Opinion
C. A. 5:22-4647-BHH-KDW
03-07-2024
Devin Middleton, Petitioner, v. Shane Jackson, Warden of Lee Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Devin Middleton (“Petitioner”) is an inmate at the Lee Correctional Institution of the South Carolina Department of Corrections. He filed this counseled 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)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 12, 13. Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment on May 2, 2023, ECF No. 15, and Respondent filed a Reply to Petitioner's Response on May 9, 2023. ECF No. 16.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment be granted, and this Petition be denied.
I. Factual and Procedural Background
Petitioner was indicted by the Charleston County Grand Jury in the February 2016 term of court for murder, and the April 2017 term of court for criminal conspiracy. App. 1124-28.On June 12-15, 2017, Petitioner appeared before the Honorable R. Roger Couch for a jury trial. App. 1 et. seq. Petitioner was represented by Attorney John Apicella, and Assistant Solicitors David Osborne and Ted Corvey appeared on behalf of the State. Id. After the start of trial, including opening statements, limited witness testimony, and motion hearings concerning the admissibility of witness's testimony and evidence, Assistant Solicitor Osborne informed the court Petitioner wished to enter a negotiated Alford guilty plea to voluntary manslaughter and conspiracy. App. 1022. The court then questioned Petitioner about his understanding of his charges, potential sentences, and the constitutional rights he would be waiving, and Petitioner stated he understood and wanted to continue with his plea. App. 1027-29, 1036-40. Following the questioning by Judge Couch, Petitioner entered a negotiated Alford guilty plea to voluntary manslaughter and conspiracy and Judge Couch sentenced him to 20-years imprisonment. App. 1041, 1046. Petitioner did not file a direct appeal. ECF No. 1 at 2.
Citations to “App.” refer to the Appendix for Petitioner's trial and guilty plea transcript and PostConviction Relief (“PCR”) proceedings and the page numbers on the bottom of the page. That appendix is available at ECF Nos. 12-1 to 12-6 in this habeas matter.
See North Carolina v. Alford, 400 U.S. 25 (1970).
Petitioner filed an application for post-conviction relief (“PCR”) on December 21, 2017, in which he alleged he was being held unlawfully due to conflict of interest, ineffective assistance of counsel, and involuntary plea. App. 1051-58. Petitioner filed a second amended PCR application in which he alleged additional ineffective assistance of counsel claims. App. 1059-60. The State filed a return on March 14, 2018. App. 1061-67. A PCR evidentiary hearing was held before the Honorable Perry Gravely, Circuit Court Judge, on December 8, 2020. App. 1068-1111. Petitioner was present and represented by Attorney James K. Falk, and Assistant Attorney General Benjamin Limbaugh appeared on behalf of the State. See id. Petitioner, his trial counsel John Michael Apicella, and witness Marvin Johnson testified at the hearing. Id. On April 28, 2021, Judge Gravely filed an order dismissing Petitioner's PCR application with prejudice, making the following findings of facts and conclusions of law:
This Court has reviewed the evidence presented at the evidentiary hearing, observed the witnesses, passed upon their credibility, and weighed the testimony and evidence accordingly in its discussion below. Further, this Court has reviewed the Clerk of Court records regarding the subject convictions, as well as the plea transcript. This Court finds the combined record of the plea transcript and the testimony and evidence presented at the evidentiary hearing establishes Applicant received effective assistance of counsel, and this application should be denied. Set forth below are the relevant findings of fact and conclusion of law as required by section 17-27-80 of the South Carolina Code of Laws.
Applicant alleges he received ineffective assistance of counsel such that his guilty plea was rendered involuntary. In a post-conviction relief action, the applicant bears the burden of proving the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, Applicant must prove “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668 (1984); Butler, 286 S.C. at 443, 334 S.E.2d at 814. The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. The courts presume counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689. Applicant must overcome this presumption in order to receive relief. Cherry v. State, 300 S.C. 115, 118, 386 S.E.2d 624, 625 (1989).
The reviewing court applies a two-pronged test in evaluating allegations of ineffective assistance of plea counsel. Id. at 117, 386 S.E.2d at 625. First, the applicant must prove counsel's performance was deficient. Id. Under this prong, the court measures an attorney's performance by its “reasonableness under professional norms.” Id. (quoting Strickland, 466 U.S. at 688 (1984)). Second. counsel's deficient performance must have prejudiced the applicant such that ‘‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 117-18, 386 S.E.2d at 625. When there has been a guilty plea, the applicant must prove counsel's representation was below the standard of reasonableness, and but for counsel's unprofessional errors, there is a reasonable probability he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart. 474 U.S. 52, 5859 (1985); Roscoe v. State, 345 S.C. 16, 20, 546 S.E.2d 417, 419 (2001).
The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being
challenged. A court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Strickland, 466 U.S. 668.
Based on this standard set forth above, this Court finds Applicant has failed to meet his requisite burden of establishing any constitutional ineffectiveness of counsel as to any of his allegations, as addressed below:
Ineffective assistance of counsel and involuntary guilty plea
Applicant alleges plea counsel was generally ineffective and that his guilty plea was entered involuntarily. However, Applicant has wholly failed to produce any evidence of the alleged deficiency of plea counsel or that his plea was entered involuntarily.
Because the Sixth Amendment right to counsel also applies to a defendant entering a guilty plea, Hill v. Lockhart extended the two-part Strickland test to challenge guilty pleas based on ineffective assistance of counsel.” Hill, 474 U.S. 52; cf. Padilla, 559 U.S. at 373 (recognizing the guilty plea process is a “critical phase of litigation” for purposes of the Sixth Amendment right to effective assistance of counsel). A claim of ineffective assistance of guilty plea counsel requires the applicant present evidence satisfying two prongs: first, evidence that counsel's performance was deficient; and second, evidence that counsel's deficient performance prejudiced the defendant by causing him to plead guilty rather than go to trial. Hill, 474 U.S. 52.
The analysis of counsel's performance under the first prong of Strickland remains unchanged-the applicant must show counsel's representation fell below the objective standard of reasonableness demanded of attorneys in criminal cases. Hill, 474 U.S. at 58-59; accord Thompson v. State, 340 S.C. 112, 115, 531 S.E.2d 294, 296 (2000). An applicant alleging his plea was induced by ineffective assistance of counsel must prove counsel's advice to plead guilty was not “within the competence demanded of attorneys in criminal cases.” Hill, 474 U.S. at 56.
The second, or “prejudice” prong, however, “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Id. at 58-59. Specifically, when an applicant claims counsel's deficient performance caused him to accept a plea, the applicant “must show that there is a reasonable probability that, but for [plea] counsel's [alleged] errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59. This inquiry “focuses on a defendant's decision making” and does not turn on the outcome of a defendant's actual criminal proceeding or potential outcome had a defendant chosen to proceed to trial. Lee v. United States, 582 U.S., 137 S.Ct. 1958, 1966 (2017).
However, an applicant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. Padilla, 559 U.S. at 372. The question here is whether the applicant, if correctly informed of circumstances surrounding the plea, would have pleaded guilty-not whether counsel would have still advised him or her to plead guilty. Turner v. State, 335 S.C. 382, 385, 517 S.E.2d 442, 444 (1999).
Surmounting Strickland's high bar is never an easy task, and the strong societal interest in finality has “special force with respect to convictions based on guilty pleas.” Lee, 582 U.S. 137 S.Ct. at 1967 (internal citations and quotation marks omitted); cf. Hill, 474 U.S. at 58 (“[R]equiring a ‘prejudice' showing from defendants who seek to challenge the validity of their guilty pleas on the ground of ineffective assistance of counsel ‘will serve the fundamental interest in the finality of guilty pleas”). Reviewing “[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Lee, 582 U.S. 137 S.Ct. at 1967. Rather, judges should “look to contemporaneous evidence to substantiate a defendant's expressed preferences. Id. In determining whether a guilty plea was taken in accordance with constitutional standards, the reviewing judge must analyze and consider the entire record, including the transcript of the plea and the evidence presented at the PCR hearing. Harres, 282 S.C. at 134, 318 S.E.2d at 361.
The performance and prejudice standards, however, “do not establish mechanical rules; [t]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Id. at 696. Moreover, “there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697. The court “need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Id. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, the court may evaluate the prejudice prong only. Id.
“[I]t is the prerogative of any person to waive his rights, confess, and plead guilty, under judicially defined safeguards, which are adequately enforced.” Reed v. Becka, 333 S.C. 676, 685, 511 S.E.2d 396, 401 (Ct. App. 1999). Accordingly, because a criminal defendant waives several constitutional rights by pleading guilty, the Due Process Clause requires that guilty pleas are entered into voluntarily, knowingly, and intelligently. Boykin v. Alabama, 395 U.S. 238 (1969); Pittman v. State, 337 S.C. 597, 524 S.E.2d 623 (1999).
To be intelligent, a plea must be made by a mentally competent defendant who understands both the charges against him or her and the consequences of his or her plea. Brady v. United States, 397 U.S. 742, 748 (1970). To be voluntary, a plea must be free of threats or other coercion that would impermissibly distort the
defendant's choice. Id. at 755; see also United States v. Smith, 440 F.2d 521, 528529 (7th Cir. 1971) (Stevens, J., dissenting) (explaining voluntariness relates to the trustworthiness of the admission of guilt and binding character of the waiver of the constitutional protections which would be available to the accused if he elected to stand trial).
Before a court can accept a guilty plea, the defendant must be advised of the constitutional rights he or she is waiving; the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. Boykin, 395 U.S. at 243. Additionally, in order to knowingly and voluntarily plead guilty, the defendant must have a full understanding of the consequences of the plea, including the nature and crucial elements of the offense(s); the maximum and any mandatory minimum penalty; and the nature of the constitutional rights being waived. Pittman, 337 S.C. at 599, 524 S.E.2d at 624.
However, it is “well established that a guilty plea is not rendered invalid because it represents a compromise by defendant, thrusts a difficult judgment upon him, or is motivated by fear of greater punishment.” United States v. Cox, 464 F.2d 937,942 (6th Cir. 1972) (citing Brady, 397 U.S. 742). The State may properly encourage guilty pleas either by being more lenient to those who enter such pleas, Brady, 397 U.S. at 750-753, or by increasing the risks of punishment on those who do not. North Carolina v. Alford, 400 U.S. 25, 37 (1970). The standard for determining the validity of a guilty plea is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Id. at 31.
A defendant's knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and “may be accomplished by colloquy between court and defendant, between court and defendant's counsel, or both.” State v. Ray, 310 S.C. 431, 437, 427 S.E.2d 171, 174 (1993); see also Wolfe v. State, 326 S.C. 158, 485 S.E.2d 367 (1997) (guilty plea not involuntary where the colloquy demonstrated the trial judge asked defendant twice whether he understood there were no promises and that no sentencing recommendations were binding on the judge). To ensure the defendant understands the consequences of his or her guilty plea, the trial judge “usually questions the defendant about the facts surrounding the crime and punishment that could be imposed.” Dover v. State, 304 S.C. 433, 434-35, 405 S.E.2d 391, 392 (1991). However, the trial judge “does not have to direct the defendant's attention to every consequence of his plea provided the record reveals affirmative awareness of the consequences of a guilty plea.” Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 776 (1998).
The voluntariness of a guilty plea, however, “is not determined by an examination of the specific inquiry made by the sentencing judge alone, but is determined from both the record made at the time of the entry of the guilty plea and the record of the post-conviction hearing.” Harres, 282 S.C. at 133, 318 S.E.2d at 361.
In evaluating an allegation on PCR that a guilty plea was based on inaccurate advice of counsel, the transcript of the guilty plea hearing will be considered to determine whether any possible error by counsel was cured by the information conveyed at the plea hearing. Wolfe, 326 S.C. at 165, 485 S.E.2d at 370; cf. Rayford v. State, 314 S.C. 46, 443 S.E.2d 805 (1994) (finding that, where the transcript of the guilty plea proceeding refuted applicant's claim that he did not understand the terms of a plea bargain, granting PCR was inappropriate notwithstanding applicant's claim his lawyer misadvised him).
Nonetheless, because a guilty plea is a solemn judicial admission of the truth of the charges against an individual ..., a criminal inmate's right to contest the validity of such a plea is usually, but not invariably, foreclosed.” Dalton v. State, 376 S.C. 130, 137, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also Jamison v. State, 410 S.C. 456, 469-71, 765 S.E.2d 123, 129-30 (2014) (observing that “guilty plea[s] must be treated as final in the vast majority of cases” and instructing that caution must be exercised so as not to ‘‘undermine the solemn nature of a guilty plea and the finality that generally attaches to a guilty plea”). Indeed, admissions made during a guilty plea should be considered conclusive unless an applicant presents valid reasons why he should be allowed to depart from the truth of his statements.” Id. at 137-38, 654 S.E.2d at 874 (internal citations and quotation marks omitted); cf. Blackledge, 431 U.S. at 73-74 (pointing out that representations made by a defendant, his lawyer, and the prosecutor at a guilty plea hearing, as well as any findings made by the judge accepting the plea, constitute a “formidable barrier in any subsequent collateral proceedings”).
An applicant who enters a plea on the advice of counsel may “only attack voluntary, knowing and intelligent character of the plea by showing that plea counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the [applicant] would not have pled guilty, but would have insisted on going to trial.” Roscoe v. State, 345 S.C. 16, 20, 546 S.E.2d 417,419 (2001).
In the present case, Applicant's guilty pleas were entered knowingly, intelligently, and voluntarily with the advice of competent counsel. At his guilty plea, Applicant acknowledged his counsel discussed the case at length with him prior to the plea, he understood his Constitutional rights, and he was satisfied with the services of his counsel. Applicant acknowledged he understood the charges he was facing and that he could either plead guilty or not guilty. Applicant acknowledged the Constitutional rights he would have if he proceeded to trial and that he would be surrendering those rights if he plead guilty. Applicant acknowledged that he wished to enter a plea of guilty to because he was guilty and believes it was in his best interest. Applicant finally acknowledged that he understood the negotiated sentence and that it is considered a most serious offense (85%). Therefore, combined with his statements to the court during his guilty plea,
this Court finds that Applicant entered his plea voluntarily and counsel was not deficient in any way. This Court further finds that Marvin Johnson's testimony would not have been helpful to Applicant and that counsel was not deficient in failing to secure his testimony. This Court also finds that there was a sufficient factual basis for the plea and Applicant admitted that he agreed that he was going to be convicted if he proceeded with trial. Counsel's defense of Applicant was not deficient and Applicant plead guilty freely and voluntarily. Therefore, this allegation is dismissed with prejudice.
IV. CONCLUSION
Based on all the forgoing, this Court finds and concludes Applicant has not established any constitutional violations or deprivations before or during his trial and sentencing proceedings. Counsel was not deficient, nor was Applicant prejudiced by Counsel's representation. Therefore, this PCR application must be denied and dismissed with prejudice.App. 1112-1122.
Petitioner appealed the PCR court's order denying his PCR application. App. 1123. Attorney Elizabeth Franklin-Best, who represented Petitioner on appeal, filed a petition for writ of certiorari in the South Carolina Supreme Court on July 8, 2021, raising the following issue:
Whether trial counsel was ineffective in allowing his client to enter an invalid guilty plea where there was not a strong factual basis, as required by North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).ECF No. 12-2 at 3. The State filed a return on October 7, 2021, and Petitioner filed a reply to the State's return on October 14, 2021. ECF Nos. 12-3, 12-4. On June 28, 2022, the South Carolina Supreme Court denied the petition for writ of certiorari. ECF No. 12-5. The Remittitur was issued on July 14, 2022. ECF No. 12-6. This Petition followed on December 22, 2022. ECF No. 1.
II. Discussion
A. Federal Habeas Issues
Petitioner states the following ground in his petition:
Ground One: Trial counsel was ineffective in allowing his client to enter an invalid guilty plea where there was not a strong factual basis, as required by North
Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).ECF No. 1 at 3.
B Standard 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “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 “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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.
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 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, 336 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362 (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 411.
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[,]” it “must be objectively unreasonable,” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to statecourt factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential,” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “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.
Where allegations of involuntary guilty pleas are concerned, the United States Supreme Court has held that a guilty plea is constitutionally valid if it “‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Hillv. Lockhart, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. at 31). “Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.” Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). A plea is knowingly and intelligently made if a defendant is “‘fully aware of the direct consequences' of his guilty plea and not induced by threats, misrepresentation, including unfulfilled or unfulfillable promises, or by “‘promises that are by their nature improper as having no relationship to the prosecutor's business.'” Brady v. United States, 397 U.S. 742, 755 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957)). Because a guilty plea is a solemn, judicial admission of the truth of the charges against an individual, a criminal inmate's right to contest the validity of such a plea is usually, but not invariably, foreclosed. Blackledge v. Allison, 431 U.S. 63, 74-75 (1977). Therefore, statements made during a guilty plea should be considered conclusive unless a criminal inmate presents reasons why he should be allowed to depart from the truth of his statements. Crawford v. United States, 519 F.2d 347 (4th Cir. 1975), overruled on other grounds by United States v. Whitley, 759 F.2d 327, 350 (4th Cir. 1985); Edmonds v. Lewis, 546 F.2d 566, 568 (4th Cir. 1976). Insofar as the review of claims of ineffective assistance of counsel raised by persons who pleaded guilty is concerned, the United States Supreme Court has stated,
Hindsight and second guesses are also inappropriate, and often more so, where a plea has been entered without a full trial ....The added uncertainty that results when there is no extended, formal record and no actual history to show how the
charges have played out at trial works against the party alleging inadequate assistance. Counsel, too, faced that uncertainty. There is a most substantial burden on the claimant to show ineffective assistance....Premo v. Moore, 562 U.S. 115, 132 (2011).
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. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner 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.
(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). “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.
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). Strict time deadlines govern direct appeals 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.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).
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 United States 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. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 23, 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).
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 Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).
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 South Carolina Supreme Court 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 v. 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 that 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, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray v. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
1. Merits Review
In Ground One, Petitioner claims his trial counsel was ineffective when he allowed Petitioner to enter an invalid guilty plea under Alford when there was not a strong factual basis for the plea. ECF No. 1 at 3. Petitioner contends the State's case against him was based on the doctrine of “hand of one is the hand of all,” and although there was sufficient evidence his co-defendant Perry shot the victim, there was no evidence Petitioner shot him. Id. at 4. Petitioner contends that the majority of the three-day trial was spent addressing various motions and witness testimony concerning those motions. Id. Petitioner claims the evidence introduced at trial showed Petitioner knew the victim, engaged in horseplay with the victim and sprayed him with pepper spray, and was present in the area when the victim was shot. Id. at 6. Petitioner contends the State also showed Petitioner and Perry were friends, Petitioner called for Perry to be freed from jail, and Petitioner arguably announced plans to intimidate or get rid of witnesses against Perry. Id. at 5-6. Petitioner argues there was no evidence showing he participated in the murder or that he conspired to commit a crime on the day of the murder. Id. at 6. Petitioner stated his counsel testified at the PCR hearing that he spoke with Petitioner after the trial judge suggested the parties discuss a plea, and told him the State was offering a plea to voluntary manslaughter with a 20-year sentence. Id. Petitioner alleges trial counsel testified he believed the State would get enough evidence admitted at trial to support a conviction, and he advised Petitioner he could be convicted of murder and be sentenced to 30 years to life, and he should strongly consider taking the plea. Id. at 6-7. Petitioner argues the PCR court erred when he found there was a sufficient factual basis for a plea, and that trial counsel was not deficient when he advised Petitioner to accept the plea. Id. at 7.
At the PCR evidentiary hearing, Petitioner testified his counsel's strategy going into trial was that if witness Mr. Johnson did not appear at trial, then there was no way Petitioner would be convicted. App. 1076. Petitioner stated on the second day of trial, his counsel advised him to take a plea. App. 1077. Petitioner testified counsel told him
there was no way possible way I could beat the charge. Even though Mr. Johnson is not here, there is no way possible I can win. So my best bet was to plead guilty. He said an acquittal was not going to be possible.Id. Petitioner stated counsel told him about the evidence that was going to come in, and he told Petitioner he thought the jury would convict him. App. 1078-79. When asked about his understanding of what it meant to make an Alford plea, Petitioner stated “I ain't admitting no guilt. I just got to plea because there was a possibility that I would be convicted.” App. 1079.
Petitioner's trial counsel testified at the PCR hearing that his defense strategy was reasonable doubt. App. 1081. Counsel stated there was a video showing a group of guys, including Petitioner and the victim, play fighting in the street, and during the video Petitioner was seen with something in his hand with his arm extended toward the victim. Id. Counsel testified Petitioner was then seen walking into an alley in the same direction of the victim. Id. Counsel stated the video cut off and when it resumed the victim had been shot in the alley and everyone was gone. Id. Counsel testified the police had a statement from a witness, Mr. Johnson, who heard Petitioner say “Finish it. Finish it,” before the victim was shot, however, this witness, who had a history of drug abuse, was not reliable. App. 1081-82. Counsel stated his plan was to cross-examine the witness if he appeared at trial to show there was no evidence that Petitioner was anything more than merely present, which would not be enough to convict him. App. 1082-83. Counsel testified after the trial started, and following motion hearings, the trial judge spoke with the lawyers and suggested they talk about a disposition of the case. App. 1084. Counsel stated there was still a lot of the case to come in, but they had heard from a witness who heard gunshots and saw an individual, later identified as Petitioner's co-defendant Perry, in the alley with his arm extended. App. 1084-85. Counsel testified the video, and other evidence, also showed an individual believed to be Perry walking out of the alley after the shooting, leaving the scene, and walking by Petitioner. App. 1085. Counsel stated
I was convinced that the jury would find that that was linked to Daquan Perry. I don't want to speak for his lawyers, but I think they believed that that evidence was devastating to their client. Unfortunately, my severance motion was denied. I always felt that that was something that I couldn't predict. I hoped it would be granted, because the evidence of Perry walking out that alley would be very strong evidence. I felt that that would be a way for the jury to convict my client.Id. Counsel testified after speaking with the judge he went to the jail and met with Petitioner. App. 1086. Counsel stated they discussed the case and spoke about a plea offer he received from the solicitor to plea to voluntary manslaughter with a 20-year sentence. Id. Counsel testified the State was relying on circumstantial evidence and he thought Petitioner would be convicted. Id. Counsel stated at trial the witness described Perry as wearing khaki pants the night of the shooting, and the person who exited the alley after the shooting was wearing khaki pants. Id. Counsel testified Petitioner admitted he was there and that he and Perry were friends. Id. Counsel testified he recommended Petitioner seriously consider taking the plea. Id. Counsel stated Petitioner was reluctant to take a plea but stated he would consider it, and counsel said he told Petitioner his dad told him not to take it. Id. Counsel testified he met with Petitioner the next morning and he went through the arguments he thought the State would use during summation, and the rest of the evidence that would come in. App. 1087. Counsel stated he told Petitioner he thought he could be convicted, and although there was a chance Petitioner could be acquitted as there was no eyewitnesses in the case against Petitioner, he could not guarantee it. App. 1087-88. Counsel stated he told Petitioner he could easily be facing 30-years, serving day-for-day, to a life sentence, and Petitioner decided he was going to take the plea. App. 1088. Counsel stated he suggested Petitioner take an Alford plea as he thought it was important to Petitioner and his family that he not admit he committed murder. Id. Counsel testified he believed there was a good chance Petitioner would be convicted after all the evidence came in and that was the basis for the plea. Id. Counsel was asked what testimony tipped the scale from Petitioner being a friend who was in the same area as the shooter to proving voluntary manslaughter, and counsel stated it was Petitioner's statement he was play fighting with pepper spray in his hand, and a test of the victim's clothing that was consistent with being sprayed with pepper spray. App. 1093. Counsel stated a competent solicitor could use that evidence to show Petitioner was more than a bystander. Id. When asked what evidence existed in the record to support Petitioner taking the plea, counsel stated.
Well, identification wasn't an issue. He was there. The videos had come in. On the big screen, TVs that were in the courtroom, my argument is it's ambiguous if I was the solicitor. Mr. Middleton pointing his hand at the decedent, the decedent turning around and making a motion around his head would be consistent with having been pepper sprayed. He turned around and started to walk into the alley as if he was trying to get away from the pepper spray, and Mr. Middleton followed him into the alley. My argument would have been there is not enough evidence to convict him of the crime of murder. I would have said, "Are you kidding me? Where is the evidence in this case?" That would have been my defense. If I was the solicitor, I would have said, "This is not innocent conduct. You do not pepper spray someone who you are play fighting. This was not play fighting. This was a hit, and Mr. Middleton was part of it." That is what I told Mr. Middleton.App. 1097-98.
The PCR court denied this Ground One claim explaining Petitioner's guilty pleas to voluntary manslaughter and conspiracy were entered knowingly, intelligently, and voluntarily on the advice of competent counsel. App. 1121. The PCR court also found there was a sufficient factual basis for the plea and that Petitioner agreed he would be convicted if he went to trial. Id.
In support of his summary judgment motion, Respondent contends the State court record supports the PCR court's findings that counsel was not deficient for advising his client to enter a guilty plea. ECF No. 12 at 19. Respondent explains the record contained a sufficient factual basis for the plea. Id. Respondent notes the State had Petitioner's confession that he participated in an assault on the victim and may have pepper sprayed him. Id. Respondent also points to video surveillance of the area which showed Petitioner was one of the people who confronted victim in the roadway and Petitioner pointed a dark object, presumably pepper-spray, at the victim. Id. at 20. Respondent explains the video shows the altercation with victim escalated, and the victim was led into the alley and can be seen raising his hands. Id. Respondent acknowledges the victim was shot off camera, but states Petitioner was across the street from the alley where the victim was shot when law enforcement responded to the scene. Id. at 19-20. Respondent also states that Petitioner's co-defendant, Perry, was identified as the shooter. Id. at 20. Respondent notes trial counsel's testimony at the PCR hearing that there was never a guarantee of an acquittal, although counsel believed conviction was not an absolute certainty. Id. at 21. Respondent contends Counsel testified he harbored concerns that Petitioner could easily face conviction given the witness testimony creating a strong identification of co-defendant Perry as the shooter and the preview of the evidence he had seen. Id. Respondent contends “[i]t would have been ineffective assistance not to advise Petitioner of the risks involved with the case at that point and share his opinion of the benefit of the plea deal that was being offered.” Id.
In his Response, Petitioner argues his counsel was ineffective when he counseled Petitioner to plead guilty because although the guilty plea was pursuant to Alford, the evidence against Petitioner was weak and he consistently maintained his innocence. ECF No. 15 at 2. Petitioner argues there was no evidence he and Perry had an understanding or agreement to attack the victim. Id. at 2. Petitioner contends that without this critical evidence, Petitioner could not have been found guilty. Id. Petitioner alleges he was prejudiced by counsel's actions because the entirety of the State's case would not have survived a motion for a directed verdict, and if the case had gone to jury, he would not have been convicted. Id. at 3. Petitioner argues the PCR court's order dismissing his claim is unreasonable. Id. at 4. Petitioner points out that the PCR order did not acknowledge Petitioner entered his plea pursuant to Alford and that Petitioner consistently maintained his innocence. Id. at 4-5. Petitioner points out the PCR court erroneously stated Petitioner acknowledged he was guilty and claims the order of dismissal did not properly recount the facts of the case and is not entitled to any deference. Id. at 5.
In Reply, Respondent addresses Petitioner's argument concerning the factual basis for his plea, contending there is no standard level or threshold requirement for which the “strength of the factual basis” must be substantively judged. ECF No. 16 at 1. Respondent contends the purpose of the factual basis for a plea is to determine whether the plea was entered knowingly and intelligently, and the evidence supports the PCR court's findings that counsel was not deficient and Petitioner entered his plea freely and voluntarily . Id. at 1-2.
The undersigned finds Petitioner has failed to show the PCR court unreasonably applied the mandates of Strickland or other United States Supreme Court precedent in deciding his ineffective assistance of counsel claim. In light of the trial/plea transcript and the evidence presented during the PCR hearing, the undersigned finds support for the PCR court's findings that Petitioner failed to produce any evidence of the alleged deficiency of his counsel. The PCR court explained Petitioner acknowledged his counsel discussed the case with him at length prior to his plea, and he was satisfied with the services of his counsel. The PCR court also found Petitioner acknowledged he understood the charges he was facing and that he could either plead guilty or not guilty. The PCR court also noted Petitioner acknowledged he wished to enter a plea of guilty because he was guilty and believed it was in his best interest. The court also explained there was a sufficient factual basis for the plea, and Petitioner admitted he agreed that he was going to be convicted if he proceeded to trial. Having reviewed the trial/plea transcript and the PCR transcript, the undersigned finds Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination of these issues given the evidence and record before it. As to Petitioner's argument that the PCR court's order did not properly recount the facts when the PCR judge found Petitioner acknowledged he entered a guilty plea “because he was guilty,” the undersigned finds this error was not sufficient evidence to render the PCR court's conclusions about the validity of Petitioner's pleas, or trial counsel's competent representation, unreasonable. The undersigned notes these findings were not centered on Petitioner's acknowledgement that he was guilty of murder, but on whether trial counsel provided Petitioner with competent representation. Although Petitioner did not make a statement acknowledging his guilt, he did acknowledge that he and counsel thoroughly discussed the case, that he understood his charges, and he was pleading guilty because he believed he would more than likely be convicted if the State's evidence was presented to the jury. See App. 1034. Accordingly, the PCR court's conclusions that Petitioner's plea was entered knowingly and voluntarily, and Petitioner's counsel's representation was not deficient, were reasonable despite this slip of the pen. See McGill v. Shinn, 16 F.4th 666, 692 n.9 (9th Cir. 2021) (rejecting ineffective assistance of counsel claim explaining the PCR court's one error in a factual finding did not render its ultimate conclusion unreasonable). Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it 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). See Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000); Williams v. Taylor, 529 U.S. 420 (2000). Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of these issues. Because Petitioner has failed to show he is entitled to federal habeas corpus relief, the undersigned recommends Petitioner's habeas petition be dismissed.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's Motion for Summary Judgment, ECF No. 13, and the Petition be denied.
IT IS SO RECOMMENDED.
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
Post Office Box 2317
Florence, South Carolina 29503
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).