Opinion
C/A No.: 1:19-1862-TMC-SVH
10-28-2019
Henry Lee Kinlaw, Petitioner, v. Warden of Ridgeland, Respondent.
REPORT AND RECOMMENDATION
Henry Lee Kinlaw ("Petitioner") is an inmate at the Ridgeland Correctional Institution of the South Carolina Department of Corrections. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondents' return and motion for summary judgment. [ECF Nos. 11, 12]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by September 30, 2019. [ECF No. 13]. Petitioner filed a timely response. [ECF No. 15]. Respondent did not reply.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends granting Respondent's motion for summary judgment. I. Factual and Procedural Background
In May 2012, the Horry County Grand Jury indicted Petitioner for trafficking cocaine base, distribution of cocaine base, and trafficking cocaine. [ECF No. 11-1 at 398-403]. Russell B. Long, Esq., represented Petitioner on the charges. Id. at 3. On November 3, 2014, after jury selection and pretrial motions, Petitioner pled guilty to all three charges before the Honorable John C. Hayes, Circuit Court Judge. See id. at 69-76. Judge Hayes sentenced Petitioner to fifteen years' imprisonment on each charge, to run concurrently. Id. at 79-80. Petitioner did not appeal his conviction or sentence. [ECF No. 1 at 2-3].
On May 19, 2015, Petitioner filed his first pro se application for post-conviction relief ("PCR"). Id. at 83-128. Thereafter, Petitioner filed two amendments to his application and supplemental exhibits. Id. at 129-254. Petitioner's filings alleged his plea counsel was ineffective and his guilty plea was involuntary due to counsel's failure to: (1) move to dismiss his charges because the search warrant and accompanying affidavit did not support a finding of probable cause; (2) argue for suppression of evidence because the search warrant and subsequent search violated South Carolina Constitution Article I § 10 and the Fourth Amendment; (3) advise him of the plea offer's expiration date; (4) thoroughly investigate and conduct discovery; (5) file a direct appeal; (6) challenge the chain of custody; and (7) challenge the officers' use of a drug-sniffing dog. See id.
The State filed a return on February 18, 2015. Id. at 255. The Honorable Roger E. Henderson, Circuit Court Judge, held an evidentiary hearing on May 24, 2017, at which Petitioner was represented by Steven W. Fowler, Esq., and Petitioner and plea counsel testified. Id. at 262-358.
On August 10, 2017, the PCR Court denied and dismissed Petitioner's application, construing his claims as:
1. Ineffective assistance of counsel, in that:
a. Counsel failed to adequately prepare to argue his motion to suppress the search warrant;
i. "Failure to investigate, prepare for and motion to dismiss charges of distribution of crack cocaine; trafficking in crack-cocaine 28-100 grams; and trafficking cocaine 28-100 grams because arrest warrant and affidavit in support of was not supported by probable cause."
ii. "Arrest warrant was invalid and counsel should have objected to and motioned to dismiss warrant because of its invalidity."
iii. "Counsel was ineffective during his presentation regarding the suppression hearing. Counsel failed to investigate adequately prepare and thoroughly argue the suppression of the drug evidence."
iv. "Plea counsel's representation fell below an objective standard of reasonableness and prejudiced Kinlaw."
b. Counsel failed to communicate a plea offer of five
years;
i. "Defense counsel advised Kinlaw that the State would allow him to plead guilty to all charges for a five (5) year total sentence. Counsel did not inform Kinlaw when the plea offer expired."
ii. "Plea counsel's performance was deficient as it fell below 'an objective standard of reasonableness' when plea counsel failed to inform Kinlaw when the State's plea offer would expire."
c. Counsel failed to investigate the confidential informant;
i. "Failure to investigate the confidential driver, failed to do a supplemental Brady/Rule 5 motion, when five (5) days prior to trial, the State released the name of the confidential driver to counsel."
ii. "Failure to obtain confidential driver's criminal history and any and all information concerning his being a potential confidential informant and, if so, his credibility and reliability."
d. Counsel failed to investigate the traffic stop leading to the arrest of the individual who departed from the hotel searched;
i. "Counsel failed to obtain any and all surveillance videos and audio recordings and any video(s) of the traffic stop of the driver; and"
ii. "Counsel failed to obtain any agreement for driver for his/her cooperation and agreement to testify against Kinlaw."
e. "Counsel did not advise me that I had a meritorious State and Federal Constitutional claim and that if I
went on to trial, that I could challenge the trial judge's denial of suppression motion."
f. "Failure to file direct appeal."
i. "Instructed counsel to file an appeal. Counsel did not file direct appeal."
ii. "Failed to file an appeal or notice of intent to appeal the convictions and sentences in order to protect Kinlaw constitutional rights, therefore plea counsel was constitutionally ineffective and as a result Kinlaw was denied his only appeal as matter of right."
2. Involuntary Guilty Plea
Id. at 363-64 (errors in original).a. "Counsel coerce Kinlaw to enter a plea of guilty."
b. "Counsel's inaccurate advice and failure to thoroughly prepare for trial led to Kinlaw's guilty plea."
c. "Counsel advice to plead guilty was deficient, because Kinlaw had a valid legal challenge to the denial of the suppression motion on direct appeal."
d. "Kinlaw plead guilty because of deficient advice and lack of an alternative, and he did not do so voluntarily or knowingly."
Appellate Defender Robert M. Pachak, Esq., timely appealed through a Johnson petition for a writ of certiorari asking "[w]hether plea counsel was ineffective in failing to communicate to petitioner when a 5 year plea offer would expire." [ECF No. 11-2 at 3]. Petitioner filed a pro se response raising the following issues:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors of Anders v. California, 386 U.S. 738 (1967), to post-conviction appeals). Anders requires that counsel who seeks to withdraw after finding the "case to be wholly frivolous" following a "conscientious examination" must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
1. Whether plea counsel was ineffective in failing to investigate, failing to discover and failing to raise on a motion to suppress at the suppression hearing that petitioner arrest was an illegal arrest in violation of the 4th amendment of the U.S. Const. because arrest warrant M-971717 "Distribution of Crack Cocaine" and underlying affidavit in support of arrest warrant lacked probable cause?
2. Whether plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the arrest warrant M-971717 "Distribution of Crack Cocaine" because his arrest was an illegal arrest in violation of the 4th amendment of the U.S. Constitution because arrest warrant and underlying affidavit in support of arrest warrant lacked probable cause?
3. Whether plea counsel was ineffective in failing to adequately prepare, thoroughly argue the suppression of the drug evidence discovered as a result of the search warrant because plea counsel failed to discover and raise on a motion to suppress at the suppression hearing that the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant underlying affidavit set forth no facts as to why D.E.U. officers believed Petitioner committed the crime alleged in the search warrant affidavit Distribution of Crack Cocaine on Feb. 28, 2012, the crime Petitioner was arrested for on Feb. 29, 2012?
4. Whether plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the search warrant because the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because the search warrant underlying affidavit set forth no facts as to why D.E.U. officers believed petitioner committed the crime alleged in the search warrant affidavit "Distribution of Crack Cocaine" on Feb. 28, 2012 the crime petitioner was arrested for on Feb. 29, 2012?
5. Whether plea counsel was ineffective in failing to adequately prepare, thoroughly argue the suppression of the drug evidence discovered as a result of the search warrant because plea counsel failed to discover and raise on a motion to suppress at the suppression hearing that the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because the search warrant underlying affidavit does not contain any information to allow the magistrate to make an independent determination of the K-9 Jari's reliability to establish probable cause based on the alert?
6. Whether plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the search warrant because the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because the search warrant underlying affidavit does not contain any information to allow the magistrate to make an independent determination of the K-9 Jari's reliability to establish probable cause based on the alert?
7. Whether plea counsel was ineffective in failing to adequately prepare, thoroughly argue the suppression of the drug evidence discovered as a result of the search warrant because plea counsel failed to discover and raise on a motion to suppress at the suppression hearing that the
search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because in the search warrant underlying affidavit there was no independent verification of what transpired within the hotel on Feb. 28, 2012 during the officers surveillance and the day the unreliable confidential informant was arrested with .9 grams of crack-cocaine some miles away from the hotel?[ECF No. 11-3 at 6-13 (errors in original)]. The Supreme Court of South Carolina denied the petition for a writ of certiorari on January 25, and issued the remittitur on February 4, 2019. [ECF Nos. 11-4, 11-5]. II. Discussion
A. Federal Habeas Issues
Petitioner raises the following grounds in his federal petition for a writ of habeas corpus: Ground One: Involuntary Guilty Plea/Ineffective Assistance of Counsel because petitioner's guilty plea was not voluntary, knowingly or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to raise on a motion to suppress at the suppression hearing that petitioner's arrest was an illegal arrest in violation of the 4th amendment of the U.S. Constitution because arrest warrant M-917717 Distribution of Crack Cocaine and underlying affidavit in support of arrest warrant lacked probable cause.
Supporting Facts: Reviewing the underlying affidavit of arrest warrant M-971717 in Petitioner's case within the parameters set forth by U.S. Supreme Court precedents
concerning Fourth Amendment probable cause requirements, it is undisputed the underlying affidavit is insufficient to provide the magistrate judge with a substantial bases for which to find probable cause to issue the arrest warrant based on the following facial defects:
Ground Two: Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner guilty plea was not voluntary, knowingly o[r] intelligently entered as result of being denied the effective assistance of counsel and due process of law [in] violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the arrest warrant M-971717 "Distribution of Crack Cocaine" because his arrest was an illegal arrest in violation of the 4th amendment of the U.S. Constitution Ground Three: Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to discover an raise on a motion to suppress at the suppression hearing that the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant underlying affidavit set forth no facts as to why D.E.U. officers believed petitioner committed the crime alleged in the search warrant affidavit "Distribution of Crack Cocaine" on February 28, 2012 the crime petitioner was arrested for on February 29, 2012. Ground Four: Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly, or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the search warrant because the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant underlying affidavit set forth no facts as to why D.E.U. officers believed petitioner committed the crime alleged in the search warrant affidavit "Distribution of Crack Cocaine" on February 28, 2012 the crime petitioner was arrested for on February 29, 2012. Ground Five: Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly o[r] intelligently entered as [a] result of being denied the effective assistance of counsel and due process of law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution for a lack of probable cause specifically because the search warrant underlying affidavit does not contain any information to allow the magistrate to make an independent determination of the K-9 Jari's reliability to establish probable cause based on the alert. Ground Six: Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the search warrant because the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because the search warrant underlying affidavit does not contain any information to allow the magistrate to make an independent determination of the K-9 Jari's reliability to establish probable cause based on the alert. Ground Seven: Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly, or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to adequately prepare, thoroughly argue the suppression of the drug evidence discovered as [a] result of the search warrant because plea counsel failed to discover and raise on a motion to suppress at the suppression hearing that the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because in the search warrant underlying affidavit there was no independent verification of what transpired within the hotel on February 28, 2012 during the officers surveillance and day the unreliable confidential informant was arrested with .9 grams of crack-cocaine some miles away from the hotel. Ground Eight: Involuntary Guilty Plea/Ineffective assistance of counsel because the petitioner['s] guilty plea was not voluntarily, knowingly, or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel failed to discover and raise on a motion to suppress at the suppression heaing that the search warrant was invalid under Article I [§] 10 of the South Carolina Constitution and the 4th amendment of [the] U.S. Constitution because the search warrant affidavit contained misstatements which render the search warrant invalid under the analysis set forth in Franks v. Delaware, 483 U.S. 154 (1978). Ground Nine: Involuntary Guilty Plea/Ineffective Assistance of Counsel because petitioner['s] guilty plea was not voluntarily, knowingly, or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel failed to thoroughly research the documented evidence, and failed to inform applicant of a potential legal challenge because the chain of custody is defective. Ground Ten: Involuntary Guilty Plea/ Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly, or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution [because] plea counsel was ineffective in failing to communicate to petitioner when a 5 year plea offer would expire. [ECF No. 1-2 at 3-15 (errors in original)].1. The warrant is defective on its face because it does not set forth any facts to allow a magistrate to make an independent determination that there is probable cause to believe that a crime has been committed.
2. The warrant is defective on its face because it does not set forth any facts to allow a magistrate to make an independent determination that there is probable cause to believe that person to be arrested committed the crime.
3. The warrant is defective on its face because it does not set forth the source of the allegations in it.
4. The warrant is defective on its face because it does not set forth facts to establish that the source of the information in the affidavit is reliable.
5. The warrant is defective on its face because it does not set forth facts that the allegations in the affidavit were independently verified by D.E.U. officers or by the affiant Phillips.
B. Standard for Summary Judgment
Summary judgment is appropriate "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). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, "[o]nly 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." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act ("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; 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)(1)(2); see 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." Id. at 410. 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. 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 in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before 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.
a. 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.
(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.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR in the South Carolina courts. A PCR 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, 162-65 (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 been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. 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.
The United States Supreme Court has held that "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." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). 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)). That is to say, 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).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court "outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan." 559 S.E.2d at 854. As such, it is an "extraordinary" remedy under O'Sullivan, "technically available to the litigant but not required to be exhausted," Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals without more is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals.
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while
the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
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 v. Murray, 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), superseded by statute on other grounds (AEDPA).
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. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a "fundamental miscarriage of justice" has occurred. Murray, 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 which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of "cause," the court is not required to consider "actual prejudice." Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
4. Ineffective Assistance of Counsel
To prevail on his ineffective assistance of counsel claims, Petitioner must show (1) that his counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and the errors must be "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him "of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. That the outcome would "reasonably likely" have been different but for counsel's error is not dispositive of the prejudice inquiry. Rather, the court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Harrington, 562 U.S. at 104; Strickland, 466 U.S. at 694.
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 United States Supreme Court has cautioned that "'[s]urmounting Strickland's high bar is never an easy task[,]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Harrington, 562 U.S. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland "in tandem," making the standard "doubly" more difficult. Harrington, 562 U.S. at 105. In such circumstances, the "question is not whether counsel's actions were reasonable," but whether "there is any reasonable argument that counsel satisfied Strickland's deferential standards." Id. The unreasonableness of the state court determination must be "beyond any possibility of fairminded disagreement." Id. at 103. "If this standard is difficult to meet, that is because it was meant to be." Id. at 102. Section 2254(d) codifies the view that habeas corpus is a "'guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal." Id. at 102-03, (quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979)).
C. Analysis
Respondent asserts and Petitioner agrees that Grounds Eight and Nine are procedurally barred. [ECF No. 11 at 14-16; ECF No. 15 at 2]. Petitioner does not argue cause to excuse the default or otherwise address Grounds Eight and Nine in his response to Respondent's motion for summary judgement. [See generally ECF No. 15]. Accordingly, the undersigned finds Petitioner has abandoned Ground Eight and Nine. See Eady v. Veolia Transp. Servs., Inc., 609 F. Supp. 2d 540, 560-61 (D.S.C. 2009) ("The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.").
1. Grounds One Through Seven
In Ground One through Ground Seven, Petitioner asserts he pled guilty involuntarily because plea counsel failed to discover, argue, and inform him that the arrest and search warrants and supporting affidavits failed to establish probable cause because they failed to: (1) allege a crime was committed, (2) allege Petitioner committed the crime, (3) identify the source of the allegations, (4) establish the source of the allegations was reliable, (5) establish Drug Enforcement Unit ("D.E.U.") agents other than Agent Phil Phillips independently verified the allegations, (6) set forth why agents suspected Petitioner committed the alleged crime, (7) establish the reliability of a drug dog sniff, or (8) offer independent verification of what transpired at the hotel. [ECF No. 1 at 3-13; ECF No. 9 at 1-181]. Respondent maintains the PCR court reasonably applied applicable federal law and reasonably interpreted the facts in dismissing Petitioner's claims. [ECF No. 11 at 24-28].
During the suppression hearing, Agent Phillips testified he began investigating Petitioner in February 2012 after receiving a tip from a known confidential informant that a black male with the street name Gutter or Gunner was selling drugs at the Days Inn. [ECF No. 11-1 at 37-38]. The informant also told Agent Phillips the individual drove a blue Chevy Impala. Id. at 38. During pretrial motions, Petitioner agreed to the following facts, as recited by the State:
[T]he . . . D.E.U. is sitting outside the hotel where the Defendant is alleged to be staying and the . . . watches him for a couple of days . . . .
. . . .
[T]hey see his car in the parking lot, they run the plates, come back to Kinlaw. One of the agents will testify that he ID'd Kinlaw via the picture. They watched him for a number of days, they were on surveillance before they do anything. Once they see a lot of cars coming and going, and Mr. Kinlaw's car being the only one in the parking lot other than these cars coming and going, they determined we have suspicion of activity. At that point, Agent Phillips calls in other officers to help in surveillance. They make the decision to follow one of these vehicles that comes and goes, Keith Buffkin. He pulls up, he's by himself, he goes in the stairwell, he's in and out twenty or thirty seconds. Agent follow him . . . he commits a traffic violation, they pull him over. Agents approach him and explain to him who they are and why they're there, they say they're investigating narcotics activity, ask him if he has any drugs on him. He says, yes, I do, I bought them at the hotel . . . in the stairwell. They say, who did you buy them from, he says Gutter or Gunner, he has a nickname for him. They show him the DMV photo, he says that's him. The photo is Kinlaw. He goes on to say in his statement that he's bought from Kinlaw up to eighteen times, six by himself, twelve with somebody else. So, officers at that point - - he does give them the drugs, it is crack cocaine or presumed to be at that time, it does test positive a little bit later for crack cocaine. Agents respond to the magistrate the next morning to get a warrant for distribution of cocaine base. That day, they continue surveillance. While they're doing surveillance, one of the other agents just happens to be at the same gym as the Defendant. He calls the lead agent and says, hey, you're never gonna believe who is here, Kinlaw is here. He says, all right, let's go ahead and take him down today. All agents respond to the gym. Mr. Kinlaw is taken into custody at that time. A search is done of him, he has a key card in his pocket that goes to the Days Inn Motel. It doesn't say a room number on it. Agents read him Miranda and ask him if he wants to cooperate. He says, I don't know what you're talking about, I've never been
to that hotel. Agents respond immediately to the hotel, talk to the front desk and they say, yep, Kinlaw has been here, he's been staying here, he's in Room 205. Agents go up to Room 205, test the key and make sure it works, they don't open the door, it does match. They bring a drug dog who does alert on the door. With the information, with the tip, the tip corroborated the distribution and the key card. They get a search warrant as well as the drug dog hit. And in that hotel room, he has trafficking weight cocaine, trafficking weight crack cocaine, scales, baggies, razor blades, residue, money, the whole nine yards.Id. at 30-32.
Agent Phillips stated he provided the magistrate judge with these facts in seeking the search warrant and informed the judge Keith Buffkin was a cooperating witness, not a confidential informant. Id. at 52, 57-59.
Plea counsel moved to strike Agent Phillips's account of the information received from the confidential informant as hearsay and for dismissal or a continuance to allow him to investigate the informant. Id. at 39-40, 66. Plea counsel then moved to quash the search warrant for lack of probable cause and argued:
This search warrant was issued on a total stranger's statement that he purchased crack cocaine from Gutter. There's no reason to believe that person, that person had never been asked to tell the truth before, they'd never relied on that person before. There's no reason that that statement from that person would rise to probable cause to issue a search warrant on behalf of the Magistrate. Secondly, the Magistrate was told that Henry Lee Kinlaw was positively identified by Mr. Buffkin. Wells, Your Honor, . . . that's the most suggestive photo lineup I've ever heard of. They showed him one photo and said, is this him. . . . Then, lastly, Your Honor, the drug dog sniff . . . I believe we have the absolute right to have any evidence on the drug dog sniff excluded and therefore it shouldn't have not been included in
their request for probably cause by the Magistrate. . . . [T]he case of Florida v. Jardines, which came out in March of 2013, clearly suggests that drug dog sniffs on the exterior of an abode, a residence, an apartment, a hotel room, is a violation of the occupant or the owner or the tenant's constitutional rights.Id. at 60-62.
. . . .
[S]o, Judge, three major bases for the . . . search warrant. If you'll look at them each on their own, I believe that not only are they - - were the improper evidence collected, but they should not indicate probable cause, in fact, the opposite. We've got a total stranger that's got no reason . . . to believe, says Gutter did it. We've got an improper photo lineup that identifies Henry Lee Kinlaw and then we've got an improper drug dog sniff on the exterior of the hotel room door. Those were the major bases for the request for the search warrant. Based on that, Your Honor, I believe that the Magistrate should've found no probable cause and not issued a search warrant.
After considering argument from the State, the trial court found:
[S]howing someone a single photo by its nature is suggestive, standing alone it would be impermissibly suggestive. However, based on the facts relayed to the Court in this hearing, I find there's no substantive likelihood or substantial likelihood of irreparable misidentification based on the totality of the circumstances. I find affirmatively that the identification by Buffkin of Kinlaw is reliable even if suggested and I find the State has proven this by clear and convincing evidence. . . . I also find that the search warrant is on probable cause. The . . . identification of him . . . of the activity regarding the transaction with Kinlaw, the key card being found on Mr. Kinlaw, key card having worked the Room 205, having been ID'd by the owner or the manager . . . of the motel . . . with the confirmation by him that Kinlaw was the individual in that room or at least not in the room but - - Jardines does not fly. It is a front porch case. It talks about one's right of expectancy of privacy in their home or its curtilage and I find that the right of privacy does not extend to a Days Inn breezeway, walkway or hallway. So, I find there was
probable cause and I find that the warrant is based on probable cause and will not be - - the items seized will not be quashed.Id. at 64-66.
At the PCR evidentiary hearing, Petitioner explained his grounds for relief. Id. at 269-313. On cross-examination, Petitioner stated he met with plea counsel eight times prior to his plea. Id. at 313. He testified he and plea counsel discussed potential defenses, including possible challenges to the search warrant. Id. at 313-14. Petitioner admitted he waived all rights to challenge his charges or deficiencies related to pretrial motions when he pled guilty, but argued he could only waive defenses he knew of when he pled and plea counsel failed to tell him about these other potential defenses prior to his plea. Id. at 314-15. Petitioner agreed to the facts as recited by the State at the plea hearing. Id. at 317. Petitioner also acknowledged the motions plea counsel made, but continued to assert his should have challenged additional defects in the warrants. Id. at 318-20.
Plea counsel testified he met with Petitioner at least 12, maybe 20, times. Id. at 325. He stated he received discovery from the State and reviewed that discovery with Petitioner, but did not conduct additional investigation because Petitioner did not provide an alibi or identify alibi witnesses and there was not another party involved, so plea counsel felt there was not anything to investigate. Id. at 329. Regarding potential defenses, counsel testified:
. . . we spent a lot of time talking about what our pretrial issues were, explaining to him that if we lost our motions and if the judge allowed them to go forward with the trial itself, as soon as they called the first witness it was going to be real hard to get a jury to find him not guilty. So his entire case was really resting on what we were able to do in paring the case down at pretrial motions.Id. at 330-31. He recounted his arguments to the trial court concerning the warrant's reliance on an unreliable informant, faulty lineup, and invalid drug-dog sniff. Id. at 331-32.
Plea counsel indicated Petitioner decided to plead guilty after the judge denied all of counsel's pretrial motions and counsel advised Petitioner of weaknesses in his case and the potential sentence he would face if found guilty by a jury. Id. at 333-35. Plea counsel agreed he had found it strategically advisable during the course of practicing law to not "go into every detail and every possible argument under the sun but rather emphasize the strongest arguments available." Id. at 335. He elaborated, stating:
[Petitioner] raised the point that I should have objected to the search warrant because the search warrant referred to an unknown male with a street name Gunter, known as Henry Lee Kinlaw, Jr., and drove a 2008 Impala. His position today is that I should have argued that those were false statements. I had no idea, and in fact, those aren't false statements, those are true. Every bit of that is true.
His argument was that he didn't believe that the law enforcement officer presented those statements to the magistrate in a correct way. The circuit judge, the judge sitting on the bench was not going to dismiss or throw out that search warrant
because of those two motions. I never would have made those. I've never even thought about making those specific motions. They seemed sort of petty, and I didn't think we would get anywhere with them.Id. at 335-36.
On cross-examination, plea counsel agreed he did not challenge the reliability of the canine used in the search or the reliability of the arrest warrant. Id. at 346.
On re-direct, plea counsel testified he had no reason to believe the canine was old or had a bad sense of smell and that if he had challenged the canine's reliability, he believed "the officer would have testified more about the reliability of the canine. And the Court would have determined the canine to be reliable." Id. at 348.
After reciting the applicable legal standard governing claims of ineffective assistance of counsel and involuntary guilty pleas, the PCR court made the following findings:
The Court finds that Applicant has proven neither prong of Strickland through his allegation that Counsel failed to adequately prepare for his argument to suppress the search warrant for Applicant's hotel room. . . .
At the evidentiary hearing, Applicant testified to what he believed were deficiencies in the warrant for his arrest, such that there was not probable cause:
1) The warrant lacked sufficient facts to establish probable cause that a crime had been committed;
2) The warrant lacked sufficient facts to establish probable
cause that Applicant was the person who committed the crime;
3) The warrant did not specifically identify the source of the allegations;
4) The warrant did not contain any information to establish the reliability of the confidential informant;
a. The warrant was based on an unreliable confidential informant.
5) There was no independent verification of the facts in the arrest warrant.
Applicant additionally testified to what he believed were deficiencies in the search warrant permitting law enforcement to search his hotel room:
1) The warrant lacked sufficient facts to show why officer would believe a crime had been committed;
2) The warrant did not contain any information to establish the reliability of the confidential informant;
3) The warrant did not set forth facts to show that drugs were ever bought or sold from the hotel room;
4) There was no independent verification of the facts in the search warrant;
5) There were no facts to establish the reliability of the canine who alerted to the presence of illegal drugs;
6) The canine sniff was performed without a search warrant;
7) The warrant was supported by false statements and facts misrepresented by Officer Phillips:
a. The confidential information gave a nickname, "Gutter," not Applicant's legal name;
b. The warrant indicated that Applicant was hotel;
c. The drug transactions to support the warrant occurred in a stairwell near the room, not in the room itself;
d. The warrant indicated that the blue Chevrolet Impala was Applicant's vehicle;
e. The warrant indicated that crack was found on a confidential informant who bought it from Applicant;
f. The keycard found in Applicant's possession belonged to the room to be searched;
g. Law enforcement conducted a canine sniff of the room exterior.
Applicant testified to his belief that Counsel could have spent more time preparing for the motion to suppress and that, had he done so, Counsel could have raised each and every one of the above listed issues such that the warrants would have been suppressed. On cross-examination, Applicant conceded that Counsel argued to the court that the warrant was "based on a total stranger's statement," that the identification was based on "the most suggestive lineup [Counsel had] ever heard of," and that Counsel argued the drug dog sniff was invalid under Florida v. Jardines, 569 U.S. 1 (2013). Applicant further conceded that Counsel sought both a motion to dismiss based on the State's nondisclosure of the confidential informant's identity and, in the alternative, a continuance to further investigate the individual—both were denied.
Counsel testified that Applicant's entire case hinged on the outcome of the pre-trial motions to suppress the search and arrest warrants. Counsel reaffirmed his arguments made during the hearing on his motion: the warrants were based on information provided by total strangers; the photo "lineup" was the showing of a single photo of Applicant; and the drug dog sniff was constitutionally suspect pursuant to Jardines. Counsel testified to his belief that had he made the "less important" arguments and motions demanded by Applicant, that the proceeding would not have gone well. Counsel further testified that the statements in the warrants were all true, that he had no reason to believe them to be false, and that he did not know why Applicant claimed Officer Phillips made false statements. Counsel indicated Applicant was very involved with the law, but offered little to no facts to support his defense. Counsel's
testimony demonstrated thorough command of the facts of the case.Id. at 369-71.
The Court finds Counsel's testimony credible. Furthermore, the Court finds Applicant's testimony regarding the veracity of the information in the warrants not credible. Both the transcript and Counsel's testimony demonstrate that Counsel clearly, concisely, and effectively advanced the best available arguments against the validity of the warrants for Applicant's arrest and search of the hotel room. Counsel is not obliged to act as a conduit for every argument desired by his client, but must use his or her good judgment to communicate the best arguments available—Counsel did so. The Court concurs in Counsel's judgment that offering every argument provided by Applicant at the evidentiary hearing would have only hurt Applicant's case—"[l]egal contentions, like the currency, depreciate through over-issue. [. . .] Multiplicity hints at lack of confidence in any one." Jones v. Barnes, 463 U.S. 745 (1983) (quoting Jackson, Advocacy Before the Supreme Court, 25 Temple L.Q. 115, 119 (1951)). The Court finds Counsel was thoroughly prepared to argue the motion. Accordingly, Applicant's request for relief based upon this allegation is DENIED.
In addition, the PCR court found, although "Applicant claimed that he was not informed of the specific issues that would be raised in the suppression hearing and that he did not have a good understanding of his case," "Counsel consistently demonstrated command of the facts and law in this matter and his communication of as much with his client." Id. at 375. Further, the PCR court reasoned:
On cross-examination, Applicant conceded that Counsel did discuss possible defenses with him—namely that the search warrant was arguably invalid. Counsel testified that he timely received discovery and reviewed everything with his client, and that his client was very involved in the law of the case. Counsel
explained to Applicant all of his constitutional rights prior to the guilty plea. . . . Applicant is very clearly cognizant of his constitutional rights.Id.
Petitioner continues to argue at length that the arrest and search warrants were so obviously legally deficient so that no competent attorney would not have raised each specific defect at the suppression hearing. [See ECF No. 9 at 1-181]. He asserts he proved plea counsel's deficiency and the resulting prejudice by clear and convincing evidence through his PCR testimony and legal briefing and that plea counsel failed to articulate a valid trial strategy to account for his failure. Id. Thus, Petitioner contends the PCR court unreasonably applied Strickland and Hill in denying his PCR application. Id.
Essentially, Petitioner asserts plea counsel was ineffective, and the PCR court erred in finding otherwise, because counsel did not make every motion Petitioner would have made. That is not reason enough to set aside Petitioner's guilty plea.
In reviewing counsel's performance, the "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. "Attorneys exist to exercise professional judgment, which often involves setting priorities." United States v. Mason, 774 F.3d 824, 830 (4th Cir. 2014). "Indeed, it can be positively detrimental to a client's chances not to set priorities but rather to scattershot the case by raising every objection at trial and pressing every imaginable contention on appeal." Id. Thus, "[w]hen counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect." Yarborough v. Gentry, 540 U.S. 1, 8 (2003); See also Strickland, 466 U.S. at 690 (noting counsel is "strongly presumed" to make decisions in the exercise of professional judgment). "Rare are the situations in which the 'wide latitude counsel must have in making tactical decisions' will be limited to any one technique or approach." Richter, 562 U.S. at 106 (quoting Strickland, 466 U.S. at 689).
Based on the record and plea counsel's testimony at the PCR evidentiary hearing, the PCR court reasonably concluded counsel acted within the range of reasonable representation in declining to challenge the arrest warrant or to assert every potential defect in the search warrant. Counsel testified to the importance of pre-trial motions to Petitioner's case and indicated he did not present some of Petitioner's arguments because he found them "petty," but instead chose to assert other arguments that, in his professional opinion, had more merit. In doing so, counsel made exactly the type of tactical decision entitled to deference under Strickland. See Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998) ("The decision whether to file a pre- trial motion to suppress . . . is a classic tactical decision. Trial counsel has superior experience with the criminal process and detailed, objective knowledge of the strengths and weaknesses of the defendant's case. Trial counsel also is in a far better position to assess the meritoriousness of a pre-trial motion to suppress . . . .").
Petitioner also contends the PCR court misapplied Giordenello v. U.S., 357 U.S. 480 (1958), and Whiteley v. Warden, 401 U.S. 560 (1971), in finding plea counsel not deficient for failing to challenge the arrest warrant. Id. at 50. Girdenello and Whiteley address the probable cause standard for arrest warrants, not a claim of ineffective assistance of counsel for failing to challenge the warrant. See generally Giordenello, 357 U.S. at 480; Whiteley, 401 U.S. at 560. Accordingly, the PCR court's decision on an entirely different issue could not be "contrary to, or involve[] an unreasonable application of" Giordenello or Whiteley. See 28 U.S.C. § 2254(d); Bell v. Cone, 535 U.S. 685, 694 (2002) ("A federal habeas court may issue the writ under the 'contrary to' clause if the state court applies a rule difference from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts"); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (finding a state court ruling is "contrary to clearly established federal law, as determined by the Supreme Court of the United States" where the ruling "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law").
For these reasons, Petitioner fails to show the PCR court's decision unreasonably applied federal law or relied on an unreasonable determination of the facts in dismissing the claims Petitioner presents in Grounds One through Seven. Thus, the undersigned recommends granting Respondent's motion for summary judgment as to those grounds.
2. Ground Ten
In Ground Ten, Petitioner asserts plea counsel was ineffective for failing to communicate when the State would retract a five-year plea offer. [ECF No. 1-2 at 15-16; ECF No. 9 at 229-58]. Respondent maintains the PCR court reasonably denied relief on this claim. [ECF No. 11 at 28-33].
At the PCR hearing, Petitioner testified plea counsel informed him of the five-year plea offer in July 2014, but did not explain the specific details of the offer or tell him it was the State's final plea offer and would expire if he did not accept by a certain date. [ECF No. 11-1 at 310-11]. He stated he did not know the plea had expired until the week before trial. Id. at 311.
Plea counsel testified he and Petitioner had several conversations about the plea offer and that he thought it was a great offer and Petitioner needed to accept it, so he did everything he could to educate Petitioner about the offer and the likelihood of success if he proceeded to trial. Id. at 330-31. He testified he met with Petitioner multiple times and explained the strengths and weaknesses of his case. Id. at 329. Counsel recalled Petitioner did not provide much factual information and denied any wrongdoing. Id. at 330. Regarding whether he informed Petitioner of the details of the offer, counsel stated:
I can't sit here and tell you on blank day we had a conversation about the plea offer, and I explained to him that it was going to expire. But certainly he knew that when we were coming over here the following week on a Monday to draw a jury, that his plea offer was gone and he faced two 30-year felonies.Id. at 333. Counsel testified Petitioner explicitly rejected the offer. Id.
Plea counsel indicated Petitioner ultimately decided to pled guilty after the court denied the pretrial motions and he and Petitioner discussed the possibility of a lengthy sentence if he proceeded to trial. Id. at 334.
On cross-examination, plea counsel explained the State gave only a verbal offer that was never reduced to writing. Id. at 339-41. He stated the State verbally withdrew the offer at least one month before trial when counsel informed the solicitor Petitioner had rejected it. Id. at 341-42. Counsel testified he attempted to negotiate a new offer the morning of trial because he felt Petitioner "was making a mistake going to trial," but the State would not again extend the five-year offer and did not explicitly make another offer he could take to Petitioner. Id. at 342-43.
The PCR court applied Strickland and found:
that Applicant has proven neither prong of Strickland . . . . "Defense counsel has the duty to communicate formal offers from
the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Missouri v. Frye, 566 U.S. 133, 145 (2012) (emphasis added); see also Davie v. State, 381 S.C. 601, 675 S.E.2d 416 (2009). "When a criminal defendant rejects a plea bargain, [the Court examines] separately whether trial counsel was ineffective with respect to both the defendant's rejection of the offer and his ultimate decision to plead guilty." Hyman v. State, 397 S.C. 35, 44, 723 S.E.2d 375, 379 (2012) (citing Kolle v. State, 386 S.C. 578, 590, 690 S.E.2d 73, 79 (2010)).Id. at 371-72.
Applicant testified that though Counsel communicated to him the State's plea offer of five years, Counsel did not tell him when that plea offer would expire. Counsel testified that Applicant specifically and firmly rejected the State's offer of five years when it was presented, even though in Counsel's opinion it was a great offer that Applicant should have accepted. Counsel testified that he did indicate as a general principle that the offer would expire. On cross-examination, Counsel testified that he received the offer orally from Asst. Sol. Steven Grooms and that it was effectively dead when Applicant refused the offer and demanded a trial. The State orally withdrew the offer about a month before trial. Counsel tried to get another offer the morning of trial, but the State was disinclined to put five years back on the table. Finally, Counsel emphasized Applicant never wanted the five years, but wanted to proceed to trial.
The Court finds Counsel's testimony credible. Counsel adequately communicated the informal plea offer and Applicant threw it away on his own initiative. Notably, there is no evidence before the Court that the plea offer, orally communicated, ever had a fixed expiration date to communicate. Applicant has no constitutional entitlement to any particular plea offer. Accordingly, Applicant's request for relief based upon this allegation is DENIED.
Petitioner asserts the PCR court unreasonably applied Strickland and Missouri v. Frye, 566 U.S. 134 (2012), and challenges the PCR court's credibility finding. [ECF No. 9 at 248-58]. Respondent contends the record and applicable law support the PCR court's findings. [ECF No. 11 at 28-33].
"[T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel." Padilla v. Kentucky, 559 U.S. 356, 373 (2010). Thus, "[a]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Frye, 566 U.S. at 145. "To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." Id. at 147.
Petitioner relies on Frye's references to the American Bar Association's standards for criminal defense attorneys and rules other states have promulgated to formalize the plea-bargain process. [ECF No. 9 at 236-38]. He argues plea counsel performed deficiently because he failed to follow the steps outlined in those materials. Id. at 238. However, in Frye, the Supreme Court clarified "the standard for counsel's performance is not determined solely by reference to codified standards of professional practice," and evaluated attorney performance under Strickland's broader reasonableness standard. Frye, 566 U.S. at 145. And "while States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented, [the Court has] held that the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices." Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000). Accordingly, plea counsel's failure to reduce the offer to writing and make the offer part of the record was not per se unreasonable.
Petitioner contests the PCR court's credibility finding and asserts the court's "error is stark and clear" because he "presented clear and convincing evidence at the PCR hearing that the claim . . . is a meritorious claim," that counsel was deficient for failing to communicate when the plea offer would expire, and that counsel's error prevented him from "making a knowing decision as to whether to accept[] the plea agreement . . . or go to trial." [ECF No. 9 at 248-49].
"Credibility determinations . . . are factual determinations. As such, they 'are presumed to be correct absent clear and convincing evidence to the contrary, and a decision adjudicated on the merits based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding.'" Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322 (2003)). "[F]or a federal habeas court to overturn a state court's credibility judgements, the state court's error must be stark and clear." Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) ("federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them").
Petitioner's conclusory allegations of error fail to meet this standard and the undersigned presumes the correctness of the PCR court's credibility and factual findings. Based on a full review of the record, the PCR court could reasonably conclude the State made an informal, verbal offer, that may or may not have included an explicit expiration date, counsel communicated the offer to Petitioner and advised him to accept it, Petitioner rejected the offer, and the State then withdrew it. Petitioner did not change his mind and decide to plead guilty until the trial court denied his pre-trial motions and he faced the real possibility of an extended prison sentence.
These facts also fail to support Petitioner's assertion of prejudice. Petitioner contends he would have accepted the plea offer had counsel communicated the expiration date. However, the offer did not expire until after Petitioner rejected it. Further, Petitioner had full knowledge of the events surrounding the State's offer and its withdrawal when he pled guilty and confirmed to the trial court that he was satisfied with counsel's performance and entered his plea "freely and voluntarily." [ECF No. 11-1 at 69, 73]. The trial court accepted Petitioner's plea and found it "freely, voluntarily, knowingly and intelligently entered in with the advice of competent counsel with whom" Petitioner was satisfied. Id. at 76.
Petitioner's representations during his plea, "as well as any findings made by the judge accepting the plea, constitute a formidable barrier" in this habeas proceeding. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). "Solemn declarations in open court carry a strong presumption of verity" and "[t]he subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Id.
Accordingly, Petitioner fails to show the PCR court erred in finding plea counsel was not ineffective in his communication of the plea offer to Petitioner and that Petitioner knowingly and voluntarily entered his plea. The undersigned recommends granting Respondent's motion for summary judgment as to Ground Ten. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Respondent's motion for summary judgment and dismiss the petition with prejudice.
IT IS SO RECOMMENDED. October 28, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).