Opinion
C/A No. 8:16-cv-03023-JMC-JDA
07-11-2017
Asherdon Fari Holloway, Petitioner, v. Warden Stevenson, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 15.] Petitioner, proceeding pro se, is a state prisoner who seeks relief under 28 U.S.C. § 2254. 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 post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on August 1, 2016. [Doc. 1.] On November 16, 2016, Respondent filed a motion for summary judgment and a return and memorandum to the Petition. [Docs. 14, 15.] The next day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 16.] Petitioner's responses in opposition were entered on the docket on February 17, 2017, and March 10, 2017. [Docs. 25, 36.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on August 1, 2016. [Doc. 1-1 (envelope stamped as received by prison mailroom on August 1, 2016).]
The Court notes Petitioner's second response in opposition repeats verbatim the arguments presented in his first response in opposition. [Compare Doc. 25 with Doc. 36.]
Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted.
BACKGROUND
Petitioner is presently confined in the South Carolina Department of Corrections at Broad River Correctional Institution pursuant to orders of commitment of the Sumter County Clerk of Court. [Doc. 1 at 1.] In February 2010, Petitioner was indicted for murder, attempted armed robbery, possession of a weapon during the commission of a violent crime, and assault and battery with intent to kill. [App. 21-24.] On February 16, 2012, represented by John C. Clark, Petitioner waived his right to a jury trial and pled guilty to murder, assault and battery with intent to kill, and attempted armed robbery. [App. 1-20.] He received a sentence of fifty years imprisonment for the murder conviction; twelve years imprisonment for the assault and battery with intent to kill conviction, to run consecutively to the murder sentence; and fifteen years imprisonment for the attempted armed robbery conviction, to run concurrently to the assault and battery with intent to kill sentence. [App. 19.]
The Appendix can be found at Docket Entry Number 14-1.
Direct Appeal
Petitioner filed a notice of appeal. [Doc. 14-2.] Robert M. Dudek ("Dudek") of the South Carolina Commission on Indigent Defense filed an Anders brief on Petitioner's behalf in the South Carolina Court of Appeals, dated April 3, 2013, raising the following issue:
A brief filed pursuant to Anders v. Cal., 386 U.S. 738 (1967), effectively concedes the appeal lacks a meritorious claim.
Whether the court erred by instructing appellant he had the right to appeal his guilty plea, since this led appellant to believe that this Court would review his guilty plea and could vacate the plea if it found the sentence unfair, or did not like the manner in which the guilty plea proceeding was held, since this offer of an appeal held out hope that appellant was getting appellate review of his sentence and the proceeding, and it consequently made this an impermissible conditional guilty plea?[Doc. 14-3 at 4.] At the same time he filed the Anders brief, Dudek submitted a petition to be relieved as counsel. [Id. at 10.] Although Petitioner was informed that he could file a pro se brief [Doc. 14-4], Petitioner did not file a pro se brief. The South Carolina Court of Appeals dismissed the appeal and granted Dudek's motion to be relieved in an opinion that was submitted on October 1, 2013, and filed on January 22, 2014. [Doc. 14-5.] Remittitur was issued on February 24, 2014. [Doc. 14-6.]
PCR Proceedings
Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on February 24, 2014. [App. 28-49.] Petitioner alleged he was being held in custody unlawfully based on the following grounds:
(a) ineffective assistance of counsel[App. 31.] More specifically, Petitioner framed the issues as follows, quoted substantially verbatim:
(b) involuntary guilty plea
(c) denial of due process
Issue (A) Was counsel ineffective for failing to object to the (50) fifty-year murder sentence that was handed down as being excessive, disproportionate, and as the result of passion and prejudice to properly preserve the issue for appellate review?
Issue (B) Was counsel ineffective for failing to ask that the consecutive sentences handed down by the court be ran concurrent since this was entirely in the discretion of the court?[App. 36-42.] The State filed a return, dated August 1, 2014. [App. 50-57.]
A hearing was held on October 2, 2014, and Petitioner was represented at the hearing by Lance W. Boozer. [App. 58-89.] On November 20, 2014, the PCR court filed an order denying and dismissing the PCR application with prejudice. [App. 90-98.] A notice of appeal was timely filed and served. [Doc. 14-7.]
Kathrine H. Hudgins ("Hudgins") of the South Carolina Commission on Indigent Defense filed a Johnson petition for writ of certiorari on Petitioner's behalf in the Supreme Court of South Carolina, dated August 11, 2015. [Doc. 14-8.] The petition asserted the following as the sole issue presented:
A Johnson petition is the state PCR appeal analogue to an Anders brief and effectively concedes the appeal lacks a meritorious claim. See Johnson v. State, 364 S.E.2d 201 (S.C. 1988).
Did the PCR judge err in refusing to find counsel ineffective in failing to move for reconsideration of the aggregate sixty two year sentence imposed?[Id. at 3.] At the same time she filed the Johnson petition, Hudgins submitted a petition to be relieved as counsel. [Id. at 9.] After being notified that he could file a pro se response [Doc. 14-9], Petitioner filed a pro se petition, dated August 28, 2015, alleging the following issues, quoted substantially verbatim:
(a) Whether petitioner was denied his Sixth Amendment right to counsel, where counsel failed to object, as well as failed to provide an effective argument in mitigation of the prospective sentence to be imposed?
(b) And whether the denial above deprive[d] the petitioner of any meaningful opportunity to appeal: for which the PCR court failed to address when dismissing Petitioner[']s PCR application?[Doc. 14-10 at 2.] The court denied the petition and granted counsel's request to withdraw on December 2, 2015 [Doc. 14-11] and remitted the matter to the lower court on December 18, 2015 [Doc. 14-12].
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on August 1, 2016. [Doc. 1.] Petitioner raises the following grounds for relief, quoted substantially verbatim, in his Petition pursuant to 28 U.S.C. § 2254:
GROUND ONE: Was counsel ineffective for failing to object to the murder sentence handed down is excessive, disproportionate, and result of passion and prejudice . . .
Supporting facts: After entering of guilty based on counsel's advice, the plea court sentenced petitioner (50) fifty years for murder, (12) twelve years consecutive for assault and battery w/intent to kill, and an additional (15) years concurrent for attempted armed robbery. Notwithstanding the disproportionate, excessiveness of the sentence, counsel failed to make timely objection for issue to be heard by appellate court, being preserved by objection to be heard in appellate court, to remand for lower court to correct.
GROUND TWO: Was counsel ineffective for failing to ask that the consecutive sentences handed down by court be ran concurrent since this was entirely discretion of court?
Supporting facts: After entering plea of guilty the plea court sentenced petitioner to (50) years for murder, (12) twelve years consecutive for assault and battery w/intent to kill, and (15) fifteen years concurrent for attempted armed robbery. Notwithstanding the appellate court's discretion
to address lower court's imposition of consecutive sentence for offense that arose out of one crime or continuous course of conduct, counsel failed to object to imposition of consecutive sentences to properly preserve for appellate review to be remanded on this ground for lower court to correct.[Doc. 1 at 5-7.] As stated, on November 16, 2016, Respondent filed a motion for summary judgment. [Doc. 15.] Petitioner's responses in opposition were entered on the docket on February 17, 2017, and March 10, 2017. [Docs. 25, 36.] Accordingly, the motion for summary judgment is ripe for review.
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) 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.
Habeas Corpus
Generally
Because Petitioner filed the 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 (1997); Breard v. Pruett, 134 F.3d 615 (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; or28 U.S.C. § 2254(d). "[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 v. Taylor, 529 U.S. 362, 410 (2000). "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," and "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 101 (2011). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(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.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment. S.C. R. Civ. P. 59(e). Failure to do so will result in the application of a procedural bar to that claim by the Supreme Court of South Carolina. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
In Bostick v. Stevenson, 589 F.3d 160 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007 decision in Marlar, South Carolina courts had not uniformly and strictly enforced the failure to file a motion pursuant to Rule 59(e) as a procedural bar. 589 F.3d at 162-65. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the Court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 17-27-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3), 243. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:
. . . [State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed, 468 U.S. at 10-11.
However, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with the state rule" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman, 501 U.S. at 735 n.1; Teague, 489 U.S. at 297-98; George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances—where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or where a "fundamental miscarriage of justice" has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of "cause," the court is not required to consider "actual prejudice." Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
DISCUSSION
Under the AEDPA, a federal court may not grant habeas relief unless the underlying state court decision was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court, id. § 2254(d)(2). The Supreme Court has held the "contrary to" and "unreasonable application of" clauses present two different avenues for relief. Williams, 529 U.S. at 405 ("The Court of Appeals for the Fourth Circuit properly accorded both the 'contrary to' and 'unreasonable application' clauses independent meaning."). The Court stated there are two instances when a state court decision will be contrary to Supreme Court precedent:
A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . . A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.Id. at 405-06. On the other hand, a state court decision is an unreasonable application of Supreme Court precedent when the decision "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08; see also Richter, 562 U.S. at 102 ("Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. . . . It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable."). Finally, a decision cannot be contrary to or an unreasonable application of Supreme Court precedent unless applicable Supreme Court precedent exists; without applicable Supreme Court precedent, there is no habeas relief for petitioners. Virsnieks v. Smith, 521 F.3d 707, 716 (7th Cir. 2008) (citing Lockhart v. Chandler, 446 F.3d 721, 724 (7th Cir. 2006); Simpson v. Battaglia, 458 F.3d 585, 597 (7th Cir. 2006)); see Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008).
In Ground One, Petitioner alleges plea counsel was ineffective "for failing to object to the murder sentence handed down as excessive, disproportionate, and result of passion and prejudice"; in Ground Two, Petitioner alleges plea counsel was ineffective "for failing to ask the consecutive sentences handed down by court be ran concurrent since this was entirely discretion of court." [Doc. 1 at 5-7.] The PCR court addressed these grounds together because they both address plea counsel's failure to object to the sentence. [App. 95-96.] This Court agrees with that approach and likewise addresses Petitioner's grounds together.
When evaluating a habeas petition based on a claim of ineffective assistance of counsel, assuming the state court applied the correct legal standard—the Supreme Court's holdings in Strickland—"[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Richter, 562 U.S. at 101. "A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Id.; see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (stating judicial review of counsel's performance is "doubly deferential when it is conducted through the lens of federal habeas"). Even if a state court decision questionably constitutes an unreasonable application of federal law, the "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." Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, in such situations, the habeas court must determine whether it is possible for fairminded jurists to disagree that the arguments or theories supporting the state court's decision are inconsistent with Supreme Court precedent. Id.
In Strickland v. Washington, the United States Supreme Court established that to challenge a conviction based on ineffective assistance of counsel, a prisoner must prove two elements: (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. 466 U.S. 668, 687 (1984). To satisfy the first prong, a prisoner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. To satisfy the second prong, a prisoner 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 692. The Court cautioned that "[j]udicial scrutiny of counsel's performance must be highly deferential," and "[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
In the specific context of a guilty plea, to satisfy the prejudice prong of Strickland, a prisoner must show that "there is a reasonable probability that, but for counsel's errors, [the prisoner] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). The Supreme Court further explained,
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. . . . As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the "idiosyncrasies of the particular decisionmaker." Id., 466 U.S., at 695, 104 S.Ct., at 2068.Hill, 474 U.S. at 59-60.
Here, the PCR court addressed plea counsel's performance under the standards set forth in Strickland and Hill v. Lockhart, 474 U.S. 52 (1985). [App. 94-96.] The PCR court found,
This Court finds Applicant's allegation that Plea Counsel was ineffective for failing to object [to] the plea judge's sentence to be without merit. Specifically, Applicant alleges that Plea Counsel should have objected to the fifty year sentence for murder and should have objected to the plea judge running the twelve year sentence for assault and battery with intent to kill consecutively. However, Applicant recalled and the plea transcript reflects, the plea judge advised Applicant that he was facing thirty years to life without parole for the murder charge and up to twenty years for the assault and battery with intent to kill charge. (Pl. t. p. 4). Furthermore, Plea Counsel stated he discussed the possibility of filing a motion for reconsideration with Applicant. However, Applicant never requested that he file the motion. This Court notes Applicant received a lawful sentence and Applicant is merely displeased by the decision of the plea court to give him consecutive sentences. Cf. Holden v. State, 713 S.E.2d 611, 617, 393 S.C. 565, 575-76 (2011) (citing Roddy v. State, 339 S.C. 29, 36, 528 S.E.2d 418, 422 (2000)) ("Wishful thinking regarding sentencing does not equal a misapprehension concerning the possible range of sentences, especially where one acknowledges on the record that one knows the range of sentences and that no promises have been made."). This Court finds Counsel's actions were reasonable in the circumstances, and did not fall below professional norms of reasonableness. Cherry[ v. State], 300 S.C. [115,] 117, 385 S.E.2d [624,] 625 [(1989)] (citing Strickland). Furthermore, this Court finds Applicant has failed to allege sufficient evidence to meet his burden of proving that he was prejudiced by Counsel's alleged ineffectiveness as Applicant received a lawful sentence.[App. 95-96.]
The PCR court's denial of Petitioner's ineffective assistance claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent. First, the PCR court applied the Strickland and Hill standards, which are the applicable Supreme Court precedents. Second, the record fails to demonstrate the PCR court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from the Supreme Court precedent. Thus, the Court concludes the PCR court's decision was not contrary to applicable Supreme Court precedent.
Further, the record supports the PCR court's decision, which demonstrates the PCR court's decision was not an unreasonable application of Strickland or Hill. During the plea colloquy, the plea court advised Petitioner that the murder charge carried a sentence of thirty years to life and was a no parole offense, meaning Petitioner would have to serve day for day, and that the assault and battery with intent to kill charge carried a sentence of twenty years and was an 85 percent offense. [App. 4.] Petitioner stated that he understood these sentences before he entered a guilty plea. [Id.] Moreover, at the PCR hearing, Petitioner stated that he understood that the plea court was not obligated to run the sentences concurrently. [App. 65-66.] When asked whether he felt there was any basis to object to the sentence, plea counsel testified, "It wasn't what I was hoping for, but I thought that it was a lawful sentence." [App. 79.] Plea counsel also testified that Petitioner never requested that counsel file a motion for reconsideration. [App. 85.] The PCR court found plea counsel's testimony to be credible [App. 94], and that determination is entitled to deference, Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) ("[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear." (citing 28 U.S.C. § 2254(e)(1))).
Although the PCR court's decision contains a factual inaccuracy [compare App. 96 ("Furthermore, Plea Counsel stated he discussed the possibility of filing a motion for reconsideration with Applicant." with App. 85 (". . . I don't know if we talked specifically about a reconsideration."], this statement is not a factual determination as to the claim as a whole. Moreover, the PCR court's statement that Petitioner never requested that plea counsel file a motion for reconsideration is supported by plea counsel's testimony. The PCR court's decision rests primarily on the determination that Petitioner received a lawful sentence, that plea counsel's actions were reasonable and did not fall below professional norms of reasonableness, and that Petitioner failed to establish he was prejudiced. [App. 96.] In any event, to the extent this factual inaccuracy establishes that the decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2), even giving no deference to the PCR court's decision and performing its own independent and de novo review of plea counsel's performance, for all the same reasons above, this Court concludes that Petitioner has failed to demonstrate that plea counsel's representation fell below an objective standard of reasonableness or that Petitioner was prejudiced, see Austin v. Plumley, 565 F.App'x 175, 184-85 (4th Cir. 2014) (explaining that when "the State Supreme Court's decision was based on an unreasonable determination of the facts" the federal court considers the claim "under a purely de novo standard, owing no deference to the State Supreme Court's decision"). Therefore, Petitioner is not entitled to habeas corpus relief based on Grounds One and Two, and Respondent's motion for summary judgment should be granted.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge July 11, 2017
Greenville, South Carolina
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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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).