Opinion
C/A No.: 1:20-cv-02601-TMC-SVH
01-25-2021
Eric Samuel, Petitioner, v. Charles Williams, Respondent.
REPORT AND RECOMMENDATION
Eric Samuel ("Petitioner") is an inmate at the Perry Correctional Institution of the South Carolina Department of Corrections. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 24, 25]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by November 16, 2020. [ECF No. 26]. After obtaining an extension [ECF No. 31], Petitioner filed a response on November 16, 2020 [ECF No. 33], to which Respondent replied on November 23, 2020 [ECF No. 35].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted. I. Factual and Procedural Background
In February 2001, the Charleston County grand jury indicted Petitioner for armed robbery (Indictment No. 2001-GS-10-0598) and assault and battery of a high and aggravated nature ("ABHAN") (Indictment No. 2001-GS-10-0599). [ECF No. 24-4 at 72-75]. On June 7, 2001, the State served Petitioner's attorney with notice of its intent to seek a sentence of life without parole ("LWOP"). Id. at 76-80.
On August 7, 2001, Petitioner, represented by Lori Proctor and Boyd Young ("Trial Counsel"), proceeded to trial before the Honorable Thomas L. Hughston, Jr., Circuit Court Judge. [ECF No. 24-1 at 4]. On August 28, 2001, the jury found Petitioner guilty as charged and Judge Hughston sentenced Petitioner to ten years' imprisonment for ABHAN and to LWOP for armed robbery. Id. at 88, 97.
On August 28, 2002, Appellate Defender Wanda H. Haile ("Appellate Counsel") appealed Petitioner's convictions and sentences through an Anders brief, raising the following issue:
Anders v. California, 386 U.S. 738, 744 (1967), requires that counsel who seeks to withdraw after finding the "case to be wholly frivolous" following a "conscientious examination" must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited.
The lower court erred in denying appellant's motion to suppress the statement given to police because it was not given voluntarily.[ECF No. 24-5 at 4]. Haile certified the appeal was without merit and asked to be relieved as counsel. Id. at 10-11. Petitioner filed two pro se responses to the Anders brief and presented the following additional issues:
1. The lower court judge erred by not allowing the appellant's counsel the opportunity to produce evidence and testimony concerning the voluntariness of the appellant's statement given to police once[] the appellant's counsel move to the court by a motion to sup[p]ress the appellant's statement.
2. The lower court judge erred by not allowing the appellant's counsel the opportunity to cross examine the police that took the appellant's statement concerning the voluntariness of the appellant's statement given to police once[] the appellant's counsel move to the court by a motion to sup[p]ress the appellant's statement.
3. The lower court judge erred by charging the criminal offense of strong armed robbery in the appellant's criminal case.
4. The lower court judge erred by not ruling or making any decision or a determination concerning the appellant's motion to sentencing under the S.C. "LWOP" statute.
5. The lower court judge erred by allowing hearsay within hearsay testimony at the appellant's criminal trial.
6. The lower court judge erred by sentencing the appellant under the S.C. "LWOP" statute bas[ed] upon the appellant's prior 1989 armed robbery conviction in violation of the ex post facto law prohibition.
7. The criminal indictments in the appellant's criminal case was insufficient because the criminal indictments failed to state the material elements of the criminal offenses.
8. The affidavits is not supported by the victim's sign written statement to support the probable cause to issue an arrest warrant to arrest the appel[l]ant in the appellant's criminal case.
9. The appellant's arrest was unlawful.
10. The state prosecuted the appellant on evidence obtain through the appellant's unlawful arrest.
11. The lower court erred by not making any determination regarding prejudicial effect as required under the S.C. rule of evidence.
12. The indictments failed to allege prior convictions.
13. The state failed to give the appellant full notice of predicate offenses it used to enhance the appellant's sentence.
14. The lower court lack subject-matter jurisdiction to sentence the appellant for a crime not appearing on the appellant's criminal indictments.
15. The appellant's arraignment was unnecessary delayed.
16. The appellant's trial counsel was ineffective by not inspecting a written police report or cross examining a witness that use a written police report to refresh his memory for the purpose of testifying.
17. The appellant's trial counsel was ineffective by not introducing into evidence the portion of the witness police report that relates to the witness testimony that the witness use to refresh his memory for the purpose of testifying.
18. The appellant's trial counsel was ineffective by not making any objections on the record concerning the judge sentencing the appellant without and before making a determination or a ruling on the appellant's motion to sentencing under the S.C. "L[WO]P" statute.
19. The appellant's appellate attorney was ineffective by not properly reviewing the request to charge and the appellant's trial transcript that obtain legal merits and legal errors for the appellant's criminal appeal.[ECF Nos. 24-6 at 5-8, 24-7 at 3-12 (errors in original)]. The South Carolina Court of Appeals ("Court of Appeals") dismissed Petitioner's appeal on May 15, 2003. State v. Samuel, Op. No. 2003-UP-327 (S.C. Ct. App. May 15, 2003) (unpublished).
20. Bias and prejudice criminal jury trial.
. . . .
21. The prosecutor's improper question violated the appellant's constitutional rights to a fair trial under the due process clause.
22. Lack of personal knowledge.
23. Improper evidence.
24. The applicant's constitutional rights was violated when the applicant was sentence under the unconstitutional South Carolina Code of Law and Statute 17-25-45(A).
25. The Applicant's criminal trial judge violated the applicant's constitutional rights to due process by not granting in full the applicant's request for individual inquiry of each prospective juror.
26. The magistrate judge and the detective J. Buncum sign the affidavit to the applicant's arrest warrant for the criminal offense of armed robbery committed perjury in the applicant's criminal case.
27. The applicant's constitutional rights to due process was violated regarding the applicant's rights to a preliminary hearing.
28. Ineffective assistance of counsel.
Respondent indicates Petitioner filed a Petition for Rehearing, which the Court of Appeals denied on June 26, 2003, and that the Remittitur issued on August 6, 2003. [ECF No. 24 at 3]. Respondent has not included these filings in the record provided to the court. Petitioner does not include this information in his petition, but also does not dispute it in his response. [See ECF Nos. 1 at 2-3, 33 at 1-6]. And, due to the age of the case and an apparent glitch on the South Carolina Judicial Branch's website, the undersigned is unable to access related filing information. However, the undersigned has used this later date, which is more favorable to Petitioner, in the statute of limitations analysis below.
On July 3, 2003, Petitioner filed his first application for post-conviction relief ("PCR") pro se and asserted the following grounds:
1. The Applicant's constitutional rights was violated when the Applicant was sentence under the unconstitutional South Carolina Code of Law and Statute 17-25-45(A).
2. The prosecutor's improper question violated the Applicant's constitutional rights to a fair trial under the Due Process Clause.
3. Lack of personal knowledge.
4. Improper evidence.
5. Ineffective assistance of counsel.
The Applicant's two criminal trial counsel was ineffective[] during the Applicant's criminal trial by not making any objections to the prosecutor's improper question to the state witness Jonathan Brown.
The Applicant's criminal trial counsel that was assisting the Applicant's court appointed counsel during the Applicant's criminal trial was ineffective[] by cross examining the state witness Jonathan Brown.
The Applicant's criminal trial counsel was ineffective[] by failing to file a timely suppression motion in the Applicant's criminal trial.
The Applicant's criminal trial counsel was ineffective[] by not making any objections to knife being placed into evidence in the Applicant's criminal case.
The Applicant's criminal trial counsel was ineffective[] by not requesting for the police incident report by the state witness Deputy David D. Willis.
The Applicant's criminal trial counsel was ineffective[] by making incriminating comments about the Applicant in the present of the jury.
The Applicant's criminal trial counsel was ineffective[] by arguing after being heard and the ruling of the court had been pronounced.
The Applicant's appellate defense counsel was ineffective[] by failing to request and receive a copy of the written request and receive a copy of the written request to charge and a copy of the written exhibits that was introduced at the Applicant's criminal trial.
6. The judge in the Applicant's criminal trial violated the Applicant's constitutional rights to due process.
7. The Applicant's criminal trial judge violated the Applicant's constitutional rights to due process by not granting the Applicant's request for individual inquiry of each prospective juror.
8. The Applicant's criminal trial judge errored by charging the criminal offense of strong armed robbery in the Applicant's criminal case.
9. The magistrate judge and the detective J. Buncum sign the affidavit to the Applicant's arrest warrant for the criminal
offense of armed robbery committed perjury in the Applicant's criminal case.
10. The Applicant's criminal indictment for the criminal offense of armed robbery was insufficient[] at the time of the Applicant's criminal trial because the indictment was not stamp with a receiving or a filing date with the clerk of court by the requirement of the S.C. Criminal Rule 5.
11. The Applicant was convicted of the criminal offense of assault and battery of a high and aggravated nature on a unconstitutional insufficient[] indictment that failed to state the material elements of the criminal offense plus the indictment was not stamp with a receiving or a filing date with the clerk of court by the requirements of the S.C. Criminal Rule 5.
12. The Applicant's constitutional rights to due process was violated regarding the Applicant's rights to a preliminary hearing.
13. The lower court judge erred by allowing hearsay within hearsay testimony at the App[lic]ant's criminal trial.
14. The Appellant's arrest was unlawful.
15. The state prosecuted the App[lic]ant on evidence obtain[ed] through the Appellant's unlawful arrest.
16. The lower court erred by not making a determination regarding prejudicial effect as required under the S.C. rules of evidence.
17. The lower court judge erred by sentencing the App[lic]ant under the S.C. "LWOP" statute basic upon the App[lic]ant's prior 1989 armed robbery conviction in violation of the ex post facto law prohibition.
18. The indictments failed to allege prior convictions.
19. The lower court lack subject-matter jurisdiction to enhance the App[lic]ant's sentence for a prior 1989 armed robbery
conviction not appearing on the App[lic]ant's criminal indictments.[ECF No. 24-2 at 116-24-3 at 19]. On December 29, 2005, Petitioner, through counsel Francis M. Ervin, II, amended his PCR application to add a claim that the affidavits supporting his arrest warrants contained false information, rendering them invalid. [ECF No. 24-3 at 31]. Petitioner filed a third amended PCR application pro se on April 26, 2006, asserting the insufficiency of the indictment and a lack of subject matter jurisdiction. Id. at 56.
This PCR application references a first amended application, [ECF No. 24-3 at 31], and Respondent indicates Petitioner filed an amendment on July 7, 2005, [ECF No. 24 at 3]. However, the undersigned is unable to locate a first amended application in the record.
The copy of Petitioner's third amended PCR application provided to the court is incomplete.
On September 11, 2006, the Honorable Daniel F. Pieper, Circuit Court Judge, conducted an evidentiary hearing, hearing testimony from Petitioner proceeding pro se and Trial Counsel. Id. at 68-69. Petitioner raised the following two grounds and associated ineffective-assistance-of-counsel claims: (1) Petitioner did not receive written notice of the State's intention to seek LWOP and (2) Petitioner's arrest was based on an insufficient warrant. Id. at 72-73.
After continuing the first hearing after Petitioner indicated he was unable to subpoena a witness, Judge Pieper convened a second evidentiary hearing on January 22, 2007. Id. at 102. Petitioner was represented at the hearing by Joseph Cadmus ("PCR Counsel") and proceeded on only one ground: "State failed to give applicant written notice of its intent to seek a life sentence without parole pursuant to 17-25-25(H)." Id. at 102-07.
On February 27, 2007, Judge Pieper ordered briefing on the impact of the South Carolina Supreme Court's reversal of controlling law in James v. State, 641 S.E.2d 899 (S.C. 2007). [ECF No. 24-4 at 22]. On March 13, 2007, Judge Pieper found Petitioner should have the opportunity to renew his previously-withdrawn PCR grounds. Id. at 24-25. On January 22, 2008, the Honorable Kenneth G. Goode, Circuit Court Judge, conducted a full evidentiary hearing. Id. at 26-48. Petitioner was again represented by Joseph Cadmus and the court heard testimony from Petitioner, Trial Counsel, and Julius Buncum, the officer who signed the affidavit supporting Petitioner's arrest warrant. Id. at 26-27. On February 26, 2008, Judge Goode issued an Order of Dismissal ("PCR Order"), denying and dismissing the PCR application with prejudice. Id. at 49-56. On April 16, 2008, the parties consented to amend the PCR Order to reflect Petitioner's renewed objection to the denial of his claim that he did not receive written notice of the State's intention to seek LWOP. Id. at 57. Petitioner did not move to alter or amend the PCR Order under SCACR 59.
On July 23, 2008, Petitioner appealed the PCR Order to the South Carolina Supreme Court through a petition for a writ of certiorari, filed by Appellate Defender Wanda H. Carter. [ECF No. 24-9]. Petitioner raised the following issues:
1. Trial counsel erred in failing to object to petitioner's life without parole sentence in the case because petitioner did not receive proper written notice of the state's intent to seek such a sentence per the requirements outlined via S.C. Code Ann. § 17-25-45(H).Id. at 3. The State filed its return to the petition on November 26, 2008. [ECF No. 24-10]. On January 6, 2009, the South Carolina Supreme Court transferred the appeal to the Court of Appeals, which denied the petition on December 2, 2009. [ECF Nos. 24-11, 24-12]. On December 10, 2009, Petitioner filed a pro se petition for rehearing [ECF No. 24-13], which the Court of Appeals denied on January 20, 2010 [ECF No. 24-14]. The remittitur issued on February 2, 2010. [ECF No. 24-15].
2. Trial counsel erred in failing to object to the sufficiency of the armed robbery arrest warrant in the case when the warrant was predicated upon the police officer's false statement presented to the magistrate regarding the incident. Without the false statement, there was no probable cause to support an armed robbery arrest warrant or charge against petitioner.
On February 11, 2010, Petitioner filed a petition for a writ of certiorari, attempting to appeal the Court of Appeals' decision to the South Carolina Supreme Court. [ECF No. 24-16]. The South Carolina Supreme Court dismissed the petition on February 12, 2010. [ECF No. 24-17].
On September 17, 2008, while his first PCR appeal was pending, Petitioner filed a second PCR application, alleging ineffective assistance of PCR Counsel. [ECF No. 24-18]. On April 27, 2009, the Honorable Deadra L. Jefferson, Circuit Court Judge, issued a conditional order of dismissal, finding the application successive and time-barred under state law. [ECF No. 24-20]. Petitioner filed "objections" to the conditional order on May 14, 2009. [ECF No. 24-21]. Petitioner also appealed the conditional order to the Supreme Court of South Carolina, which dismissed his appeal on June 9, 2009. [ECF No. 24-23]. On June 15, 2009, Judge Jefferson issued a final order of dismissal. [ECF No. 24-22].
On September 21, 2009, Petitioner filed a third PCR application, alleging newly-discovered evidence of procedural due process violations, lack of subject matter jurisdiction, and ineffective assistance of counsel. [ECF No. 24-24]. After briefing by the State, the Honorable R. Markley Dennis, Jr., Circuit Court Judge, issued a conditional order of dismissal, finding the application successive and time-barred under state law. [ECF No. 24-26]. On April 13, 2010, Petitioner drafted "oppositions" to the conditional order. [ECF No. 24-27]. Judge Dennis issued a final order of dismissal on September 28, 2010. [ECF No. 24-29].
Respondent notes Petitioner did not file this document. [ECF No. 24 at 15].
Respondent indicates Petitioner appealed the final order and the South Carolina Supreme Court dismissed the appeal on December 3, 2010. [ECF No. 24 at 15]. Corresponding filings do not appear in the record.
On March 9, 2010, Petitioner filed a fourth PCR application, alleging ineffective assistance of appellate counsel. [ECF No. 24-30]. After briefing by the State, Judge Dennis issued a conditional order of dismissal, finding the application impermissibly successive and time-barred under state law on May 17, 2010. [ECF No. 24-32]. Petitioner did not respond to the conditional order, and Judge Dennis issued a final order of dismissal on October 25, 2010. [ECF No. 24-33].
On June 29, 2010, Petitioner filed his first federal habeas petition pro se and alleged the following grounds:
Ground One: The Petitioner did not have written notice of the State's intention to seek a sentence of life without parole the Petitioner alleges ineffective assistance of counsel for failure to object to non compliance of the S.C. Code of Law Ann. 17-25-45(H) regarding the Petitioner's sentence under the S.C. Code of Law Ann. 17-25-45(H).
Supporting Facts:
A proper review of the Petitioner's PCR transcripts which the State made is very clear that per the record that the Petitioner was not served with the State's written notice of the State's intention to seek a sentence of life
without parole also a proper review of the Petitioner's trial transcript will clearly reveal no mention of the State serving the Petitioner with the State's written notice of the State's intention to seek a sentence of life without parole and no mention of the Petitioner's trial counsel objecting or making any objections to the Petitioner being sentence to life without parole under the S.C. Code of Law Ann. 17-25-45 for the Petitioner not being served with the State's written notice . . .
Ground Two: Ineffective assistance of counsel when trial counsel erred in failing to object to the sufficiency of the armed robbery and assault and battery of a high and aggravated nature arrest warrants.
Supporting Facts:
Samuel v. Cartledge, Civil Action No. 3:10-1610-HFF-JRM [ECF No. 24-52 at 5-9]. On November 10, 2010, Respondent moved for summary judgment. [ECF Nos. 24-53, 24-54]. The Honorable Joseph R. McCrorey, United States Magistrate Judge, issued a Report and Recommendation on July 8, 2011, recommending the court grant summary judgment. [ECF No. 24-55]. The Honorable Henry F. Floyd, United States District Judge, adopted the Report and Recommendation on September 27, 2011, granted Respondent's motion for summary judgment, and dismissed Petitioner's habeas petition without an evidentiary hearing. [ECF No. 24-56]. Petitioner appealed to the Fourth Circuit Court of Appeals, which denied a certificate of appealability in an unpublished per curiam opinion on January 25, 2013. [ECF No. 24-57].A proper review of the victim's sign written statement taken by the police officer that appeared before a judge with the victim's sign written statement seeking the armed robbery arrest warrant when the victim's sign written statement clearly did not mention that the Petitioner demanded money from the victim plus a proper review of the Petitioner's trial transcript with the victim testimony to the Petitioner's trial counsel that clearly states that the Petitioner never said give him the money or any words to that effect which the Petitioner's trial counsel did not move to suppress the arrest warrant for armed robbery after the victim testimony to the Petitioner's trial counsel that the Petitioner never said give him the money or any words to that effect to support the affidavit for the arrest warrant . . .
On July 14, 2011, Petitioner filed a fifth PCR application, raising the following grounds:
(A) I am filing this PCR under the S.C. Code of Law Title 17-27-45(c) discovery rule.[ECF No. 24-34 at 6-7]. On November 9, 2011, after briefing by the State, the Honorable Kristi L. Harrington, Circuit Court Judge, issued a conditional order of dismissal, finding the application impermissibly successive and time-barred. [ECF No. 24-36]. Petitioner responded on November 30, 2011 [ECF No. 24-37], and Judge Harrington issued a final order of dismissal on January 13, 2012 [ECF No. 24-38].
(B) The Applicant's procedural and due process rights and U.S.C.A. Const. 14th Amendment rights was violated.
(C) The Applicant's rights under the state constitution was violated when no Grand Jury was properly establish on Feb. 05, 2001 in Charleston County to indict the Applicant for the criminal offenses of armed robbery and assault and battery of a high and aggravated nature.
(D) No Grand Jury was properly establish under the law concerning the criminal allegations against the Applicant.
(E) The Applicant was held to answer in court for criminal offenses in violation of the S.C. Code of Law Title 17-19-10.
On October 31, 2012, Petitioner filed his sixth PCR application, alleging ineffective assistance of PCR Counsel for failing to file a Rule 59(e) motion and "signing and filing a untimely consent order to amend order of dismissal . . . when jurisdiction was lost." [ECF No. 24-39 at 4]. On April 21, 2014, after briefing by the State, the Honorable Stephanie P. McDonald, Circuit Court Judge, issued a conditional order of dismissal. [ECF No. 24-41]. Petitioner responded on May 5, 2014, and Judge McDonald issued a final order of dismissal on May 18, 2015, finding the application impermissibly successive and time-barred, and noting the inapplicability of Martinez v. Ryan, 566 U.S. 1 (2012) to Petitioner's claims. [ECF No. 24-42].
On April 2, 2014, the State moved to restrict Petitioner's filings pursuant to In re Theron Maxton, 478 S.E.2d 679 (1996). [ECF No. 24-43]. On April 21, 2014, Judge McDonald granted the State's motion and entered an order restricting Petitioner from further filing absent the required filing fee, a properly notarized affidavit certifying his good faith belief the matter was not frivolous, and a finding by the Chief Administrative Judge that the filing is proper ("Circuit Court Maxton Order"). [ECF No. 24-44].
On June 29, 2015, Petitioner appealed the dismissal of his sixth PCR application through an SCACR 243 Explanation. [ECF No. 24-45]. On July 31, 2015, the Supreme Court of South Carolina dismissed Petitioner's appeal and ordered Petitioner be prohibited from filing further collateral actions in the circuit court related to his 2001 convictions without first obtaining the South Carolina Supreme Court's permission ("Supreme Court Maxton Order"). [ECF No. 24-46]. The remittitur issued August 18, 2015. [ECF No. 24-47].
On September 25, 2018, Petitioner wrote Attorney General Alan Wilson and requested clarification and review of the Supreme Court Maxton Order. [ECF No. 24-59].
On December 7, 2018, Petitioner appealed a Charleston County Circuit Court order denying his motion to reconsider the Circuit Court Maxton Order. [ECF No. 24-48]. On December 19, 2018, the Supreme Court of South Carolina notified Petitioner he would need to file a proper petition for a writ of certiorari and appendix. [ECF No. 24-49]. Petitioner failed to file the necessary documents and the South Carolina Supreme Court dismissed his appeal on April 24, 2019. [ECF No. 24-50]. The remittitur issued on May 13, 2019. [ECF No. 24-51].
On May 28, 2019, Petitioner requested permission from the South Carolina Supreme Court to file another PCR application, habeas petition, or Rule 60(b) motion. The South Carolina Supreme Court denied his request on October 15, 2019. [ECF No. 24-60]. Petitioner then filed the present federal habeas petition on July 13, 2020. [ECF No. 1]. II. Discussion
This filing does not appear in the record.
A. Federal Habeas Issues
Petitioner raises the following grounds: Ground One: The Petitioner's procedural and due process rights under the State of South Carolina and the United States Constitutions was violated.
The Petitioner's procedural and due process rights under the State of South Carolina and the United States Constitutions was violated when the Petitioner receive a sentence of life without parole before the Petitioner first receive and with the Petitioner not receiving the State's written notice requirement of the State's intention to seek a sentence of life without parole ten (10) days before trial by the requirements of the S.C. Code Ann. 17-25-45 before the Petitioner receive a sentence of life without parole under the S.C. Code Ann. 17-25-45.Ground Two: The Petitioner's 14th Amendment rights under the State of South Carolina and the United States Constitutions was violated.
The Petitioner's 14th Amendment rights under the State of South Carolina and the United States Constitutions was violated when the Petitioner receive a life sentence without parole without the Petitioner first receiving the State's written notice requirement of the State's intention to seek a
life sentence without parole ten (10) days before trial under the S.C. Code Ann. 17-25-45 before the Petitioner was sentence to a life sentence without parole under the S.C. Code Ann. 17-25-45.Ground Three: The Petitioner's access to the state court rights under the State of South Carolina and the United States Constitutions is being violated.
The Petitioner's access to the state court rights under the State of South Carolina and the United States Constitutions is being violated by an order of the South Carolina Supreme Court dated July 31, 2015 prohibiting the Petitioner from filing any type of petition, application or motion in the state court challenging the Petitioner's 2001 convictions or sentences for armed robbery and assault and battery of a high and aggravated nature in the state court without first obtaining permission to do so from the South Carolina Supreme Court which the South Carolina Supreme Court will not entertain or give the Petitioner requested permission of the South Carolina Supreme Court to allow the Petitioner to file any type of petition, application or motion challenging the Petitioner's 2001 convictions or sentences in the state court.[ECF No. 1 at 5-11 (errors in original)].
B. Standard for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States[,]" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
28 U.S.C. § 2254.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007, decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
The United States Supreme Court has held that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"—which includes "petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court "both the operative facts and the controlling legal principles" associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). That is to say, the ground must "be presented face-up and squarely." Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court "outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan." 559 S.E.2d at 854. As such, it is an "extraordinary" remedy under O'Sullivan, "technically available to the litigant but not required to be exhausted," Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals without more is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals.
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with the state rule[,]" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986), superseded by statute on other grounds (AEDPA).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a "fundamental miscarriage of justice" has occurred. Murray, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of "cause," the court is not required to consider "actual prejudice." Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
Respondent asserts all three of Petitioner's grounds are barred by AEDPA's one-year statute of limitations. [ECF No. 24 at 25]. In addition, Respondent claims Grounds One and Two are successive and procedurally barred. Id. at 24-25, 26-29.
1. Improperly Successive
Under the AEDPA, "[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1). Respondent contends Petitioner raised Grounds One and Two in his first federal habeas petition and they are subject to dismissal as impermissibly successive. Petitioner asserts his petition "is not successive because the petitioner's claims of procedural due process rights and the petitioner's Fourteenth Amendment rights claims was not address in any federal habeas corpus petition filed by the petitioner in any United States District Court." [ECF No. 33 at 3]. Petitioner further alleges a genuine issue of fact exists as to "whether the petitioner's grounds one and two constitutional violations was raise and rule upon in the petitioner's first federal habeas corpus petition filed in 2010 so the Petitioner's petition is not improperly successive." Id.
Grounds One and Two are substantively the same ground—both allege the State's failure to serve Petitioner with written notice of its intent to seek LWOP violated his state and federal due process rights. Petitioner raised this same due process claim in his first federal habeas petition, along with a related ineffective-assistance-of-counsel claim [see ECF No. 24-52 at 5 ("Ground One: The petitioner did not have written notice of the State's intention to seek a sentence of life without parole")], and this court considered and ruled on that allegation [see ECF No. 24-55 at 11-12 ("In Ground One of the present petition, Samuel appears to couple a stand alone due process claim based on the failure to provide written LWOP notice with his ineffective assistance of counsel claim" and finding the due process claim procedurally barred)].
Further, even if Petitioner had not raised Grounds One and Two in his previous petition, then he must show they meet the statutory criteria in § 2244(b)(2) and seek the Fourth Circuit Court of Appeals' permission to file a second federal habeas petition under § 2244(3). Petitioner has not complied with these requirements.
2. Statute of Limitations
Under the AEDPA, a § 2254 petition must be filed within one year of the date on which the state court judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled during the pendency of a properly-filed state post-conviction action. § 2244(d)(2).
The Court of Appeals denied Petitioner's direct appeal on May 15, 2003, then denied Petitioner's petition for rehearing on June 26, 2003. Thus, the state court's judgment became final on July 28, 2003. See S.C. App. Ct. R. 242(c) (stating a petition for a writ of certiorari must be filed within 30 days after the Court of Appeals decides a petition for rehearing).
Petitioner filed his first PCR application, which presented the issues raised in Grounds One and Two, on July 3, 2003, before the limitations period began to run. This "properly filed application for State post-conviction relief" tolled the statute of limitations. 28 U.S.C. § 2244(d)(2). Thus, the statute of limitations did not begin to run until February 3, 2010, when the remittitur was filed in the Charleston County Clerk of Court's office. See Beatty v. Rawski, 97 F. Supp. 3d 768, 780 (D.S.C. 2015) (finding final disposition of a PCR appeal in South Carolina occurs when the remittitur is filed in the circuit court and the statute of limitations is tolled until that time). Accordingly, Petitioner had until February 3, 2011, to file a federal habeas petition raising Grounds One and Two. Therefore, to the extent these grounds were not raised or addressed in Petitioner's first federal habeas action, they are now barred by the statute of limitations.
The state court dismissed Petitioner's other five PCR actions as successive and time-barred under state law. Thus, they were not "properly filed" for tolling purposes. See Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005) (holding a state PCR application rejected as untimely under state law is not "properly filed" and not entitled to statutory tolling under § 2244(d)(2)).
Ground Three concerns the Supreme Court's Maxton Order, which issued on July 31, 2015. Petitioner had until approximately July 31, 2016, to file a federal habeas petition challenging that order. However, Petitioner did not raise any claims related to the Supreme Court's Maxton Order until he filed this action, almost four years after the expiration of the statute of limitations.
In Ground Three, Petitioner states his rights are being violated "by an order of the South Carolina Supreme Court dated July 31, 2015." [ECF No. 1 at 11].
Courts may equitably toll the statute of limitations when a petitioner demonstrates "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted). In the Fourth Circuit, equitable tolling is only appropriate in those "rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (internal quotation marks omitted)).
Petitioner only refers to the statute of limitations issue once in his response, stating a genuine issue of material fact exists as to "whether the statute of limitations bar the petitioner's petition for federal habeas corpus which the passage of 44 years since state prisoner was alleged denied his constitutional rights in state habeas corpus proceeding did not bar him from bring federal habeas corpus proceeding," followed by a cite to Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). [ECF No. 33 at 5]. In addition, Petitioner asserts he was not advised by the state court that he could appeal either the Circuit Court's or Supreme Court's Maxton Orders. Id. at 4.
Hawkins has no bearing on Petitioner's case. In Hawkins, a pre-AEDPA capital habeas case, the Eighth Circuit Court of Appeals remanded for an evidentiary hearing, finding the petitioner had not received a full and fair hearing in state court because he was "a man of limited education" and the state courts had repeatedly denied his requests for counsel. 423 F.2d at 950-51. Conversely, Petitioner was represented by counsel at both his PCR evidentiary hearings and on appeal. Moreover, recent decisions have recognized, "even in the case of an unrepresented prisoner, ignorance of the law is not a basis for equitable tolling." United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004); see also United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002) ("[A] petitioner's own ignorance or mistake does not warrant equitable tolling").
Accordingly, Petitioner fails to show he has been diligently pursuing his rights and that an external, extraordinary circumstance prevented him from timely filing this petition. Thus, Petitioner has not shown he is entitled to equitable tolling of the statute of limitations. Having found this petition barred by the statute of limitations, the court is precluded from addressing the merits of Petitioner's claims. See Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir. 1995) (finding once a claim is determined to be procedurally barred, the court should not consider the merits). III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Respondent's motion for summary judgment be granted and the petition be dismissed with prejudice.
IT IS SO RECOMMENDED. January 25, 2021
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).