Opinion
2:22-cv-2391-TMC-MGB
07-13-2023
Susan Diane Hendricks, Petitioner, v. Warden of Graham (Camille Griffin) Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Susan Diane Hendricks, a state prisoner proceeding pro se, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. Nos. 1, 4-1.) This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 14.) Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the Petition and submit findings and recommendations to the United States District Judge. For the reasons set forth below, the undersigned RECOMMENDS that Respondent's Motion for Summary Judgment (Dkt. No. 14) be GRANTED.
BACKGROUND
Petitioner is currently housed in the Graham (Camille Griffin) Correctional Institution of the South Carolina Department of Corrections. In February of 2012, a Pickens County Grand Jury indicted Petitioner on four counts of murder and four counts of possession of a weapon during the commission of a violent crime. (Dkt. No. 13 at 1-2; Dkt. No. 13-1 at 137.)The charges arose from the fatal shooting of Petitioner's sons, ex-husband, and stepmother. (Dkt. No. 13 at 2). John Mauldin and Teal Johnson represented Petitioner on these charges. (Id.; Dkt. No. 13-1 at 138.)
This Report and Recommendation reflects the pagination assigned by the Court's automated docketing system.
On April 26, 2018, Petitioner pled guilty but mentally ill to the four murder indictments. (Dkt. No. 13-1 at 3-46.) The Honorable Letitia H. Verdin presided over Petitioner's guilty plea hearing. (Id.) In exchange for Petitioner's guilty pleas, the State dismissed the accompanying possession of a weapon charges. (Id.) After hearing testimony from a licensed clinical and forensic psychologist, Judge Verdin accepted the negotiated pleas and sentenced Petitioner to life without parole. (Id.)
On April 10, 2014, Petitioner filed a pro se “Notice of Intent to Appeal Pursuant to S.C.R.C.P. Rule 59(e) S.C.A.C.R. Rule 203,” “Motion for a Writ of Certiorari under Federal SCRCP Rule 59E,” and “The Appellant's Brief” with the South Carolina Supreme Court. (Dkt. No. 13-2.) On April 28, 2014, the South Carolina Supreme Court advised Petitioner that she should seek post-conviction relief (“PCR”) and dismissed her filings without prejudice. (Dkt. No. 13 at 2-3.) The remittitur was filed on May 14, 2014. (Dkt. No. 13-4.)
Petitioner filed a pro se application for PCR on April 16, 2014. (Dkt. No. 13-1 at 48-56.) In her PCR application, Petitioner alleged: (1) her attorneys were ineffective because they did not give her the help she needed; (2) she did not receive a mental evaluation at any facility other than the county jail; and (3) voluntarily intoxication. (Id.) The State filed its return on October 8, 2014. (Id. at 73-77.) Petitioner then retained Jeremy Thompson as PCR counsel. (Id. at 78-130.)
On April 21, 2016, the Honorable R. Knox McMahon held an evidentiary hearing to address the issues raised in Petitioner's application. (Id.) At the hearing, Petitioner's PCR counsel clarified that Petitioner had a single claim for relief: ineffective assistance of counsel rendering Petitioner's plea not knowingly and voluntarily entered for failure to explore a “not guilty by reason of insanity” defense. (Id. at 83.) After hearing testimony from Petitioner, her trial counsel, and a forensic psychologist, Judge McMahon took the matter under advisement. (Id. at 78-130.) Ultimately, the PCR court dismissed Petitioner's application with prejudice through a written order filed on August 8, 2016. (Id. at 137-45.) Petitioner did not appeal the PCR court's ruling.
On September 2, 2016, Petitioner sent a letter to her PCR counsel explaining that she “[did] not wish to go any further with an appeal on case 2014-CP-39-459 (File #14-0020-R).” (Id. at 161.) A little over six months later, on May 24, 2017, Petitioner filed a pro se notice of appeal with the South Carolina Supreme Court. (Id. at 146.) The South Carolina Supreme Court dismissed Petitioner's notice of appeal as untimely in a written order dated June 19, 2017. (Id. at 171.)
On August 30, 2017, Petitioner filed a second PCR application. (Id. at 147-53.) This second PCR application alleged that “PCR counsel was ineffective for failing to file an appeal and [Petitioner] should receive a belated PCR appeal pursuant to Austin v. State.” (Id.) Petitioner then retained Don A. Thompson as PCR counsel. (Id. at 169.)
On November 19, 2018, the State filed a return and motion to dismiss. (Id. at 154-62.) In its motion, the State argued that Petitioner voluntarily waived her right to an appeal in the letter to her prior counsel, and that Petitioner's application was nonetheless barred by the statute of limitations. (Id.) On November 26, 2018, the PCR court filed a Conditional Order of Dismissal finding that Petitioner voluntarily waived her right to appeal and that she was not entitled to belated appellate review. (Id. at 163-67.) Petitioner filed a reply and objection to the Conditional Order of Dismissal on January 22, 2019. (Id. at 168-69.) The PCR court entered a Final Order of Dismissal on February 11, 2019, noting that the record before it refuted Petitioner's allegations. (Id. at 173-76.)
On August 30, 2019, Petitioner's appellate counsel, Taylor Gilliam, filed a Petition for Writ of Certiorari challenging the PCR court's denial of belated appellate review. (Dkt. No. 135.) The State filed its return on January 6, 2020. (Dkt. No. 13-6.) Pursuant to Rule 243(1) of the South Carolina Appellate Court Rules, the Petition for Writ of Certiorari was transferred to the South Carolina Court of Appeals for consideration. (Dkt. No. 13-7.) The Court of Appeals denied certiorari through an Order filed on August 11, 2021. (Dkt. No. 13-8.) The remittitur was issued on September 8, 2021. (Dkt. No. 13-9.) It was filed with the Pickens County Clerk of Court on September 10, 2021. (Id; Dkt. No. 13 at 5.)
Petitioner filed the instant pro se habeas Petition on July 25, 2022. (Dkt. No. 1.) In her Petition, she raises the following ground for relief (verbatim):
| Ground One: | Ineffective Counsel |
| Supporting Facts: | I should have been assessed as Not Guilty by Reason of insanity. I seek to be granted possibility of parole. I should have had an IQ test performed before sentencing that could have made a difference. My IQ is 82 (noted in attachment). I feel I was demon possessed-attorney and Dr. Schwartz-Maddox declared I was NOT DEMON POSSESSED AND REFUSED TO PRESENT. Previous head injury should have been presented. Attorney Thompson hired a Doctor Maddox that testified against me. She shouldn't have been used. |
After requesting and receiving extensions of time, Respondent filed its Return and Motion for Summary Judgment on December 7, 2022. (Dkt. Nos. 13, 14.) Petitioner received multiple extensions of time to file her Response to the Motion for Summary Judgment. (Dkt. Nos. 18, 22, 24, 27.) She ultimately filed her Response on May 18, 2023. (Dkt. No. 29.) Respondent replied on May 25, 2023. (Dkt. No. 30.) Accordingly, the Motion before the Court has been fully briefed and is ripe for habeas review.
LEGAL STANDARD
I. Summary Judgment
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); see also Rule 12, Rules Governing § 2254 Cases (stating courts may apply in habeas cases any of the Federal Rules of Civil Procedure to the extent they are not inconsistent with statutes or the § 2254 rules). “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)). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). 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.” The News & Observer Publ'g Co., 597 F.3d at 576 (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).
II. Habeas Standard of Review
Habeas corpus in federal court exists to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation and internal quotation marks omitted). Federal habeas is neither an alternative to state-court relief nor an additional chance to appeal erroneous state-court rulings. See id. That preference for, and deference to, state courts is borne out in the various constraints placed on federal courts. See Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (stating § 2254 “imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases”); see also Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (stating § 2254 “reflect[s] a presumption that state courts know and follow the law” (citation and internal quotation marks omitted)).
Since the Petitioner filed her petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of her 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). “[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 86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Federal courts must also defer to state courts' factual determinations, which are presumed correct until the prisoner rebuts that presumption with clear and convincing evidence. § 2254(e)(1).
In addition, before state prisoners may try to clear those high hurdles, two rules steer them to first pursue all relief available in the state courts. See § 2254(b)(1). The first, known as exhaustion of remedies, requires a prisoner to present her claims to the highest state court with jurisdiction to decide them. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). A federal court cannot grant a prisoner's habeas corpus petition until she exhausts her state-court remedies. § 2254(b)(1), (c). The second rule, called procedural default, comes into play when a prisoner failed to present a claim to the state courts at the appropriate time and has no means of doing so now. Stewart, 701 F.Supp.2d at 790. Federal courts may not consider a procedurally defaulted claim unless the prisoner shows either that she has cause for defaulting and that the alleged violation of federal law prejudiced her or that not addressing the claim would be a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In considering whether Petitioner should receive habeas relief under these standards, the undersigned has carefully considered the record before the Court.
DISCUSSION
Respondent contends that: (1) the instant Petition is barred by the one-year statute of limitations imposed by the AEDPA; (2) Petitioner cannot show she is entitled to equitable tolling; (3) most of Petitioner's ineffective assistance of counsel claims are not cognizable for federal habeas review; and (4) any claims that are cognizable are procedurally defaulted. (Dkt. No. 13 at 1.) For the reasons set forth below and in light of the deferential standard set by the AEDPA, the undersigned RECOMMENDS that Respondent's Motion for Summary Judgment (Dkt. No. 14) be GRANTED.
I. Statute of Limitations
Pursuant to the AEDPA, a person “in custody pursuant to the judgment of a State court” and who seeks federal habeas relief is subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The one-year period to file a § 2254 petition commences upon the latest of the following dates:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.§ 2244(d)(1)(A)-(D). Here, the AEDPA's one-year statute of limitations began running at the “conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment of conviction therefore became final “when [her] time for seeking review with the State's highest court expired.” Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)). The one-year period to file a § 2254 petition, however, is tolled during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
Even if the limitations period is not tolled under the statute, a § 2254 petition may nevertheless be considered timely if the petitioner can demonstrate that she is entitled to equitable tolling of the limitations period. The Supreme Court recognized that the limitations period may be equitably tolled if a petitioner shows (1) she has been diligently pursuing her rights and (2) some extraordinary circumstance stood in her way, preventing her from timely filing her habeas petition. Holland v. Florida, 560 U.S. 631, 649 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Therefore, “specific circumstances . . . could warrant special treatment in an appropriate case.” Id. at 650. The Fourth Circuit has nevertheless cautioned that the application of equitable tolling should “be guarded and infrequent,” and “reserved for those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
Here, the undersigned recommends granting Respondent's Motion for Summary Judgment because the instant Petition is barred by the statute of limitations. Petitioner did not timely file this Petition within the one-year limitations period outlined in § 2244(d)(1)(A), and she is not entitled to equitable tolling.
Petitioner's conviction and sentence were entered on April 26, 2013. (Dkt. No. 13-1 at 347.) Petitioner then had ten (10) days to file a notice of appeal. She did not file a notice of appeal within that time, so the AEDPA's one-year statute of limitations began to run upon the expiration of those ten (10) days. On April 16, 2014, Petitioner filed her PCR application, which tolled the statute of limitations. (Id. at 48-54.) Prior to that date, three hundred and forty-four (344) days had elapsed against the statute of limitations, leaving Petitioner just twenty-one (21) days within which to timely file a federal habeas petition after the statute of limitations resumed.
Although Petitioner filed a pro se “Notice of Intent to Appeal Pursuant to S.C.R.C.P. Rule 59(e) S.C.A.C.R. Rule 203,” “Motion for a Writ of Certiorari under Federal SCRCP Rule 59E,” and “The Appellant's Brief” with the South Carolina Supreme Court on April 10, 2014, her filings were untimely and impermissible. Thus, they did not toll the statute of limitations. However, even assuming that these filings did toll the statute of limitations, only six days would be added to the time within which Petitioner could timely file her Petition.
On August 8, 2016, the PCR court filed an Order of dismissal. (Id. at 137-45.) Petitioner then had thirty (30) days to appeal the Order. Instead of filing an appeal, Petitioner informed her PCR attorney that she did not wish to pursue an appeal. (Id. at 161.) Because Petitioner did not appeal the PCR court's Order within thirty (30) days, the statute of limitations began to run again when those thirty (30) days expired. The one-year statute of limitations expired twenty-one (21) days later. Assuming, in an abundance of caution, that Petitioner received the PCR court's Order on the same day she wrote the letter to her attorney-September 2, 2016-the statute of limitations began to run again in early October 2016 and expired later that month. (Id.)
Despite her letter to her attorney and the expiration of the time within which Petitioner was permitted to appeal the PCR court's Order, Petitioner filed an appeal of the PCR court's decision on May 24, 2017. (Id. at 146.) The PCR court dismissed Petitioner's appeal as untimely on July 12, 2017. (Id. at 171.) Petitioner then filed a second PCR application on August 30, 2017, claiming that her PCR counsel for her first application failed to preserve her PCR appeal. (Id. at 147-53.) The PCR court found Petitioner's claim that her original PCR counsel had failed to preserve her appeal unconvincing, explaining that “the record conclusively refute[d]” such claim. (Id. at 166.) Upon conclusion of the PCR proceedings on this issue, a remittitur was filed on September 10, 2021. (Dkt. No. 13-9.) Nonetheless, Petitioner did not file the instant Petition until July 20, 2022, well after the applicable statute of limitations had expired, even under the most liberal construction.Accordingly, the Petition is untimely. (Dkt. No. 13 at 11.)
“South Carolina district courts have offered varied opinions on whether (1) the decision date, (2) the remittitur date, or (3) the date of receipt of the remittitur controls for purposes of calculating the statute of limitations. Brown v. Warden of Perry Corr. Inst., No. 5:22-cv-352-HMH-KDW, 2022 WL 17559867, at *5 (D.S.C. Nov. 21, 2022), adopted, 2022 WL 17555509 (D.S.C. Dec. 9, 2022) (referencing Smith v. Warden, Lieber Corr. Inst., No. 4:13-cv-3090-BHH, 2014 WL 5503529, at *6 (D.S.C. Oct. 30, 2014); Johnson v. Warden, Lee Corr. Inst., No. 2:14-cv-0768 DCN, 2015 WL 1021115, at *9 (D.S.C. Mar. 9, 2015); Beatty v. Rawski, No. 1:13-cv-3045-MGL-SVH, 2015 WL 1518083, at *2-6 (D.S.C. Mar. 31, 2015)). Out of an abundance of caution, the undersigned has used the latest possible date here.
Petitioner does not contest that her Petition is untimely, nor does she argue that she is entitled to equitable tolling such that the untimely filing can be excused. Petitioner has not shown that she was diligent in pursuing her rights or that some extraordinary circumstance stood in her way, preventing her from timely filing her habeas petition. “[E]quitable tolling is appropriate only when the government's wrongful conduct prevents a petitioner from filing a timely petition or when extraordinary circumstances beyond the petitioner's control make timely filing impossible.” Bogan v. South Carolina, 204 Fed.Appx. 160, 160-61 (4th Cir. 2006). The undersigned therefore recommends that equitable tolling is not justified in this instance, and that the Petition should be dismissed as untimely.
II. Ground One
Even assuming, arguendo, that the instant Petition was timely filed, it should still be dismissed. As noted, the Petition states just one ground for relief-ineffective assistance of counsel. (See generally Dkt. No. 4-1.) As support for Ground One, Petitioner claims that: (1) she “should have been assessed as Not Guilty by Reason of insanity”; (2) she seeks the possibility of parole; (3) she “should have had an IQ test performed before sentencing”; (4) her PCR counsel erred by failing to present evidence that Petitioner was “demon possessed” and by allowing expert witness testimony lending to a contrary conclusion; and (5) her PCR counsel should have presented evidence of her head injury. (Id. at 5.) However, each of these claims is either incognizable, procedurally defaulted, or meritless.
A. Incognizable Claims
For example, “the possibility of parole” is a requested remedy, not a ground of relief. Similarly, Petitioner's contentions that her PCR counsel provided ineffective assistance are not cognizable bases for federal habeas relief. Indeed, “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C.A. § 2254(i); see also Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008) (“[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.”).
B. Procedurally Defaulted Claim
As for Petitioner's claim that her trial counsel should have arranged an IQ test to determine whether she was competent to enter a plea or stand trial, this claim is procedurally defaulted. (Dkt. No. 13 at 14.) Although briefly described above, the undersigned finds a more in-depth summary of the doctrine of procedural default instructive here.
Courts often use the word “exhaustion” when defining “procedural default,” but under the law the doctrine of procedural default is separate from the exhaustion requirement in the habeas context. As to exhaustion, 28 U.S.C. § 2254(b)(1) requires that a petitioner exhaust her remedies in state court before a habeas petition may be granted. “In order to exhaust [her] collateral claims in state court, a South Carolina habeas corpus petitioner must pursue a direct appeal and/or file an application for relief under the South Carolina Post Conviction Procedure Act, SC Code Ann. §§ 17-27-10-160.” Chronister v. South Carolina, No. 2:08-cv-3194-HMH-RSC, 2009 WL 1444507, at *9 (D.S.C. May 20, 2009). In addition to fully pursuing the remedies available in state court, a petitioner must also have previously presented to the state courts the individual claims she wishes the federal court to review in the habeas action. If she has not properly presented the claim to a state court for adjudication, it is deemed procedurally defaulted. A claim is deemed procedurally defaulted if a state court has rejected it based on an independent and adequate state procedural rule. See Coleman v. Thompson, 501 U.S. 722, 729 (1991) (“The [independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.”). But also, “[i]f claims were not exhausted in state court but would now be procedurally barred if brought in state court, then federal courts can treat the claims as if they were procedurally defaulted in the state courts.” Clagett v. Angelone, 209 F.3d 370, 378 (4th Cir. 2000).
In Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004), the Fourth Circuit explained the policy behind the procedural default doctrine and also described what it means for a claim to have been properly presented to the state court:
[The] exhaustion requirement “reduces friction between the state and federal court systems by avoiding the unseem[liness] of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (internal quotation marks and citation omitted). Thus, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”-which includes “petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” Id. at 845. And this opportunity must be given by fairly presenting to the state court “both the operative facts and the controlling legal principles” associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). In other words, the ground must “be presented face-up and squarely.” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).Longworth, 377 F.3d at 448.
To overcome procedural default and have a claim considered by the federal habeas court, a petitioner must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
Here, Petitioner did not raise her claim that defense counsel should have arranged an IQ test to determine whether she was competent to enter a plea or stand trial as a ground for post-conviction relief, and there is no mention of this claim anywhere in the state court record. Because Petitioner never presented the claim in state court, it is procedurally defaulted. See Longworth, 377 F.3d at 448.
Further, Petitioner fails to articulate cause and prejudice for the procedural default, or to explain how this Court's failure to consider the claim would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750 (“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”). In fact, Petitioner does not address this claim at all in her briefings.
To the extent Petitioner could argue that this claim is not procedurally defaulted because her PCR counsel failed to file an appeal of the PCR court's decision on her first PCR application, this argument would be unconvincing. Indeed, the record before this Court reflects that Petitioner waived her right to an appeal when she sent a letter to her attorney stating “I'm writing to let you know that I do not wish to go any further with an appeal on case 2014-CP-39-459 File #14-0020-R. There is not any reason to visit me! Thank you very much for all of your help and for representing me in the past.” (Dkt. No. 13-1 at 161 (emphasis in original), 163-76; see also Dkt. Nos. 13-5, 13-6, 13-7, 13-8.)
Regardless, the record before the Court demonstrates that Petitioner was competent to enter her pleas of guilty but mentally ill. As Respondent correctly notes, the licensed clinical and forensic psychologist who testified at Petitioner's plea hearing after spending over forty hours with Petitioner and reviewing her medical records stated that: (1) she was competent to stand trial, (2) she knew the nature of the charges against her and the potential sentences, (3) she understood the roles of the officers of the court, and (4) she was able to communicate and cooperate with her legal counsel. (Dkt. No. 13 at 20; Dkt. No. 13-1 at 11.) Petitioner's trial counsel also testified that Petitioner understood their conversations, the nature of the charges against her, her potential sentencing, and her constitutional rights relating to her guilty plea. (Dkt. No. 13 at 21; Dkt. No. 13-1 at 27.) Petitioner's responses to Judge Verdin's questions during the hearing showed that Petitioner was aware of her plea deal, understood the negotiations in the case, and knew the roles of the attorneys present at the hearing. (Dkt. No. 13-1 at 28.) Thus, the record does not support a finding that Petitioner was incompetent.
C. Meritless Claim
To the extent Petitioner's remaining claim-that she “should have been assessed as Not Guilty by Reason of insanity”-can be construed as a claim that her trial counsel erred in advising her to plead “guilty but mentally ill” instead of “not guilty by reason of insanity,” this claim lacks merit. Under the Sixth Amendment, Petitioner, as a criminal defendant, had a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). Petitioner may prove ineffective assistance of counsel by showing that her attorney's performance was deficient, and that such deficiency prejudiced her. Id. at 687. An attorney's performance is deficient if it was unreasonable under the circumstances of the case and under then-prevailing professional norms. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Prejudice 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” means “a probability sufficient to undermine confidence in the outcome.” Kimmelman, 477 U.S. at 384.
Strickland is highly deferential to counsel, and § 2254(d) is highly deferential to state courts. Harrington, 562 U.S. at 105. That means when a state court has adjudicated an ineffective assistance claim on the merits, this Court's review is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In other words, the question becomes “not whether counsel's actions were reasonable,” but “whether there is any reasonable argument that [Petitioner's] counsel satisfied Strickland's deferential standard.” Harrington, 562 U.S. at 105.
Subsection 2254(d)'s standards are to be applied to the decision from the highest state court to decide the claim at issue on the merits. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). When the highest state court rules summarily, the federal habeas court should “look through” that unexplained decision to the last state-court decision that provides a relevant rationale, and “should then presume that the unexplained decision adopted the same reasoning.” Id. In this case, the PCR court was the only state court to issue a reasoned decision on this claim. As such, the undersigned considers the PCR court's reasoning in analyzing it.
Here, the PCR court considered Petitioner's assertion and found it unpersuasive. More specifically, the PCR court conducted an evidentiary hearing and considered testimony from Petitioner, a forensic psychologist, and Petitioner's trial counsel before determining that Petitioner “ha[d] not established any constitutional violations or deprivations that would require th[e] Court to grant [her] application for post-conviction relief.” (Dkt. No. 13-1 at 78-145.) The PCR court explained, in pertinent part:
Applicant has failed to show counsel was deficient in advising her to plead guilty rather than not guilty by reason of insanity. This Court finds, given the facts and circumstances of this case, that counsel's advice was objectively reasonable- particularly in light of the substantial benefit Applicant received as a result of the plea negotiations.
First, counsel was reasonable in relying on Dr. Price's expert opinion in determining an insanity defense was not viable.[] See Forsyth v. Ault, 537 F.3d 887, 892 (8th Cir. 2008) (counsel not ineffective for relying on expert opinion in structuring a defense of client). Counsel's testimony at the evidentiary hearing that he had no reason to doubt the accuracy of Dr. Price's opinion and evaluation of Applicant struck this Court as both logical and credible. Dr. Price, a licensed
psychologist, spent over 40 “face-to-face” hours with Applicant, and testified that while he believed she was unable to conform her conduct to the requirements of the law the night of the murders, Tr., p. 10, 1.3-4, Applicant was still able to distinguish between right and wrong. Tr., p. 22, 1.1-11; compare State v. Davenport, 301 S.C. 39, 389 S.E.2.d 649 (1990) (counsel ineffective for advising client to plead guilty where State's own expert diagnosed client as legally insane at time of crime).[]
Accordingly, Applicant has not presented any evidence that Dr. Price's work was suspect, or that should have reasonably put counsel on notice that he needed to consult with a different expert. Judging by the record and testimony from the evidentiary hearing, this Court finds none exists.
Applicant also derived substantial benefits from her negotiated plea. Applicant was facing a potential death sentence. Due to the circumstances of Applicant's crime-she murdered four people in roughly the same place at roughly the same time-she clearly met the statutory requirements for receiving the death penalty. S.C. Code §§ 16-3-20(9) (2010) (listing the murder of “[t]wo or more persons . . . by one act or pursuant to one scheme or course of conduct” as a statutory aggravating circumstance for the purposes of imposing the death penalty). Additionally, the sentencing sheets-signed by Applicant and her counsel-stated that the maximum penalty for each murder was death. By negotiating a life sentence, Applicant avoided the possibility of being executed.
Finally, by pleading guilty but mentally ill, Applicant was eligible for immediate treatment prior to being housed with general population of the Department of Corrections. S.C. Code § 17-24-70(A) (2015); see also State v. Curry, 410 S.C. 46, 54-55, 762 S.E.2d 721, 725-26 (Ct. App. 2014) (reversing lower court's decision not to charge guilty but mentally ill to the jury, even when judge included a recommendation for mental health treatment when it issued defendant's sentence). The testimony presented throughout the course of Applicant's evidentiary hearing and guilty plea transcript each indicate Applicant suffers from severe mental health problems. In fact, counsel testified that he requested and received state funding to retain a mental health professional solely for the purpose of treating Applicant prior to her eventual guilty plea or trial. This Court finds ensuring Applicant continued to receive mental health treatment- without a break in service-was an objectively reasonable goal in negotiations, and ultimately provide[d] Applicant with a substantial benefit....
Applicant has also failed to meet her burden to prove prejudice resulted from counsel's alleged deficiencies. To show prejudice for failing to pursue a defense of insanity, Applicant must produce some evidence of insanity or a showing that with the exercise of due diligence, an insanity defense could have been developed. Jeter v. State, 308 S.C. 230, 233-34, 417 S.E.2d 594, 596 (1992). Further, in order to show prejudice in the context of a guilty plea, Applicant must show a reasonable probability that, but for counsel's allegedly erroneous advice, she
would have insisted on going to trial. Hill v. Lockhart, supra. Applicant has failed to make such showings.
First, Applicant's lay testimony does not support an insanity defense.[] Lay testimony may be used to support a defense of insanity. State v. Lewis, 328 S.C. 273, 278, 494 S.E.2d 115, 117 (1997).[] It may also be used to establish sanity. Id. As in Lewis, Applicant did not testify or present any evidence that she was unable to distinguish between right and wrong, or unable to recognize her actions as wrong at the time of the offense. Instead, she testified at the evidentiary hearing that she was unable to remember any of the murders, and simply did not know whether she had the ability to distinguish between right and wrong when she committed them. There are also credibility problems with Applicant's testimony that she alternatively did not remember giving what Dr. Schwartz-Maddox described as “self-protective” statements to law enforcement-that one of the victims had committed suicide-and that she gave them because “that's what I thought happened.” This Court, in its fact finding capacity, agrees with Dr. Schwartz-Maddox's characterization, as she had the opportunity to make a full and thorough evaluation. Applicant's actions immediately following the murders speak louder than her testimony at the evidentiary hearing-accordingly, the latter is not credible.
This Court also finds there is not a reasonable probability that Applicant was actually insane at the time of the murders. Jeter, supra. As discussed above, Applicant has been evaluated by two qualified experts, both of whom determined that she was able to distinguish between right and wrong at the time of the murders based on her self-protecting actions and statements afterwards. As a result, this Court finds an insanity defense-even assuming Applicant was eligible-would have been unviable and an unreasonable risk given the circumstances of this case.
Applicant has also failed to meet the fundamental test for Strickland prejudice in the context of a guilty pela-that but for counsel's purported unprofessional errors, she would have refused to plead guilty and instead insisted on going to trial. The mere existence of some evidence of insanity does not definitively answer the question of whether Strickland prejudice occurred. See Jackson v. State, 355 S.C. 568, 586 S.E.2d 562 (2003) (finding counsel's failure to request self-defense charge, even where Applicant was entitled to one, not prejudicial where it did not affect the outcome of the trial).
This Court finds Applicant's testimony that she would have proceeded to trial had she been aware that she could have proven insanity by lay testimony is not credible. First, her testimony was thoroughly refuted by the credible testimony of counsel and the plea hearing transcript. Counsel testified that there was never any intention of going into a courtroom to contest the charges, and that she had enormous, almost crushing remorse about what happened. This is consistent with his statements at the guilty plea hearing. Plea Tr., p. 25, 1. 2-7. This Court also
takes into account the substantial benefits Applicant gained in pleading guilty, outlined above, in finding her testimony at the evidentiary hearing not credible. Accordingly, Applicant has failed to meet her burden to show prejudice.(Id. at 140-44.)
Where, as here, habeas claims are considered on the merits in state court proceedings, this Court must apply a highly deferential standard of review. See 28 U.S.C. § 2254(d). The Court may not grant relief unless a state court decision on the merits “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. That is not the case here.
To qualify as “contrary to” United States Supreme Court precedent, a state court decision either must arrive at “a conclusion opposite to that reached by [the United States Supreme] Court on a question of law” or “confront[ ] facts that are materially indistinguishable from a relevant [United States] Supreme Court precedent and arrive[ ] at a result opposite” to the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves an unreasonable application” of United States Supreme Court case law “if the state court identifies the correct governing legal rule from [the United States Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407. This Court must presume state court findings correct unless clear and convincing evidence rebuts them. 28 U.S.C. § 2254(e)(1).
Keeping in mind this deferential standard, the undersigned finds that the PCR court appropriately considered Petitioner's claim, provided an accurate interpretation of the facts in the record, and reasonably applied the law to those facts. The PCR court considered whether Petitioner's counsel was ineffective for failing to advise Petitioner to plead not guilty by reason of insanity. (Dkt. No. 13-1 at 140-44.) The PCR court determined that Petitioner's counsel had no basis on which to believe that Petitioner could be found insane, and that Petitioner would not have proceeded to trial, even if she had been aware that she could prove insanity by lay testimony. (Id.) In doing so, the PCR court considered expert opinions, testimony, and the plea hearing transcript. (Id.) The PCR court concluded that the plea hearing transcript and testimony from Petitioner's counsel refuted Petitioner's contentions. (Id.) For example, Petitioner's counsel testified at the plea hearing that Petitioner was relatively coherent and lucid during their many meetings, and that she was able to adequately assist counsel with her defense, albeit sometimes more than others. (Id. at 27.)
Further, the PCR court recognized that no psychological examiner found Petitioner to be legally insane. (Id. at 143.) Rather, her examiners noted serious mental illness, but concluded that Petitioner could determine right from wrong. (Id.)
Finally, the PCR court explained that Petitioner's actions leading up to the plea hearing did not indicate that she would have proceeded to trial, even if PCR counsel had advised her to plead not guilty by reason of insanity, and that Petitioner would have faced the death penalty had she done so. (Id. at 144.) Ultimately, the PCR court reasonably concluded that Petitioner could not show that her trial counsel's performance was deficient, nor that she was prejudiced. See Strickland, 466 U.S. at 687.
The undersigned finds no error in the PCR court's evaluation of the merits of Petitioner's claim, and Petitioner has submitted no meaningful argument as to how the PCR court's determination of this issue qualifies as legally or factually unreasonable. (See generally Dkt. Nos. 4-1, 29.) Such failure precludes relief in this Court. The undersigned therefore recommends that Respondent's Motion for Summary Judgment (Dkt. No. 14) be granted, and that the Petition be dismissed.
In Petitioner's Response to the summary judgment motion, she attempts to raise new arguments and grounds for relief that are not set forth in her Petition. However, “new matters cannot be raised in a response in opposition to a motion for summary judgment.” Sheftall v. Joyner, No. 8:17-cv-01955-TMC-JDA, 2018 WL 3949960, at *9 (D.S.C. May 17, 2018), adopted, 2018 WL 3933800 (D.S.C. Aug. 16, 2018). Further, these claims were not properly raised in state court and are therefore procedurally defaulted and, even if the Court were to consider Petitioner's new claims, they lack merit. For example, Petitioner contends that she was coerced into entering a plea deal because her trial counsel knew that she “had finally gotten a haircut and was in a good mood.” (Dkt. No. 29 at 2.) She also claims that her son and ex-husband “drugged [her]” on the night of the murders-a claim for which she provides no supporting evidence. (Id. at 3-4.)
Certificate of Appealability
If the Respondent's summary judgment motion is granted, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). The undersigned sees no reason to grant a certificate of appealability and would, therefore, recommend denying the certificate of appealability.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that the Court GRANT Respondent's Motion for Summary Judgment (Dkt. No. 14). The undersigned further RECOMMENDS that the Court DISMISS this case with prejudice and DECLINE to issue 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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 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).