he and the solicitor had met with the trial judge in chambers prior to the change of plea hearing, and that the trial judge had indicated, based on the facts he had at the time, that he would likely sentence Petitioner to more than seven, but less than fifteen, years. (Dkt. No. 42-5, 95.) Plea counsel stated he provided this information to Petitioner, but told Petitioner this was in no way a promise. Plea counsel opined, “Certainly I think some things came out at the plea that - that hadn't been conveyed in chambers: His issues with narcotic officers, his wife and the aggravated nature of that harassment certainly weren't conveyed in the back.” (Dkt. No. 42-5, 96.) Plea counsel denied that Petitioner requested the guilty plea be withdrawn, but stated Petitioner wanted to file for an appeal. Plea counsel denied that Petitioner asked for a motion for reconsideration to be filed, and also testified he was not aware of the letter Petitioner sent to the Aiken County Clerk's Office. (Dkt. No. 42-5, 98-99.) Plea counsel testified he was prepared to go to trial. (Dkt. No. 42-5, 100). Plea counsel also testified:
I didn't believe there was a defense. He and I talked at length about that. He and I talked about whether or not we could move to suppress this evidence and I explained that we could certainly move to suppress, but the likelihood of success was near nothing.(Dkt. No. 42-5, 100.)
Plea counsel testified on cross-examination that he did not object to the sentence imposed because “[s]everal things were presented, I think at the plea, that were circumstances the judge certainly considered that could change his mind about what he'd indicated to us in the back.” (Dkt. No. 42-5, 102.)
The PCR judge issued an order of dismissal on June 22, 2017, which was filed on June 30, 2017. The PCR judge found Petitioner's claims of ineffective assistance of counsel were without merit. Specifically, the PCR judge found plea counsel's testimony to be credible that he advised Petitioner of the maximum sentence possibilities and did not promise Petitioner any certain sentence. The PCR judge also noted that the trial judge had advised Petitioner of his sentencing range during the plea colloquy. The PCR judge determined that plea counsel could not be found deficient for the trial judge's apparent change of mind during the plea hearing. The PCR judge also noted that there was no legal reason to object to the sixteen-year sentence, which was within the sentencing range, and that Petitioner had been advised of the risk of a higher sentence before he entered his plea. According to the PCR judge, plea counsel credibly testified he met with Petitioner at least two or three times in person before the plea hearing, and possibly more. The PCR judge found plea counsel credibly testified he was prepared for trial, but there was no successful defense to use, which factored into his advice to Petitioner to plead guilty. Finally, the PCR judge found that plea counsel credibly testified that a motion to suppress would not have been successful, and that he explained his reasoning to Petitioner. The PCR judge further found that Petitioner could show no prejudice from plea counsel's decision not to file a motion to suppress. Accordingly, the PCR judge denied and dismissed with prejudice Petitioner's PCR application. (Dkt. No. 42-5, 107-15.)
PCR counsel filed a motion for reconsideration on July 10, 2017, and a memorandum in support of the motion on September 21, 2017. (Dkt. No. 42-5, 116-137.) The PCR judge denied the motion for reconsideration by order filed March 16, 2018. (Dkt. No. 42-5, 138-39.) PCR counsel filed a notice of appeal to the South Carolina Supreme Court on April 6, 2018. (Dkt. No. 42-5, 140.) On September 20, 2018, PCR counsel filed a petition for a writ of habeas corpus. (Dkt. No. 42-6.) PCR counsel raised the following issues:
1. Did the circuit court err in holding that petitioner's trial counsel was not ineffective in failing to move to withdraw the plea or to move for reconsideration of the plea?
2. Did the circuit court err in holding that petitioner's trial counsel was not ineffective in properly preparing a defense, and failing to meet with and spend sufficient time with the petitioner to prepare a defense?(Dkt. No. 42-6, 3.)
The government filed a return on January 4, 2019. (Dkt. No. 42-7). By order dated January 15, 2019, the PCR appeal was transferred to the South Carolina Court of Appeals pursuant to S.C. App. Ct. R. 243(1). (Dkt. No. 42-8.) By order dated November 5, 2020, Petitioner's petition for a writ of certiorari was denied summarily. (Dkt. No. 42-9.) The remittitur was issued on December 16, 2020, and filed on December 21, 2020. (Dkt. No. 42-10.)
On July 7, 2021, six days after the within § 2254 petition was filed, Petitioner, proceeding pro se, filed a successive PCR application based on newly discovered evidence. (Dkt. No. 42-11). Petitioner raised the following issue:
Applicants Conviction and Sentence is UnConstitutional in a violation of S.C. Const.
Art. 3, § 18; Art. 1 § 3 of U.S. Const. to Equal Protection of Law; 14th Amendment to U.S. Const.; S.C. Const. Art. 1, § 315; and 8th Amendment to U.S. Const. to “Cruel & Unusual Punishment” By the 1993 Act No. 184; 1995 Act No. 7; and 1996 Act No. 317 not having the impression of the “Great Seal” affixed to the Acts And Statutes his convictions and sentences are clearly invalid and they are UnConstitutional, was discovered within one (1) year in accordance with S.C. Code Ann. § 17-27-45(c), therefore the Applicant's Conviction and sentences Requires Vacations.(Dkt. No. 42-11, 10.)
According to Petitioner, the failure to affix the Great Seal to the referenced Acts and statutes constituted grounds for (1) lack of personal jurisdiction; (2) lack of subject matter jurisdiction; (3) unconstitutional laws due to missing impression of Great Seal; (4) fraud on the court by officers of the court; (5) fraud; and (6) ex post facto law. (Dkt. No. 42-11, 11.) Petitioner argued that the government was without legal authority to convict and sentence him because the General Assembly had not given proper legislative approval under the Great Seal. The government filed a return and motion to dismiss on September 13, 2021. (Dkt No. 42-12, 1-17.) The government argued that (1) Petitioner could not show sufficient reason why the new ground for relief was not raised in the initial PCR application; (2) the second PCR application was untimely because the PCR application was not filed within one year of the issuance of his remittitur; (3) Petitioner failed to establish a prima facie showing of newly discovered evidence; (4) the allegations in the successive PCR application were barred by the doctrine of res judicata; (5) the successive PCR application frustrated the necessity for finality of litigation.
On September 20, 2021, the Honorable Clifton Newman, Chief Administrative Judge for the Second Judicial Circuit, filed a conditional order of dismissal wherein he adopted the government's reasoning in all respects. The Administrative Judge informed Petitioner that the court intended to dismiss the second PCR application with prejudice pursuant to S.C. Code Ann. § 17-27-70(b) unless Petitioner provided specific reasons within twenty days as to why the order should not become final. (Dkt. No. 42-13.) Petitioner filed a response on September 27, 2021, in which he reiterated the grounds set forth in his second PCR application. (Dkt. No. 42-14.) It appears from the Second Judicial Circuit Public Index that Petitioner filed a number of documents in response to the conditional order of dismissal, including a motion to enlarge time for thirty days to allow him additional time to research and respond to the conditional order. (Dkt. No. 42-15.) The Administrative Judge filed a final order of dismissal on December 20, 2021. Petitioner filed a motion for reconsideration on January 7, 2022 that remains pending. See https://publicindex. sccourts.org/Aiken/PublicIndex/CaseDetails.aspx?County=02&CourtAgency=02002&Casenum =2021CP0201424&CaseType=V&HKey=1109999901026997431081021201151181208787511 018599847810490791104811265101114121521045788115105681226756115 (accessed March 23, 2022).
Petitioner asserts the following grounds for relief in his § 2254 petition, as amended:
GROUND ONE: Ineffective assistance of counsel. The PCR court and subsequent reviewing courts erred in failing to find counsel was ineffective in failing to move for reconsideration or withdraw the plea.
GROUND TWO: Involuntary guilty plea. The PCR court and subsequent reviewing courts erred in failing to find counsel was ineffective in failing to prepare a defense, and failing to meet with and spend sufficient time with Petitioner to prepare a defense.
GROUND THREE: Ineffective assistance of PCR counsel pursuant to Martinez v. Ryan. Was PCR counsel in violation of Martinez v. Ryan by failing to sumit a proposed order granting relief for Petitioner, Case v. Nebraska, the United States Supreme Court has already ruled that it's highly disfavored for the Attorney General's office to draw up proposed orders and not PCR judges. But PCR counsel was clearly ineffective assistance of PCR/collateral counsel in violation of Petitioner's 6th and 14th Amendment to the United States Constitution rights.
GROUND FOUR: Petitioner's conviction and sentence are unconstitutional because the impression of the “Great Seal” was not affixed to 1993 Act No. 184, 1995 Act
No. 7, and 1996 Act No. 317.(See generally Dkt. Nos. 1, 45.)
SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
HABEAS STANDARD OF REVIEW
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding.28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 398 (2000). The limited scope of federal review of a state petitioner's habeas claims is grounded in fundamental notions of state sovereignty. Richardson v. Branker, 558 F.3d 128, 138 (4th Cir. 2012) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)). When a federal court adjudicates a habeas corpus petition brought by a state prisoner, that adjudication constitutes an intrusion on state sovereignty. Id. (citing Harrington, 562 U.S. at 103). A federal court's power to issue a writ is limited to exceptional circumstances, thereby helping to ensure that “‘state proceedings are the central process, not just a preliminary step for a later federal habeas proceeding.'” Id. (citing Harrington, 562 U.S. at 103). The restrictive standard of review “‘further[s] the principles of comity, finality, and federalism.'” Id. (citing Williams, 529 U.S. at 364). “‘The pivotal question is whether the state court's application of the [applicable federal legal] standard was unreasonable.'” Id. (quoting Harrington, 562 U.S. at 103). “[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. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
State factual determinations are presumed to be correct and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 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.” Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)).
EXHAUSTION AND PROCEDURAL DEFAULT
Title 28, United States Code, Section 2254(b)(1) provides:
(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.
An exhausted claim has been “fairly presented” to the state courts. Flippo v. McBride, 393 Fed.Appx. 93, 97 (4th Cir. 2010) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.1997)). A procedurally defaulted claim is one that either has been, or would be, rejected by the state courts, not on the merits, but on the basis of an adequate and independent state procedural rule. Id. (citing Burket v. Angelone, 208 F.3d 172, 183 (4th Cir. 2000)). Thus, a federal court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991). This rule applies whether the state law ground is substantive or procedural. Id. The “independent and adequate state law ground” applies to bar federal habeas when a state court declines to address a petitioner's federal claims because the petitioner failed to meet a state procedural requirement. Id. at 730. This rule also applies when a petitioner has deprived the state court of an opportunity to address his federal claims in the first instance because he has failed to meet the state's procedural requirements for presenting his claim. Id. at 732. Thus, when a petitioner fails to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims. Id. at 735, n.1.
Courts may excuse a procedural default and reach the merits of a claim only if the petitioner can show cause for the default and prejudice resulting therefrom or that a failure to consider the claims will result in a fundamental miscarriage of justice. Id. (quoting McNeill v. Polk, 476 F.3d 206, 211 (4th Cir. 2007)). This rule protects the state's interest in the finality of its judgments and promotes respect for the state-court system. Bostick v. Stevenson, 589 F.2d 160 (4th Cir. 2009) (citing Coleman, 501 U.S. at 750).
DISCUSSION
A. GROUND ONE (Ineffective Assistance of Counsel)
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel. Under Strickland, when a defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. 466 U.S. at 687-88. Further, the 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. Id. at 694. When the defendant asserts a claim of ineffective assistance of counsel after a guilty plea, the second prong of the Strickland test focuses on whether the defendant can show “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The Court stated:
In many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure
to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.Id. at 57-59 (internal citations omitted).
In support of Ground One, Petitioner asserted in his § 2254 petition:
My attorney advised me to enter a guilty plea based on informal meeting in Chambers with Solicitor and Judge indicating that I would receive a sentence of more than 7 years but significantly less than 15 years. Attorney failed to object [to] 16 year sentence. Attorney did not properly prepare a defense, and spent little time with applicant. Attorney failed to file a motion to suppress evidence after Applicant requested he do so.(Dkt. No. 1, 5.)
In his response to Respondent's motion for summary judgment, Petitioner states his grounds for ineffective assistance as follows:
1. My attorney advised me to enter a plea based on an informal meeting in chambers with the solicitor and judge. I was advised the judge gave an advance indication of sentencing, and that I would receive a sentence of more than seven, but less than fifteen years. My attorney advised me that I would likely receive eight or nine years. At the plea, the judge sentenced me to sixteen years for trafficking, and five years for firearm possession. The sentence did not conform with the judge's advanced indication. My attorney did not object, or move for reconsideration or withdrawal of the plea contemporaneously, or within 10 days after sentencing.
2. My attorney did not properly prepare my defense, and spent little time with me until he advised me I needed to plead guilty or the solicitor would call the case to trial. I had asked for copies of the discovery and they were not provided to me. I did not see or hear from my attorney for months, and only spoke with him briefly on the phone, after I'd call and ask to see him. I was told the State had not provided discovery, but later learned, when I finally did receive copies of some of the discovery, after sentencing that my attorney had in fact received discovery.
3. My attorney did not file a motion to suppress evidence, although he had
grounds to do so, and I requested that he do so.(Dkt. No. 73, 5.)
Respondent first argues that Petitioner fails to present valid reasons why he should be allowed to depart from the truth of his statements made under oath at the plea hearing. (Dkt. No. 42, 20.) (citing Edmonds v. Lewis, 546 F.2d 566, 568 (4th Cir. 1976)). The undersigned agrees. Petitioner affirmed to the trial judge that he understood the possible penalties for his offenses, that no one had promised him anything to make him plead guilty, and that he was satisfied with plea counsel and had no complaints to make to the judge. A defendant “may not so easily shed the facts that he previously assured the Court, under oath, were true.” United States v. Zinner, Criminal Case No. 4:17cr003 (RCY), 2022 WL 820233, * 7 (E.D. Va. Mar. 17, 2022) (citing United States v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999) (“Entry of a plea is not some empty ceremony, and statements made to a federal judge in open court are not trifles that defendants may elect to disregard. A defendant has no legal entitlement to benefit by contradicting himself under oath.”)).
Respondent also recites that the PCR judge found plea counsel's testimony to be “very credible regarding how many times he met or spoke with Petitioner prior to his plea, what the inchambers conversation with the judge consisted of, plea counsel's instructions to Petitioner regarding what his sentencing exposure would be were he to plead guilty, plea counsel's investigation and analysis of any motions to suppress and any defenses, and plea counsel's testimony that he believed pleading guilty was in Petitioner's best interests.” (Dkt. No. 42, 21.)
In response, Petitioner contends that the PCR judge erred in failing to give weight to Petitioner's testimony that a plea agreement had been effected during the in-chambers meeting between the trial judge, plea counsel, and the solicitor. Petitioner cites to Jordan v. South Carolina, 374 S.E.2d 683 (S.C. 1988); Thompson v. South Carolina, 531 S.E.2d 294 (S.C. 2000); and Smith v. South Carolina, 775 S.E.2d 696 (S.C. 2015), as dispositive. In Jordan, the defendant agreed to plead guilty only if the solicitor recommended probation. The solicitor agreed to neither recommend nor oppose a probationary sentence. However, at the guilty plea hearing, a different solicitor vigorously opposed probation. The supreme court found trial counsel's performance was ineffective for failing to draw the trial judge's attention to the plea bargain and then failing to move to withdraw the prisoner's guilty plea. In Thompson, the solicitor agreed to not make any specific recommendations for the length of the defendant's sentence. However, at the plea hearing, the solicitor recommended the maximum sentence in violation of the plea agreement. Trial counsel did not object, and, when queried by the trial judge, stated that the solicitor had correctly and completely stated the plea negotiations. The supreme court, applying the analysis in Jordan, found trial counsel's performance to be deficient. Finally, in Smith, the supreme court found deficient performance when trial counsel failed to object to the solicitor's recommendation that the defendant receive maximum punishment after the solicitor promised to remain silent during sentencing.
Thompson, Jordan, and Smith do not support Petitioner's argument because no plea agreement existed. The PCR judge found credible plea counsel's testimony that he reported the trial judge's remarks to Petitioner, but told Petitioner the comments were in no way a promise. Moreover, the PCR judge observed that Petitioner had averred at the plea colloquy that no one had promised him anything in exchange for his plea. Absent clear and convincing evidence to the contrary, a defendant is bound by the representations he makes under oath during a plea colloquy. Fields v. Attorney General, 956 F.2d 1290, 1299 (4th Cir. 1992) (citing Blackledge v. Allison, 431 U.S. 63, 74-75 (1977); Little v. Allsbrook, 731 F.2d 238, 239-40 n. 2 (4th Cir.1984).
Petitioner also argues the PCR judge erred in finding plea counsel's testimony credible that he had adequately prepared a defense and met with Petitioner a sufficient number of times. Petitioner contends he did not meet with plea counsel for several months before learning his case had been added to the trial roster. He also states that plea counsel was not prepared to address the testimony offered by Petitioner's wife and the law enforcement officer at the plea hearing. Petitioner contends that plea counsel's belief a motion to suppress would not have been successful was speculative. According to Petitioner, plea counsel's failure to prepare and meet with him forced Petitioner to make a hasty decision regarding whether to go to trial or enter a guilty plea. (Dkt. No. 73, 17.)
Petitioner argues that plea counsel's performance failed to meet American Bar Association standards for criminal practice with respect to preserving the record, interviewing the client, keeping the client informed and advised about the representation, and memorializing plea agreements and other negotiated dispositions. (Dkt. No. 73, 18-19.) Petitioner concedes that he is not challenging his guilt or innocence in his § 2254 petition. Rather, he is challenging that he was rightly counseled and treated justifiably in his plea hearing. According to Petitioner, he is “actually innocent” of the driving under the influence charge because he was not intoxicated and the charge was dismissed in municipal court. Petitioner contends that, because the driving under the influence charge was dismissed, the search of his vehicle was unlawful. (Dkt. No. 73, 21.)
As noted above, the PCR judge found credible plea counsel's testimony that he met with Petitioner on a number of occasions and that he was prepared to try the case, but there was no successful defense to be argued. Courts “must be ‘especially' deferential to the state PCR court's findings on witness credibility.” Elmore v. Ozmint, 661 F.3d 783, 850 (4th Cir. 2011)(quoting Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010)). The undersigned discerns nothing in the record to support a conclusion that the PCR judge's credibility findings were clearly erroneous. Moreover, Petitioner has produced no exculpatory evidence or other evidence that would have led plea counsel to change his recommendation as to the plea.
The undersigned recommends a determination as to Ground One that Petitioner has not rebutted the PCR judge's findings of fact by clear and convincing evidence or shown prejudice, and that the PCR judge's analysis did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the PCR proceeding.
B. GROUND TWO (Involuntary Guilty Plea)
The due process clause requires guilty pleas be entered into voluntarily, knowingly, and intelligently. Anderson v. South Carolina, 535 S.E.2d 649, 651 (S.C. 2000) (citing Boykin v. Alabama, 395 U.S. 238 (1969)). Before a trial court can accept a guilty plea, a defendant must be advised of the constitutional rights he or she is waiving. Id. In South Carolina, a defendant entering a guilty plea must be aware of the nature and crucial elements of the offense, the maximum and any mandatory minimum penalty, and the nature of the constitutional rights being waived, in addition to the requirements of Boykin. Id. (citing cases). The trial court must be certain the defendant understands the charge and the consequences of the plea and that the record indicates a factual basis for the plea before a guilty plea may be accepted. Id. (citing State v. Armstrong, 211 S.E.2d 889 (S.C. 1975)); see also Fed. R. Crim. P. 11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
In his response to Respondent's motion for summaryjudgment, Petitioner essentially restates the allegations in Ground One, which the undersigned addressed substantively supra. Petitioner states briefly in his response to Respondent's motion for summary judgment that his guilty plea became involuntary when the trial judge sentenced outside of what he indicated in chambers, and plea counsel did not object or speak up to remind the judge that he was sentencing outside of his inchambers statements. (Dkt. No. 73, 4.) Respondent correctly asserts Petitioner did not raise the issue that PCR counsel was ineffective for failure to argue his plea was involuntary in his petition for writ of certiorari to the South Carolina Supreme Court, so that the claim has not been properly exhausted. Petitioner is procedurally barred from raising the issue of an involuntary plea either on direct appeal or in an ineffective assistance of counsel claim in state court. Consequently Petitioner's assertion that his plea was involuntary is procedurally defaulted in federal court. See S.C. App. Ct. R. 203(b) (“A notice of appeal shall be served on all respondents within thirty (30) days after receipt of written notice of entryof the order or judgment.”); S.C. Code Ann. § 17-2-45 (“An application for relief filed pursuant to [the Post-Conviction Relief Act] must be filed within one year after entry of judgment or within one year after the sending of the remittitur to the lower court from an appeal or filing of the final decision upon an appeal, whichever is later.”) The undersigned recommends a finding that Ground Two is not cognizable on federal habeas review because it is procedurally defaulted.
C. GROUND THREE (Ineffective Assistance of PCR counsel pursuant to Martinez v. Ryan )
In Martinez v. Ryan, 566 U.S. 1 (2012), an inmate contended in a § 2254 petition that he received ineffective assistance of plea counsel, but that his PCR counsel did not raise the ineffectiveassistance claim in the state collateral proceeding. The inmate argued that, because the state collateral proceeding was the first place to challenge his conviction on grounds of ineffective assistance of trial counsel, he possessed a constitutional right to an effective attorney in the collateral proceeding. Id. at 5. The Martinez Court acknowledged the general rule that there is no constitutional right to counsel in collateral proceedings, such that a defendant has no constitutional right to effective assistance of counsel. Id. at 9 (citing Coleman v. Thompson, 501 U.S. 722, 753-54 (1991)). However, the Court also observed that where the collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, “the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as to the ineffectiveassistance claim.” Id. at 11. The Court determined that, within the context of such a state procedural framework, a PCR counsel's ineffectiveness can qualify as cause for a procedural default. Id. at 13. Where the prisoner was represented by PCR counsel, the prisoner must demonstrate, in addition to the Strickland factors, that the underlying ineffective-assistance claim is substantial, “which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14. The Court ultimately held that, “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial, if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. at 17.
Petitioner contends PCR counsel was ineffective for (1) failing to submit a proposed order to the PCR judge on his behalf, (2) failing to include in the petition for writ of certiorari that Petitioner's guilty plea was involuntary, and (3) failing to argue plea counsel was ineffective for failing to perform any type of pretrial investigation. (Dkt. No. 1-3, 11.) Respondent argues Petitioner's claim is not cognizable on federal habeas review because Petitioner's claims do not implicate Petitioner's detention, but rather a claim collateral to detention. (Dkt. No. 42, 23.) (citing Lawrence v Branker, 517 F.3d 700, 717 (4th Cir. 2008) (“A state prisoner has no federal constitutional right to post-conviction proceedings in state court.”); Wright v. Angelone, 151 F.3d 151, 159 (4th Cir. 1998) (“[E]ven where there is some error in state post-conviction proceedings, a petitioner is not entitled to federal habeas relief because the assignment of error relating to those post-conviction proceedings represents an attack on a proceeding collateral to detention and not to the detention itself.”). Respondent also asserts that, even if the allegations of Ground Three were cognizable, the claims were not exhausted in state court because they were not included in Petitioner's petition for writ of certiorari when he appealed the PCR order. (Dkt. No. 42, 23-24.) Consequently, Ground Three has been procedurally defaulted. The question, however, is whether Martinez excuses the procedural default.
Petitioner's first two claims of ineffective assistance of PCR counsel fall under the holding in Coleman that there is no constitutional right to effective assistance of counsel in state PCR proceedings. Coleman, 501 U.S. at 756 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987), and Ross v. Moffitt, 417 U.S. 600 (1974)). Martinez does not aid Petitioner's position as to his first two allegations of ineffective assistance of PCR counsel.
As to Petitioner's contention that PCR counsel's performance was deficient for failing to argue plea counsel was ineffective for failing to perform any type of pretrial investigation, the undersigned recommends a finding that this claim is without merit, and therefore not substantial. Plea counsel testified at the PCR hearing regarding the actions he took to discover grounds for a defense, and the PCR judge found his testimony to be credible. In addition, as observed previously, Petitioner has failed to establish prejudice.
The undersigned recommends a determination that in Ground Three Petitioner has not rebutted the PCR judge's findings of fact by clear and convincing evidence, and that the PCR judge's analysis did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the PCR proceeding.
D. GROUND FOUR (Imprint of the Great Seal)
The South Carolina Constitution, art. 3, § 18 provides:
No Bill or Joint Resolution shall have the force of law until it shall have been read three times and on three several days in each house, has had the Great Seal of the State affixed to it, and has been signed by the President of the Senate and the Speaker of the House of Representatives: Provided, That either branch of the General Assembly may provide by rule for a first and third reading of any Bill or Joint Resolution by its title only.
Petitioner asserts that his conviction and sentence are unconstitutional because 1993 Act No. 184, which amended S.C. Code Ann. § 16-1-60 (defining violent crimes); 1995 Act No. 7, which amended S.C. Code Ann. § 16-11-330 (setting forth mandatory minimum terms); and 1996 Act No. 317, which amended S.C. Code Ann. § 16-3-20 (setting forth aggravating circumstances for murder of a witness) appear in the South Carolina Archives Department without either signatures or the Great Seal. Petitioner's argument mirrors the issues presented to the Administrative judge in his second PCR application.
Respondent argues that Ground Four is not cognizable because it raises a claim that is purely a matter of state law and does not implicate the Constitution or laws or treaties of the United States. Respondent further argues that Ground Four is procedurally barred and has not been properly exhausted. Finally, Respondent contends that Ground Four fails on the merits because of South Carolina Enrolled Bill Rule. (Dkt. No. 42, 24-25.) (citing Med. Soc. of S.C. v. Med. Univ. of S.C., 513 S.E.2d 352, 356-357 (1999) (“The enrolled bill rule provides that an Act ratified by the presiding officers of the General Assembly, approved by the Governor and enrolled in the Office of the Secretary of State is conclusively presumed to have been properly passed. Such an Act is not subject to impeachment by evidence outside the Act as enrolled to show it was not passed in compliance with law.”)).
Although Petitioner has not had the opportunity to exhaust his appellate remedies as to Ground Four, the undersigned recommends the claim be denied as procedurally barred because the Administrative judge denied his second PCR petition on procedural grounds. As a sister court recently explained:
To consider a claim in the first instance, a federal court must first ensure that the petitioner exhausted that claim in the state court system. 28 U.S.C. § 2254(b)(1)(A). But a successfully exhausted claim may nevertheless be deemed “procedurally defaulted” and barred from federal review if a state court denies that claim pursuant to an independent and adequate state ground. See Harris v. Reed, 489 U.S. 255, 259 (1989). And a federal habeas court may deem a claim not presented to the highest state court exhausted and barred from review “if it is clear that the claim would be procedurally barred under state law if the petitioner [belatedly] attempted to present it to the state court.” Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000).Secret v. Virginia, 1:19cv1386 (LO/TCB), 2020 WL 3490605, *4 (June 26, 2020).
CONCLUSION
For the reasons stated, the undersigned Magistrate Judge RECOMMENDS that Respondent's motion for summary judgment (Dkt. No. 42) be GRANTED, and that the court deny a certificate of appealability.
IT IS SO RECOMMENDED.
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 (4thCir. 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 835 Charleston, South Carolina 29402
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).