Opinion
Case No. 2:19-cv-2658-JMC-MGB
03-20-2020
Jomer Hill, #264230, Petitioner, v. Levern Cohen and State of South Carolina, Respondents.
REPORT AND RECOMMENDATION
Jomer Hill is a pro se state prisoner seeking habeas corpus under 28 U.S.C. § 2254. Levern Cohen, Hill's warden, and the State of South Carolina have moved for summary judgment. (Dkt. No. 45). Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review it and submit a recommendation to the District Judge. For the following reasons, the undersigned recommends granting the motion and dismissing this action with prejudice.
Hill filed his petition using the form for 28 U.S.C. § 2241 habeas petitions. (See Dkt. No. 1.) For the reasons set forth in her October 31, 2019 order, the undersigned has determined the petition must be treated as arising under § 2254. (See Dkt. No. 9 at 1-2.) See In re Wright, 826 F.3d 774, 779 (4th Cir. 2016) ("[R]egardless of how they are styled, federal habeas petitions of prisoners who are in custody pursuant to the judgment of a State court should be treated as applications under section 2254." (internal quotation marks omitted)); cf. Garson v. Perlman, 541 F. Supp. 2d 515 (E.D.N.Y.2008) (analyzing habeas claim for bail pending appeal under § 2254).
BACKGROUND
Hill is serving fifty years in prison on two 2006 murder convictions. (Dkt. No. 1 at 3.) After the state Court of Appeals affirmed his convictions, see State v. Hill, 675 S.E.2d 764 (S.C. Ct. App. 2009), he unsuccessfully sought post-conviction relief in state court, see Hill v. State, 782 S.E.2d 414 (S.C. Ct. App. 2016). Hill then petitioned this Court for habeas corpus under 28 U.S.C. § 2254. The Court found his petition lacked merit and denied it. See Hill v. Cartledge, No. 2:16-cv-483-JMC, 2017 WL 892574 (D.S.C. Mar. 7, 2017).
In July 2019, Hill filed motions in his state-court criminal case seeking forensic DNA testing and a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). (Dkt. No. 1 at 4.) See S.C. Code Ann. § 17-28-40(B) (requiring that DNA testing applications be filed in the original criminal case). He also applied to be released on bond pending the resolution of those motions. (Dkt. No. 1-1 at 3, 9-11.) On August 5, 2019, the state circuit court denied Hill's bond application without explanation. It denied his Franks motion the next day. (Id. at 3; Dkt. No. 12-1 at 1). The DNA testing application is still pending. (See Dkt. No. 40-1 at 2; Dkt. No. 43.)
The docket may be viewed by searching for case numbers H884258 and H884259 on the Greenville County Public Index, https://www2.greenvillecounty.org/SCJD/PublicIndex. This Court may take judicial notice of information on government web sites. E.g., Tisdale v. S.C. Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 F. App'x 965 (4th Cir. 2009) (per curiam).
Hill has not appealed the denial of his bond application. (Dkt. No. 1 at 2.) Instead, he is challenging that denial in the § 2254 petition he has filed here. In other words, the object of his habeas petition is to obtain bond while he litigates the Franks motion and his DNA testing application in the state courts. Hill appears to be arguing the summary denial of bail was unconstitutional. (See Dkt. No. 1 at 1, 8; see also Dkt. No. 17 at 2.)
Respondents have moved for summary judgment. (Dkt. No. 45.) Hill has responded to the motion (Dkt. No. 48), making this matter ripe for adjudication.
LEGAL STANDARD
Summary judgment is appropriate only if the moving party shows that "there is no genuine dispute as to any material fact" and that he is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 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). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
DISCUSSION
Respondents contend Hill's petition lacks merit. (See Dkt. No. 44 at 14-16.) Their primary contention, however, is that the Court lacks jurisdiction over the petition. (Id. at 9-10.) Although the undersigned believes the Court has jurisdiction, she agrees the petition lacks merit.
I. Jurisdiction
As mentioned, Hill has already lost one § 2254 case. A habeas petitioner incarcerated pursuant to a state-court judgment cannot bring a "second or successive" motion for federal habeas relief without authorization from the appropriate court of appeals. 28 U.S.C. § 2244(b)(3). "Only in limited, statutorily prescribed circumstances will a court of appeals grant such authorization." In re Gray, 850 F.3d 139, 140 (4th Cir. 2017). The United States Court of Appeals for the Fourth Circuit has not given Hill permission to file the petition at issue. The question, then, is whether Hill's petition is "second or successive" under § 2244(b)(3). See id. (stating that if the petition is not "second or successive," the petitioner does not need permission to file it). Because that is a jurisdictional question, see United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003), the Court should answer it before addressing any other issues in this case.
Respondents contend Hill's petition is successive, but they do not explain why. (Dkt. No. 44 at 9.) The mere fact that the petition is Hill's second is not dispositive. See Panetti v. Quarterman, 551 U.S. 930, 944 (2007) ("The Court has declined to interpret "second or successive" as referring to all § 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior § 2254 application."). Thus, further analysis is needed.
The phrase "second or successive" in § 2244(b)(3) "is not-self defining," Panetti, 551 U.S. at 943, and Congress did not define it, Magwood v. Patterson, 561 U.S. 320, 331 (2010). The phrase "takes its full meaning" from Supreme Court decisions, Panetti, 551 U.S. at 944, and incorporates the traditional "abuse-of-the-writ doctrine" for habeas cases, Magwood, 561 U.S. at 334 (citing Panetti, 551 U.S. at 947) (Kennedy, J., dissenting). That doctrine comes into play when a prisoner files a petition "challenging an undisturbed state-court judgment for the second time." Magwood, 561 U.S. at 343 (Breyer, J., concurring in part and concurring in judgment). A claim raised in a subsequent habeas petitions is "abusive" if the prisoner could have asserted it when he filed his prior petition. In re Wright, 826 F.3d 774, 784 (4th Cir. 2016). "This principle 'is not confined to instances where litigants deliberately abandon claims; it also applies to instances where litigants, through inexcusable neglect, fail to raise available claims.'" Id. (quoting Noble v. Barnett, 24 F.3d 582, 585 (4th Cir. 1994)). If the subsequent petition contains an abusive claim, it is "second or successive" under § 2244(b)(3). See id. at 785.
Justice Kennedy wrote the majority opinion in Panetti.
Hill's current petition contains just one claim: unconstitutional denial of bond. That claim arose in August 2019, more than three years after Hill filed his first habeas petition and more than two years after this Court denied that petition. The claim therefore appears to not be abusive; the Warden has not offered any argument as to why it would be. Consequently, the petition is not second or successive, which means Hill did not need the Fourth Circuit's permission to file it. Thus, § 2244(b)(3) does not deprive the Court of jurisdiction over Hill's petition.
In his brief opposing summary judgment, Hill attempts to assert additional claims that directly attack the validity of his convictions. (See Dkt. No. 48 at 2.) It is well-settled in this district that new matters cannot be raised in a response to a motion for summary judgment. See White v. Roche Biomedical Labs., 807 F. Supp. 1212, 1216 (D.S.C. 1992). That rule applies to habeas cases. See, e.g., Neumon v. Cartledge, No. 8:14-cv-2256-RMG, 2015 WL 4607732, at *9 n.9 (D.S.C. July 31, 2015). The undersigned therefore recommends not addressing the claims Hill raises in his brief.
Alternatively, if the Court decides that the claims should be treated as part of Hill's habeas petition, it should dismiss the case for lack of jurisdiction; those claims would make Hill's petition successive; as discussed above, Hill does not have the Fourth Circuit's permission to file a successive petition.
II. Merits of Hill's Claim
Respondents raise several other arguments for why the Court should not reach the merits of this petition. (See Dkt. No. 44 at 11-16.) The Court need not address them, as Hill's claim ultimately lacks merit.
"Although federal courts can review state bail orders through habeas corpus . . . , federal intervention in this discretionary determination is rare." Lloyd v. Morgan, No. CV JKB-16-2159, 2016 WL 4474838, at *2 (D. Md. Aug. 24, 2016). Hill has not identified anything that makes this one of those rare moments to intervene, and the undersigned sees no reason to overrule the state court.
Hill appears to be attacking the state court's decision on the basis that the court gave no reason for denying his request. (See Dkt. No. 1 at 1, 8; see also Dkt. No. 17 at 2.) The Constitution does not require state courts to explain themselves when they deny bond requests. Jenkins v. Harvey, 634 F.2d 130, 132 (4th Cir. 1980). Although an explanation "is desirable," its absence does not warrant federal habeas relief so long as the record contains a rational basis for denying the request. Id. The materials before the Court reveal a rational basis: Hill is serving fifty years in prison for murdering two people, and he has lost all his prior challenges to those convictions. Those factors are sufficient for this Court to deny relief. Cf. Ragsdale v. South Carolina, 865 F.2d 1259 (4th Cir. 1989) (per curiam) (table) (finding "the seriousness of the offense for which Ragsdale was convicted" (criminal sexual conduct) and "the length of incarceration imposed for that conviction" (twenty-one years) "constituted a sufficient rational basis" for the state court's decision); Jenkins, 634 F.2d at 132 ("Jenkins' conviction of four conspiracies constitutes a sufficient rational basis to conclude that the courts of South Carolina did not abuse their discretion.").
Hill also argues he is entitled to relief under Wolfe v. Clarke, 819 F. Supp. 2d 574 (E.D. Va. 2011). (Dkt. No. 1 at 1, 8.) The undersigned disagrees. Wolfe involved a habeas petitioner who had already been granted a writ of habeas corpus; he was asking the district court to release him on bond while his case was on appeal at the Fourth Circuit. 819 F. Supp. 2d at 577. The facts of Wolfe thus differ greatly from Hill's circumstances; no court has ever granted Hill any relief.
In sum, although the Court has jurisdiction over Hill's petition, the undersigned believes that no material facts are in dispute and that Respondents are entitled to judgment as a matter of law on the merits. The undersigned therefore recommends granting their motion.
III. Certificate of Appealability
If the petition is dismissed, 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). Where a petitioner's constitutional claims are dismissed on procedural grounds, the petitioner must show both (1) that jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right, and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001). The undersigned does not see a basis for issuing a certificate in this case.
CONCLUSION
The undersigned recommends granting Respondents' motion and dismissing this case with prejudice.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE March 20, 2020
Charleston, South Carolina
The parties' attention is directed to the important notice on the next page.
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).