Opinion
C. A. 9:21-cv-02121-CMC-MHC
05-13-2022
Bennie Mitchell, Petitioner, v. Warden of Ridgeland Correctional Institution, Respondent.
ORDER AND REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Petitioner Bennie Mitchell (“Petitioner”), a state prisoner proceeding pro se, petitions the court for a writ of habeas corpus under 28 U.S.C. § 2254. This matter is before this 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 to Dismiss, ECF Nos. 31 and 32, and Petitioner's Motion to Stay, ECF No. 39. On December 14, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), this Court advised Petitioner of the Motion to Dismiss, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion by January 14, 2022. ECF No. 33. Petitioner filed his Response on January 20, 2022, ECF No. 37.
Petitioner also filed a Motion to Amend and a Motion to Expand the Record. ECF Nos. 38, 40. Respondent filed a Response in Opposition to Petitioner's Motions to Stay, to Amend and to Expand the Record. ECF No. 42. Petitioner filed a Reply, ECF No. 45, and a Supplement to the Reply, ECF No. 46.
All of the pending motions have been fully briefed. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion to Dismiss, ECF No. 32, be granted; that Petitioner's Motion to Stay, ECF No. 39, be denied; the Petition, ECF No. 1, be dismissed without prejudice; and that Respondent's Motion to Amend, ECF No. 38, be mooted. For the additional reasons set forth below, Petitioner's Motion to Expand the Record, ECF No. 40, is granted.
I. BACKGROUND
In January 2009, the Newberry County Grand Jury indicted Petitioner for burglary, first degree, for possession of burglary tools, and for enhancement of larceny. ECF No. 31-17 at 2-3; ECF No. 31-4 at 2. In February 2010, Petitioner was indicted for one count of petit larceny, as well. ECF No. 31-4 at 2. On April 19, 2010, Petitioner was tried before the Honorable D. Garrison Hill, Circuit Court Judge, and a jury. ECF No. 31-1. Petitioner was represented by counsel, Mathias Chaplin. ECF No. 31-1 at 1. The jury found Petitioner guilty of first-degree burglary and possession of burglary tools but acquitted him of petit larceny. ECF No. 31-1 at 234-37. Judge Hill sentenced Petitioner to twenty years' incarceration for burglary first. ECF No. 31-1 at 240.
The enhancement of larceny charge was nolle prossed. ECF No. 31-4 at 2 n.1.
Petitioner filed a post-trial motion for reconsideration of his sentence and for a new trial.Those motions were denied on May 7, 2010. ECF No. 31-2.
It appears Respondent filed some, but not all, of the records that make up the state court record. While the state court record is incomplete, the information before this Court is sufficient for the Court to evaluate the failure to exhaust issue.
Petitioner then filed a direct appeal. The South Carolina Court of Appeals summarized Petitioner's arguments as follows:
[T]he trial court erred in: (1) allowing a police officer to identify Mitchell from photographs taken by the victim's deer camera because it was in violation of Rule 403, SCRE, and Rule 701, SCRE; (2) admitting a disk containing photographs from a deer camera because it was in violation of Rules 1001, 1002, and 1003, SCRE; and (3) failing to grant Mitchell's post-trial motion for a new trial on the first-degree burglary charge when all of the elements of the charge were not met.State v. Mitchell, 731 S.E.2d 889, 891 (S.C. Ct. App. 2012); ECF No. 31-4 at 1-2. Finding the trial court had not abused its discretion, the court of appeals ultimately affirmed Petitioner's convictions. Mitchell, 731 S.E.2d at 896; ECF No. 31-4. Petitioner filed a petition for rehearing, which was denied. ECF Nos. 31-5, 31-6.
Thereafter, Petitioner filed a petition for writ of certiorari with the South Carolina Supreme Court. ECF No. 31-7. The South Carolina Supreme Court denied the petition on March 6, 2014. ECF No. 31-9. The remittitur was issued on March 10, 2014. ECF No. 31-10.
On March 14, 2014, Petitioner filed a pro se application for post-conviction relief (“PCR”) alleging claims of ineffective assistance of counsel and ineffective assistance of appellate counsel. ECF No. 31-11 at 3. The State submitted a return on July 30, 2014. ECF No. 31-12.
On June 11, 2018, Petitioner filed a motion to dismiss his PCR counsel at the time, Carson M. Henderson. ECF No. 31-13. On January 24, 2019, Petitioner's motion was granted, and he was informed that Ashley A. McMahan had been appointed to represent him as PCR counsel. ECF No. 31-14. In a consent order dated August 12, 2019, the Honorable Eugene C. Griffith, Jr., Circuit Court Judge, authorized Petitioner to be given $3,500 for the services of an investigator. ECF No. 31-15.
Petitioner commenced the instant federal habeas corpus action by filing a petition dated July 13, 2021, which was received by the court on July 16, 2021. ECF No. 1.
On October 6, 2021, PCR counsel filed an amended PCR application on Petitioner's behalf in state court. ECF No. 31-16. A virtual evidentiary hearing was held on October 26, 2021, by the Honorable R. Kirk Griffin, Circuit Court Judge. See ECF No. 31 at 4.
At the time the parties' Motions in this matter were being briefed, the PCR court had not ruled upon the PCR application. However, according to the state court docket, on February 18, 2022, Judge Griffin issued an order denying the PCR application and dismissing it with prejudice. Petitioner has filed a notice of appeal in state court, and the transcript of the PCR proceedings have been ordered.
The docket for Petitioner's state PCR action, Mitchell v. State, 2014-CP-36-000141, can be found by searching the Newberry County Public Index at https://www.sccourts.org/caseSearch/. The court takes judicial notice of the records and docket entries in Petitioner's PCR action. See Philips v. Pitt City Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. v. Coil, 887 F.3d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
The docket for Petitioner's PCR appeal, Appellate Case No. 2022-000258, can be found at https://ctrack.sccourts.org/public/caseView.do?csIID=75025 (last accessed May 12, 2022).
II. DISCUSSION
Petitioner raises the following grounds for relief in his Petition:
Ground One: Inordinate Delay - Denial of Due Process/Equal Protection
Ground Two: Ineffective Assistance of trial counsel
Ground Three: Ineffective Assistance of Appellate CounselECF No. 1 at 6, 8, 9. He gives further details on his three grounds for relief in an attachment to the petition. ECF No. 1-2.
Respondent asserts that the Petition should be dismissed without prejudice because Petitioner has not yet exhausted his state law remedies. ECF No. 31 at 6-10.
A. Exhaustion of Remedies
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.” Id. The statute further requires that, before seeking habeas corpus relief, a petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Stated plainly, in the interest of giving state courts the first opportunity to consider alleged constitutional errors in state proceedings, a § 2254 petitioner is required to “exhaust” all state remedies before a federal district court can entertain his claims. If a petitioner fails to exhaust his claims prior to seeking habeas relief, his federal habeas corpus petition generally must be dismissed. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (“This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.”).
Notwithstanding the foregoing, a federal court may consider claims that have not been presented to the highest South Carolina court with jurisdiction in very limited circumstances. See Granberry v. Greer, 481 U.S. 129, 131 (1987). For example, under § 2254, exhaustion is not required if “there is an absence of available State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the state's courts in such limited circumstances.
B. Failure to Exhaust
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. As outlined above, Petitioner has unsuccessfully challenged his convictions by way of a direct appeal, and he is currently pursuing his PCR remedies. However, because his PCR action remains pending, he has failed to exhaust his state court remedies as required by 28 U.S.C. § 2254. As such, his petition should be dismissed without prejudice, unless he can demonstrate that his failure to exhaust should be excused.
C. Alleged Inordinate Delay
Petitioner asserts that his failure to exhaust should be excused because of the State's inordinate delay. Specifically, Petitioner notes that he filed his PCR action in March 2014, but it still had not been ruled upon as of the time he filed his habeas action in July 2021.
Petitioner has also asserted the State's inordinate delay as a freestanding ground for habeas relief. However, the court need not reach that issue in light of the recommendation to dismiss the Petition without prejudice because of Petitioner's the failure to exhaust, as discussed herein.
“State remedies may be rendered ineffective by inordinate delay or inaction in state proceedings.” Ward v. Freeman, No. 94-6424, 46 F.3d 1129, at *1 (4th Cir. Feb. 8, 1995) (per curiam). In Ward, the Fourth Circuit found a habeas petitioner's state remedies were ineffective and remanded the habeas petition for consideration on the merits where there was a fifteen-year-delay in his appeal in state court. Id. In so finding, the Fourth Circuit applied the four-factor speedy trial analysis from Barker v. Wingo, 407 U.S. 514 (1972), which includes the following considerations: “(1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant.” Id. at *1. Courts in this district have similarly considered the Ward factors in assessing whether habeas petitioners' failure to exhaust should be excused. See, e.g., Goss v. Williams, Case No. 2:18-cv-2938-BHH-MGB, 2019 WL 7900173 (D.S.C. June 19, 2019), adopted by 2020 WL 502635 (D.S.C. Jan. 31, 2020), appeal dismissed No. 20-6181, 814 Fed.Appx. 776 (4th Cir. July 27, 2020). The undersigned considers each factor in turn.
Of note, the Ward factors are not universally applied within the Fourth Circuit when courts are assessing whether a habeas petitioner's failure to exhaust should be excused. For example, the Southern District of West Virginia has noted that the Ward factors are applicable when considering whether a state's inordinate delay had denied a petitioner due process, but a petitioner need not demonstrate a due process violation in order to have his failure to excused. Plymail v. Mirandy, Civil Action No. 3:14-6201, 2017 WL 4280676, at *7 n.3 (S.D. W.Va. Sept. 27, 2017). That court has established the following test:
In considering whether a delay is inordinate and unjustified such that exhaustion should be excused, courts look to several factors including: (1) the length of the delay (see Farmer[v. Cir. Ct. of Md. for Balt. Cty.], 31 F.3d [219,] 223 [(4th Cir. 1994)]), (2) the significance of any action that has been taken in state court (see Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004)), and (3) the party responsible for the complained-of delay (see Matthews v. Evatt, 51 F.3d 267 n.* (4th Cir 1995) (unpublished decision)). If an inordinate delay is found, the burden shifts to the State to provide justification for the delay and to demonstrate why the petitioner should still be required to exhaust his state court remedies before seeking relief in federal court. Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994).Id. (footnotes removed).
This Court first considers the length of the delay in Petitioner's state court action. At the time he filed his federal habeas corpus petition, Petitioner's PCR action had been pending for over seven years. At the time the PCR court issued an order denying and dismissing Petitioner's PCR application, the case had been pending for almost eight years. As noted above, Petitioner's PCR appeal is ongoing. While eight years may be excessive for a PCR action, that number is not determinative of whether the State's delay has rendered the state process ineffective. See Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (“[F]our years is an alarming amount of time [for an appeal]; standing alone, however, it does not require a granting of the writ.”); Goss, 2019 WL 7900173 at *7 (“[W]hile eight years is no small amount of time, analyzing Goss's PCR case under the Ward factors leads the undersigned to conclude that those eight years do not reflect a denial of due process.”); but see Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (“[I]t is difficult to envision any amount of progress justifying an eight-year delay in reaching the merits of a petition.”). This Court must address the other three Ward factors, as well.
Turning to the reason for the delay, Petitioner indicates that his first PCR attorney had his case for four and a half years and was ready to go forward but claimed the State had delayed the matter. ECF No. 1-2 at 2. When Petitioner filed a civil suit regarding the delay, the State blamed Petitioner's PCR counsel for the delay. Id. In any event, in 2019, Petitioner was appointed another attorney, who arranged to get additional funding to investigate Petitioner's claims. See ECF Nos. 31-14, 31-15. Respondent has not asserted that the Covid-19 pandemic caused any further delay in Petitioner's proceedings, but Petitioner notes that his case had been pending long before the pandemic and could have been heard via remote technology during the pandemic. ECF No. 1-2 at 5. Indeed, based on Respondent's submissions, it appears Petitioner's case was eventually heard by way of remote technology. Based on the information before this court, while some of the delay appears to have resulted from the need for further investigation of Petitioner's PCR claims, the majority of the delay in Petitioner's PCR action appears attributable to the State. See Turner v. Bagley, 401 F.3d 718, 726 (6th Cir. 2005) (“[F]ailures of court-appointed counsel and delays by the courts are attributable to the state.”). As a result, generally, this factor favors the Petitioner.
As to the third factor, it also generally favors Petitioner as there are indications in the state court record that Petitioner was diligent in asserting his rights in state court. As noted above, he filed an action in state court when his PCR action was stalled. Petitioner has also provided to this court multiple letters he wrote to replacement PCR counsel, where he inquired about the status of his case. See ECF No. 40-1. Respondent notes that there are state remedies available to correct inordinate delay and, further, that Petitioner has availed himself of those remedies. ECF No. 31 at 9.
Regarding the final factor, whether Petitioner has been prejudiced by the delay, Petitioner has asserted that he was unable to prove his PCR claims, in part, because the court reporter destroyed the tape of his trial, despite having been asked by appellate counsel to retain the materials in Petitioner's case. See ECF No. 37 at 10-12. At the time Petitioner responded to Respondent's motion to dismiss, the evidentiary hearing had been held, but no decision had been issued. Petitioner speculated that if he needed to appeal the PCR court's order, or if he had to refile his federal habeas corpus petition, he would be delayed several more years. Id. at 13. He also noted that he will complete his sentence in September 2025. Id. at 14.
Respondent contends that Petitioner has not established prejudice because he has not shown he was denied the opportunity for a full and fair adjudication of this claims. ECF No. 31 at 10. Respondent further notes that Petitioner “has the remedy of raising this claim [of inordinate delay] before the Supreme Court of South Carolina in any PCR appeal.” Id. As noted above, this Court has more information available than the parties did at the time they briefed this issue. Based on the information before this Court, the undersigned agrees that Petitioner has not demonstrated prejudice from the delay in his PCR action. For instance, the PCR court was able to resolve Petitioner's PCR claims despite alleged omissions in the record, based, in part, on testimony by trial counsel and the prosecutor. As to Petitioner's concern that his PCR appeal will not be resolved for years, there is no indication that that will be the case. The docket in Petitioner's PCR appeal reflects that the matter is still in the very early stages, but the PCR hearing transcript has been ordered, and Petitioner has corresponded regarding his allegations that the trial transcript contains omissions and inaccuracies. Should Petitioner's speculation that the appeal will not be disposed of in a timely manner come to pass, he has time to return to this court to seek habeas relief.
As outlined above, three of the Ward factors favor Petitioner, but the balance is not overwhelmingly in his favor. Moreover, in deciding whether Petitioner's failure to exhaust should be excused at this time, the Court is mindful that
[t]he exhaustion requirement . . . is grounded in principles of comity and reflects a desire to “protect the state courts' role in the enforcement of federal law,” Rose v. Lundy, [455 U.S. 509,] 518 [(1982)]. In addition, the requirement is based upon the pragmatic recognition that “federal claims that have been fully exhausted in state courts will more often be accompanied by a complete factual record to aid the federal courts in their review.” Rose, 455 U.S. at 519.Castille v. Peoples, 489 U.S. 346, 349 (1989). Indeed, the principle of comity and pragmatic concerns about the incomplete state court record weigh against excusing Petitioner's failure to exhaust at this time. Of note in that regard, the PCR court has now ruled on Petitioner's PCR application. Thus, his application has moved beyond the stage where it was stalled. Other federal courts have indicated “[a]s a matter of general practice, . . . a district court which has excused exhaustion but has not yet embarked upon proceedings of substance [should] stay its hand once there is reliable evidence that the state action has been reactivated.” Walker v. Vaughn, 53 F.3d 609, 615 (3d Cir. 1995). The fact that Petitioner's PCR application has been ruled upon, and his PCR appeal is underway, further weighs against excusing his failure to exhaust at this time.
Overall, including particularly these pragmatic concerns and the principle of comity, while the delay in Petitioner's state PCR case has been lengthy, it has not risen to the level of inordinate delay that has violated Petitioner's due process.
For all of the above reasons, the undersigned recommends that Respondent's Motion to Dismiss (ECF No. 32) be granted, and Petitioner's habeas corpus Petition be dismissed without prejudice pursuant to 28 U.S.C. § 2254.
D. Motion to Amend
Petitioner has moved to amend his Petition to add an additional claim regarding trial counsel's effectiveness. ECF No. 38; see also ECF No. 37 at 4-9. If the District Judge adopts the recommendation to dismiss the Petition without prejudice for failure to exhaust, Petitioner's Motion to Amend would be rendered moot.
E. Motion to Stay
Petitioner has moved to stay his action rather than have it dismissed. ECF No. 39. There is some authority to stay so-called “mixed” habeas petitions-that is, petitions that contain both procedurally defaulted and properly preserved claims-under Rhines v. Weber, 544 U.S. 269 (2005). However, the instant Petition does not appear to include any of the claims Petitioner raised in his direct appeal. In his habeas petition, Petitioner only presents PCR claims. Additionally, even if it was a “mixed” petition, Rhines cautions that “stay and abeyance should be available only in limited circumstances. . .” as it has the potential to undermine the purposes of the AEDPA. 544 U.S. at 277 (also explaining “[o]ne of the [AEDPA's] purposes is to ‘reduce delays in the execution of state and federal criminal sentences, particularly in capital cases'” and another is to require petitioner so totally exhaust their state claims). Indeed, the concern Rhines addresses is that “[a]s a result of the interplay between AEDPA's 1-year statute of limitations and [the requirement in Rose v. Lundy, 455 U.S. 509 (1982), that “mixed” petitions be dismissed], petitioners who come to federal court with ‘mixed' petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims.” 544 U.S. at 275. Petitioner does not face such a dilemma. Indeed, as noted by Respondents, at this point, Petitioner “still has almost all of the 365 days he is entitled to . . . under the statute of limitations.” ECF No. 31 at 8.
For the foregoing reasons, the undersigned recommends that Petitioner's Motion to Stay be denied.
F. Motion to Expand the Record
As part of his Motion to Expand the Record, Petitioner has offered correspondence between replacement PCR counsel and himself and between replacement PCR counsel and the state court. ECF No. 40-1. While Rule 7 of the Rules Governing § 2254 Cases authorizes the expansion of the record in some circumstances, in the habeas context, courts are generally limited to considering the record that was before the state court. 28 U.S.C. § 2254(e) (indicating a factual determination by a state court is presumed correct and courts shall not hold evidentiary hearings except in limited circumstances); see also Cullen v. Pinholster, 563 U.S. 170, 185 n.7 (2011) (“§ 2254(d)(1) . . . is plainly limited to the state-court record.”). However, it has also been recognized in this district that it is sometimes appropriate to consider additional information beyond the state court record. For instance, “courts have held that § 2254(e)(2) does not . . . constrain the court's discretion to expand the record to establish cause and prejudice to excuse a petitioner's procedural defaults.” Fielder v. Stevenson, Civil Action No. 2:12-cv-00412-JMC, 2013 WL 593657 at *3 (citing Cristin v. Brennan, 281 F.3d 404, 416 (3d Cir. 2002); Buckman v. Hall, No. CV 07-141-HU, 2009 WL 204403 (D. Or. Jan. 23, 2009) (noting that courts will “distinguish between an expansion of the record for purposes of establishing the factual predicate of a claim, and an expansion of the record to overcome a procedural default. In the later circumstance, § 2254(e)(2) does not apply.”). The undersigned finds that, to the extent the evidence Petitioner has submitted is relevant to the question of whether his failure to exhaust should be exhausted, it appropriate to consider the documentation. As such, Petitioner's Motion to Expand the record is granted.
IV. CONCLUSION
For the reasons set forth above, Petitioner's Motion to Expand the Record (ECF No. 40) is GRANTED. Further, it is RECOMMENDED that Respondent's Motion to Dismiss (ECF No. 32) be GRANTED, that Petitioner's Motion to Stay (ECF No. 39) be DENIED, that Petitioner's Motion to Amend (ECF No. 38) be found MOOT, and the Petition be DISMISSED without prejudice.
The parties are directed to the next page for their rights to file objections to this 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 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).