Opinion
C. A. 8:22-cv-03004-TMC-JDA
06-20-2023
Mildred Monica Montgomery, Petitioner, v. Warden of Leath Correctional, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 23.] Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Proceeding pro se, Petitioner filed this Petition for writ of habeas corpus on August 31, 2022. [Doc. 1.] On January 27, 2023, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 22; 23.] On January 30, 2023, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if she failed to adequately respond to the motion. [Doc. 24.] On March 24, 2023, the Clerk docketed a response from Petitioner opposing Respondent's summary judgment motion. [Doc. 29.] Respondent filed a reply on April 10, 2023. [Doc. 34.] The motion is now ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, construing the filing date in the light most favorable to Petitioner, this action was filed on August 31, 2022. [Doc. 1-3 at 1 (Petition signed on August 31, 2022).]
BACKGROUND
Underlying Facts, Indictment, Trial, and Sentencing
The summary judgment record, viewed in the light most favorable to Petitioner, reveals the following.
Petitioner is confined in the South Carolina Department of Corrections (“SCDC”) pursuant to orders of commitment of the Florence County Clerk of Court. [Doc. 1 at 1.]
On July 17, 2016, Petitioner, with a group of her family and friends, visited the Down Beat Club (the “Club”) in Florence County. [App. 6. Jenny Smith, accompanied by a friend and some of her family, was also at the Club. [App. 6.] At some point, a fist-fight erupted between the two groups. [App. 6.] As Smith was attempting to break up the fight, Petitioner drew a gun and shot her in the chest, with the bullet passing within two inches of Smith's heart. [App. 6.] Smith was transported to the hospital and eventually survived. [App. 7.]
The Appendix can be found at Docket Entry Number 22-1.
On January 5, 2017, Petitioner was indicted for attempted murder and for possession of a weapon during a violent crime. [App. 69-70.] On April 10, 2017, Petitioner, represented by John Etheridge and Kevin Etheridge (collectively, “plea counsel”), pled guilty pursuant to a “negotiated plea/sentence” to the lesser included offense of assault and battery of a high and aggravated nature (“AGHAN”) before the Honorable William H. Seals. [App. 5-8.] After a plea colloquy, Judge Seals accepted the negotiated plea/sentence and sentenced Petitioner to 18 years' imprisonment. [App. 71.] Petitioner did not file a direct appeal.
Post-Conviction Relief (“PCR”) Proceedings
On September 22, 2017, Petitioner, proceeding pro se, filed a PCR application alleging the following ground for relief:
Counsel failed [and] refused to adequately communicate with [Petitioner] prior to going to court to fully understand the case, made an offer to [Petitioner] for a sentence range which [Petitioner] agreed to, then told [Petitioner] offer was rescinded, lied to [Petitioner] about a video in order to persuade her to plead, failed to counsel [Petitioner] in a fair manner, refused to favorably represent [Petitioner] and passed case over to son who was ineffective.[App. 12.]
A hearing was held on November 6, 2018, with Jonathon Waller representing Petitioner. [App. 23-57.] The PCR court received testimony from Petitioner, plea counsel, and Lloyd Flores, the assistant solicitor who prosecuted Petitioner's case. [App. 27-57; see App. 63.] The PCR court then denied and dismissed Petitioner's application with prejudice on March 27, 2019. [App. 59-68.]
Petitioner appealed. [Doc. 22-2.] On Petitioner's behalf, Lara M. Caudy of the South Carolina Commission on Indigent Defense filed a petition for writ of certiorari in the Supreme Court of South Carolina, dated October 4, 2019. [Id.] The Petition asserted the following issue:
Whether Petitioner's guilty plea was not knowingly, intelligently, and voluntarily made when plea counsel, who met with Petitioner on a mere two occasions, once at her bond hearing and then not again until the day of her plea, failed to adequately communicate with and advise Petitioner of her constitutional rights, the elements of the charged offenses, the
state's evidence against her, and the maximum penalties she faced, and where the colloquy between Petitioner and the plea judge failed to cure these deficiencies when the judge failed to (1) individually advise Petitioner of the constitutional rights she was waiving by pleading guilty and ensure she understood those rights, and (2) inform Petitioner of the nature and crucial elements of the offense to which she was pleading guilty, the maximum penalty she faced, or the consequences of her guilty plea?[Id. at 3.] The State filed a return to the petition for writ of certiorari on February 26, 2020. [Doc. 22-3.] The appeal was transferred to the South Carolina Court of Appeals, which filed an order denying certiorari on August 16, 2022. [Docs. 22-4; 22-5.] The remittitur issued on September 12 and filed on September 14, 2022. [Doc. 22-6.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on August 31, 2022. [Doc. 1.] Petitioner raises the following ground/facts for relief, quoted substantially verbatim, in her Petition pursuant to 28 U.S.C. § 2254:
GROUND ONE: Ineffective Counsel
Supporting facts: Petitioner was never adequately counseled / advised prior to her legal rights, or any available options before counsel pressed her to plead guilty on the day of her plea. Petitioner was led to believe there was some type of video that was detrimental to [her] case and if she did not enter a guilty plea, the outcome would be much worse. Petitioner was not allowed to see her discovery or any evidence used against her until after she was already serving the sentence in the case. She only saw counsel briefly at a bond hearing, then on the day of her plea, and only spoke to him by phone 2 times for about 5 minutes, during which she was not given counsel, options, or otherwise advised of the manner in which she could proceed. Also, [Petitioner] was not advised she could appeal.[Id. at 5.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe her pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for her. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in her pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, she must produce existence of a factual dispute on every element essential to her action that she bears the burden of adducing at a trial on the merits.
Habeas Corpus
Generally
Because Petitioner filed the Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of her 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 in the State court proceeding.28 U.S.C. § 2254(d). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision,” and “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101-02 (2011). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
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 her claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to first submit her claims for relief to the state courts. A habeas corpus petition filed in this Court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(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.28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust her state court remedies. Id. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must fairly present h[er] claim to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). 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 her conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue she failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed her state remedies and, as such, is procedurally barred from raising the issue in her federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. see S.C. Code Ann. § 1727-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, she is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3), 243. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:
. . . [State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of h[er] claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on h[er] case.Reed, 468 U.S. at 10-11.
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, she has procedurally bypassed her opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915.
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances-where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or where a “fundamental miscarriage of justice” has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if she can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, she must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
As an alternative to demonstrating cause for failing to raise the claim, the petitioner may show a miscarriage of justice. To demonstrate a miscarriage of justice, the petitioner must show she is actually innocent. See Carrier, 477 U.S. at 496 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of someone who is actually innocent”). Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). To demonstrate this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
DISCUSSION
Procedural Bar
Respondent argues that a portion of Ground One-her contention that counsel failed to advise her of her right to appeal her guilty plea-is procedurally barred because it was not raised on appeal from the denial of PCR. [Doc. 22 at 13.] In her response in opposition to the motion for summary judgment, Petitioner does not address the procedural default question. [Doc. 29.]
The issue Respondent identifies, although ruled on by the PCR Court [App. 66], was indeed not raised on appeal from the denial of PCR [Doc. 22-2]. Therefore, this issue was not fairly presented to the Supreme Court of South Carolina and is procedurally barred from federal habeas review unless Petitioner has demonstrated (1) cause for the procedural default and actual prejudice resulting from the alleged constitutional violation or (2) that a fundamental miscarriage of justice has occurred. See Coleman, 501 U.S. at 750 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review); Wainwright, 433 U.S. at 87; Matthews, 105 F.3d at 915. Because Petitioner does not raise cause and prejudice, the Court cannot consider Petitioner's procedurally defaulted claim that she was not advised of her right to appeal her guilty plea. See Kornahrens, 66 F.3d at 1362-63.
The Court notes that Martinez v. Ryan, 566 U.S. 1 (2012), does not apply to claims of ineffective assistance of PCR appellate counsel. Cross v. Stevenson, No. 1:11-cv-02874-RBH, 2013 WL 1207067, at *3 (D.S.C. Mar. 25, 2013).
The Court therefore recommends that Respondent's summary judgment motion be granted and the Petition dismissed with prejudice to the extent the Petition is based on Petitioner's claim that she was not advised of her right to appeal her guilty plea.
The AEDPA Standard
As for the remainder of Ground One, Respondent argues that summary judgment should be granted against Petitioner on the basis that the AEDPA standard has not been met to the extent the ground is not procedurally defaulted. [Doc. 22 at 22-32.] The Court agrees.
Under the AEDPA, a federal court may not grant relief unless the underlying state court decision was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court, id. § 2254(d)(2). The Supreme Court has held the “contrary to” and “unreasonable application of” clauses present two different avenues for relief. Williams, 529 U.S. at 405. The Court stated there are two instances when a state court decision will be contrary to Supreme Court precedent:
A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.... A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.Id. at 405-06. Additionally, a state court decision is an unreasonable application of Supreme Court precedent when the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. at 407-08; see also Richter, 562 U.S. at 102 (“Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.... It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). Finally, a decision cannot be contrary to or an unreasonable application of Supreme Court precedent unless applicable Supreme Court precedent exists; without applicable Supreme Court precedent, there is no habeas relief for petitioners. Virsnieks v. Smith, 521 F.3d 707, 716 (7th Cir. 2008); see Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008).
Analysis of the PCR Court
As is relevant here, the PCR Court analyzed the claims before it as follows:
The issue before the [PCR Court] is whether [Petitioner's] guilty plea was the result of ineffective assistance of counsel. To establish ineffective assistance of counsel, the PCR applicant must prove (1) counsel's performance fell below an objective standard of reasonableness, and (2) the applicant sustained prejudice as a result of counsel's deficient performance. Stricklandv. Washington, 466 U.S. 668, 687-88 (1984); Cherry v. State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989). “The test for effective assistance of counsel is whether the representation was within the range of competence demanded of attorneys in criminal cases.” Watson v. State, 287 S.C. 356, 357, 338 S.E.2d 636, 637 (1985).
The test 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.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). A defendant who enters a plea with the advice of counsel may only attack counsel's representation relating to the voluntary and intelligent nature of the plea. Roscoe v. State, 345 S.C. 16, 20, 546 S.E.2d 417, 419 (2001). For a plea to be voluntarily and intelligently entered, “[The] defendant . . . must be aware of the nature and crucial elements of the offense, the maximum and any mandatory minimum penalty, and the nature of the constitutional rights being waived.” Pittman v. State, 337 S.C. 597, 599, 524 S.E.2d 623, 624 (1999). To prove prejudice, the applicant must show a reasonable probability she would not have pled guilty and would have insisted on going to trial absent plea counsel's alleged deficiency. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
At the PCR hearing, [Petitioner] and plea counsel agreed [Petitioner] pled guilty with plea counsel's advice. The Court finds [Petitioner] pled guilty after being advised by plea counsel; therefore, the issue before the Court is whether [Petitioner's] plea was knowing and voluntary.
As mentioned above, [Petitioner] alleges plea counsel was ineffective for: (1) failure to communicate with [Petitioner]; and (2) failure to advise [Petitioner]. For the reasons stated below, the Court finds [Petitioner's] allegations are without merit, denies relief, and dismisses the PCR action with prejudice.
1. Failure to Communicate
[Petitioner] alleges [plea counsel] were ineffective for failure to properly communicate with her leading up to her guilty plea. Specifically, [Petitioner] claims she only conferred with [Kevin Etheridge] two times (the day of her bond hearing and the day she pled guilty), and she believed Johnny Etheridge, not [Kevin Etheridge], represented her. For the reasons, stated below, the Court finds these allegations are without merit.
“The test for effective assistance of counsel is whether the representation was within the range of competence demanded of attorneys in criminal cases.” Watson v. State, 287 S.C. 356, 357, 338 S.E.2d 636, 637 (1985). Counsel must communicate all plea offers made by the State. Davie v. State, 381 S.C. 601, 610, 675 S.E.2d 416, 421 (2009), abrogated on other grounds by Smalls v. State, 422 S.C. 174, 810 S.E.2d 836 (2018). However, counsel is presumed to have adequately assisted and exercised reasonable professional judgment in making decisions in the case. Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60, 64 (2011).
[Petitioner] has failed to show any deficiency of communication regarding [plea counsel's] representation. Johnny Etheridge credibly testified he spoke to [Petitioner] by phone on two or three occasions, he explained to [Petitioner] he and [Kevin Etheridge] worked on cases together, and that she retained [their law firm's] representation. [Kevin Etheridge] explained he communicated all of the State's offers to [Petitioner] and advised her to accept the State's offer because it prevented a strike on her record. [Petitioner] may feel as though [plea counsel] did not communicate enough with her; however, it is apparent from [plea counsel's testimony] that they reasonably communicated with [Petitioner].
The Court finds [Petitioner] has failed to show any deficiency in regard to her ability to communicate with [plea counsel]. Further, [Petitioner] has failed to show how she was prejudiced from either counsel's alleged lack of communication because [Kevin Etheridge] met and conferred with [Petitioner] prior to [Petitioner's] plea. [Petitioner] stated she was satisfied with [Kevin Etheridge's] representation the day of her plea, she cannot now change her opinion through hindsight. Therefore, the Court denies relief and dismisses the allegation with prejudice.[App. 63-65.]
Discussion
In her response opposing summary judgment Petitioner continues to argue that plea counsel's performance was deficient. Importantly, though, “[t]he two prongs of the Strickland test are separate and distinct elements of an ineffective assistance claim, and a successful petition must show both deficient performance and prejudice.” Sigmon v. Stirling, No. 8:13-cv-01399-RBH, 2018 WL 4691197, at *6 (D.S.C. Sept. 30, 2018). “Therefore a court need not review the reasonableness of counsel's performance if a petitioner fails to show prejudice.” Id. Petitioner does not challenge the PCR Court's prejudice finding that she failed to demonstrate that but for counsel's deficient performance, there is a reasonable probability that she would have insisted on going to trial. And, in any event, the Court knows of no reason why the finding was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court. Accordingly, Petitioner has not shown entitlement to habeas relief concerning the portion of Ground One that is not procedurally defaulted.
In Strickland, the United States Supreme Court established that to challenge a conviction based on ineffective assistance of counsel, a prisoner must prove two elements: (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. 466 U.S. at 687. To satisfy the first prong, a prisoner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. To satisfy the second prong, a prisoner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The Supreme Court has cautioned that “[j]udicial scrutiny of counsel's performance must be highly deferential,” and “[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. In the specific context of a guilty plea, to satisfy the prejudice prong of Strickland, a prisoner must show that “there is a reasonable probability that, but for counsel's errors, [the prisoner] would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59.
Petitioner was facing 30 years for the attempted murder charge, see S.C. Code § 16-3-29, and five years on the gun charge, see S.C. Code § 16-23-490. [App. 49.] At the PCR hearing, Kevin Etheridge testified that as a result of plea negotiations, the State agreed to reduce the charge from attempted murder to ABHAN with an 18-year negotiated sentence. [App. 45, 49.] Petitioner testified that she pled guilty because counsel had advised her that she was not going to be able to win at trial and he believed she would end up with a sentence of 25 years to life imprisonment if she went to trial. [App. 35.] She testified that she would have preferred that plea counsel had discussed her case with her in greater detail; that she provided them with some names of potential witnesses but did not know if the witnesses were ever contacted; and that had counsel provided the greater explanation and contacted the witnesses, she would have rejected the plea offer and gone to trial. [App. 33, 37-38.] Petitioner offers no explanation as to why those actions by her plea counsel would have changed her plea decision and certainly does not explain why it was unreasonable for the PCR Court to find that she failed to prove that there was a reasonable probability that she would have gone to trial but for plea counsel's deficient performance.
In sum, the Court concludes that Petitioner's claim that counsel failed to advise her that she could appeal from her guilty plea is procedurally defaulted and that Petitioner has failed to satisfy the AEDPA standard regarding the PCR court's finding that Petitioner failed to show Strickland prejudice from plea counsel's other alleged deficiencies. Accordingly, the Court recommends that Respondent's motion for summary judgment be granted and the Petition be denied.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment [Doc. 23] be GRANTED and the Petition [Doc. 1] be DENIED.
IT IS SO RECOMMENDED.