Opinion
2:23-cv-01447-HMH-MGB
11-28-2023
Lucius Simuel, Petitioner, v. Warden Levern Cohen, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Lucius Simuel, a state prisoner proceeding pro se, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1.) This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 18.) Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the Petition and submit findings and recommendations to the United States District Judge. For the reasons set forth below, the undersigned RECOMMENDS that Respondent's Motion for Summary Judgment (Dkt. No. 18) be GRANTED.
BACKGROUND
Petitioner is currently housed in the Ridgeland Correctional Institution of the South Carolina Department of Corrections. In September of 2008, a Beaufort County Grand Jury indicted Petitioner for first degree burglary and assault and battery with intent to kill. (Dkt. No. 17-5 at 92-99.)In June of 2009, a Beaufort County Grand Jury indicted Petitioner for unlawful possession of a weapon by a prohibited person. (Id.) Petitioner was represented by Assistant Public Defender Ian C. Deysach on all charges. (Dkt. No. 17-1 at 3.) On September 1, 2009, the Solicitor's Office notified Petitioner of their intent to “seek the penalty of life in prison without the possibility of parole pursuant to S.C. Code § 17-25-45 ....” (Dkt. No. 21-1 at 32.)
This Report and Recommendation reflects the pagination assigned by the Court's automated docketing system.
Petitioner's case proceeded to a jury trial before the Honorable Thomas W. Cooper, Jr., which began on November 16, 2009. (Dkt. Nos. 17-1, 17-2, 17-3, 17-4 at 1-176.) On November 20, 2009, the trial concluded, and the jury convicted Petitioner as charged. (Dkt. No. 17-4 at 175.) Petitioner was sentenced to life without parole. (Id.)
Petitioner directly appealed his conviction and sentence. (Dkt. No. 17-4 at 178.) His direct appeal was ultimately denied by the South Carolina Supreme Court, and his convictions and sentence were affirmed. (Id.; Dkt. No. 17-5 at 3.) The remittitur was issued on August 10, 2012. (Dkt. No. 17 at 12; Dkt. No. 17-5 at 3.)
On February 4, 2013, Petitioner, through counsel, filed an application for post-conviction relief (“PCR”). (Dkt. No. 17-4 at 177; Dkt. No. 17-10.) Petitioner's PCR counsel filed an amendment to his application on March 17, 2015. (Dkt. No. 17-5 at 3.) Petitioner's counsel further amended Petitioner's application at the October 20, 2015 PCR hearing before the Honorable Rodger L. Couch. (Id.) During that hearing, Petitioner's PCR counsel argued, inter alia, that Petitioner's trial counsel was ineffective. (Id. at 5.) According to Petitioner's PCR counsel, Petitioner's trial counsel failed to advise Petitioner that he was subject to life without parole when communicating the State's plea offer. (Id.) Petitioner and his trial counsel, Ian C. Deysach, both testified at the hearing. (Id. at 3-75.) On January 28, 2016, the PCR Court issued an Order of Dismissal denying Petitioner's application, with prejudice. (Id. at 77-85.)
Petitioner then filed a Motion to Alter and Amend Judgment. (Id. at 86-88.) The PCR Court denied this Motion on June 29, 2016. (Id. at 90-91.) On August 3, 2016, Petitioner filed a Notice of Appeal with the South Carolina Supreme Court. (Dkt. No. 17-6.) Petitioner then filed a Petition for Writ of Certiorari on April 10, 2017. (Dkt. No. 17-7.) The case was transferred to the South Carolina Court of Appeals pursuant to Rule 243 of the South Carolina Appellate Court Rules. (Dkt. No. 17 at 5; Dkt. No. 17-8.) Following a hearing, a three-judge panel affirmed the PCR Court's decision. (Dkt. No. 17-8.) The remittitur was filed in the Beaufort County Clerk's Office on November 3, 2020. (Dkt. Nos. 17-9, 17-10.)
PROCEDURAL HISTORY
Petitioner filed the instant Petition on or around April 10, 2023. (Dkt. No. 1.) In his Petition, he raises the following ground for relief (verbatim):
Ground One: 6th Amendment Ineffective Assistance of Counsel
Supporting Facts: Counsel provide effective assistance of counsel where trial counsel erroneously advised Petitioner that he would not be eligible for a mandatory life without parole sentence under S.C. Code Ann. § 17-25-45 if convicted at trial because defense counsel erroneously advised Petitioner that his prior conviction for false imprisonment in GA could not qualify as a predicate violent crime in S.C.(Id. at 11.)
After requesting and receiving extensions of time, Respondent filed a Return and Motion for Summary Judgment on August 21, 2023. (Dkt. Nos. 17, 18.) Petitioner filed a Response to the Motion for Summary Judgment on September 12, 2023. (Dkt. No. 21.) Respondent declined to reply by the September 19, 2023 deadline. (Id.) Accordingly, the Motion before the Court has been fully briefed and is ripe for habeas review.
LEGAL STANDARD
I. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Rule 12, Rules Governing § 2254 Cases (stating courts may apply in habeas cases any of the Federal Rules of Civil Procedure to the extent they are not inconsistent with statutes or the § 2254 rules). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “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). In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” The News & Observer Publ'g Co., 597 F.3d at 576 (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
II. Habeas Standard of Review
Habeas corpus in federal court exists to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation and internal quotation marks omitted). Federal habeas is neither an alternative to state-court relief nor an additional chance to appeal erroneous state-court rulings. See id. That preference for, and deference to, state courts is borne out in the various constraints placed on federal courts. See Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (stating § 2254 “imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases”); see also Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (stating § 2254 “reflect[s] a presumption that state courts know and follow the law” (citation and internal quotation marks omitted)).
Since the Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding.28 U.S.C. § 2254(d); 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.” Williams, 529 U.S. at 410. “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.” Harrington, 562 U.S. at 86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Federal courts must also defer to state courts' factual determinations, which are presumed correct until the prisoner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
In addition, before state prisoners may try to clear those high hurdles, two rules steer them to first pursue all relief available in the state courts. See 28 U.S.C. § 2254(b)(1). The first, known as exhaustion of remedies, requires a prisoner to present his claims to the highest state court with jurisdiction to decide them. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). A federal court cannot grant a prisoner's habeas corpus petition until he exhausts his state-court remedies. 28 U.S.C. § 2254(b)(1), (c). The second rule, called procedural default, comes into play when a prisoner failed to present a claim to the state courts at the appropriate time and has no means of doing so now. Stewart, 701 F.Supp.2d at 790. Federal courts may not consider a procedurally defaulted claim unless the prisoner shows either that he has cause for defaulting and that the alleged violation of federal law prejudiced him or that not addressing the claim would be a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In considering whether Petitioner should receive habeas relief under these standards, the undersigned has carefully considered the record before the Court.
DISCUSSION
Respondent argues that summary judgment is appropriate here because the Petition is barred by the one-year statute of limitations imposed by the AEDPA. (See generally Dkt. No. 17.) More specifically, Respondent contends that the Petition was not timely filed, and Petitioner is not entitled to equitable tolling. (Id.) Respondent further claims that the Petition fails on the merits. (Id.) For the reasons set forth below, the undersigned agrees with Respondent and therefore RECOMMENDS that Respondent's Motion for Summary Judgment (Dkt. No. 18) be GRANTED.
I. Statute of Limitations
A. Legal Standard
Pursuant to the AEDPA, a person “in custody pursuant to the judgment of a State court” and who seeks federal habeas relief is subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The one-year period to file a § 2254 petition commences upon the latest of the following dates:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(A)-(D). Here, the AEDPA's one-year statute of limitations began running at the “conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment of conviction therefore became final “when his time for seeking review with the State's highest court expired.” Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)). The one-year period to file a § 2254 petition, however, is tolled during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
Even if the limitations period is not tolled under the statute, a § 2254 petition may nevertheless be considered timely if the petitioner can demonstrate that he is entitled to equitable tolling of the limitations period. The Supreme Court recognized that the limitations period may be equitably tolled if the petitioner shows (1) he has been diligently pursuing his rights and (2) some extraordinary circumstance stood in his way, preventing him from timely filing his habeas petition. Holland v. Florida, 560 U.S. 631, 649 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Therefore, “specific circumstances . . . could warrant special treatment in an appropriate case.” Id. at 650. The Fourth Circuit has nevertheless cautioned that the application of equitable tolling should “be guarded and infrequent,” and “reserved for 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.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
Here, the undersigned recommends granting Respondent's Motion for Summary Judgment because the instant Petition is barred by the statute of limitations. Petitioner did not timely file this Petition within the one-year limitations period outlined in § 2244(d)(1)(A), and he is not entitled to equitable tolling.
B. Timeliness
Petitioner's convictions and sentence were entered on November 20, 2009. (Dkt. No. 174 at 175, 177.) Petitioner then filed a notice of appeal of his convictions and sentence. (Id. at 178; Dkt. No. 17-5 at 3.) Petitioner's appeal was ultimately denied on July 25, 2012. (Dkt. No. 1 at 8.) The remittitur was issued on August 10, 2012, and filed on August 13, 2012. (Dkt. No. 17 at 12; Dkt. No. 17-5 at 3.)
On February 4, 2013, Petitioner filed his PCR application, tolling the statute of limitations. (Dkt. No. 17-5 at 177; Dkt. No. 17-10.) Prior to that date, one hundred and seventy-five (175) days had lapsed against the statute of limitations, leaving Petitioner one hundred and ninety (190) days to timely file a federal habeas petition after the statute of limitations resumed.
On February 8, 2016, Petitioner's PCR application was dismissed. (Dkt. No. 17-5 at 7785; Dkt. No. 17-10.) Three days later, on February 11, 2016, Petitioner filed a Motion to Alter and Amend Judgment. (Dkt. No. 17-5 at 86-88.) The PCR court denied Petitioner's Motion on June 12, 2016. (Id. at 90-91.) On August 3, 2016, Petitioner filed a notice of appeal with the South Carolina Supreme Court. (Dkt. No. 17-6.) He then filed a Petition for Writ of Certiorari with the South Carolina Supreme Court on April 10, 2017. (Dkt. No. 17-7.) The South Carolina Supreme Court transferred the case to the South Carolina Court of Appeals, which issued a decision affirming the PCR court's decision on October 7, 2020. (Dkt. No. 17-8.) The remittitur was filed on November 3, 2020. (Dkt. Nos. 17-9, 17-10.)
Based on the foregoing, the statute of limitations remained tolled until, at the latest, November 3, 2020.Petitioner's statute of limitations began to run again on November 4, 2020. The one-year statute of limitations thus expired in May of 2021, one hundred and ninety (190) days after the remittitur was filed. However, Petitioner did not file the instant Petition until April 10, 2023-nearly two years later. (Dkt. No. 1.) The Petition is therefore untimely.
“South Carolina district courts have offered varied opinions on whether (1) the decision date, (2) the remittitur date, or (3) the date of receipt of the remittitur controls for purposes of calculating the statute of limitations. Brown v. Warden of Perry Corr. Inst., No. 5:22-CV-352-HMH-KDW, 2022 WL 17559867, at *5 (D.S.C. Nov. 21, 2022), adopted, 2022 WL 17555509 (D.S.C. Dec. 9, 2022) (referencing Smith v. Warden, Lieber Corr. Inst., No. 4:13-CV-3090-BHH, 2014 WL 5503529, at *6 (D.S.C. Oct. 30, 2014); Johnson v. Warden, Lee Corr. Inst., No. 2:14-CV-0768 DCN, 2015 WL 1021115, at *9 (D.S.C. Mar. 9, 2015); Beatty v. Rawski, No. 1:13-CV-3045-MGL-SVH, 2015 WL 1518083, at *2-6 (D.S.C. Mar. 31, 2015)). Out of an abundance of caution, the undersigned has. used the latest possible date here.
C. Equitable Tolling
Equitable tolling cannot save the instant Petition. Petitioner argues that he is entitled to equitable tolling because he encountered extraordinary circumstances that prevented him from timely filing his Petition. (Dkt. Nos. 21-3, 21-4.) More specifically, he contends that he did not have access to “legal materials” from July 2019 through July 2023. (Dkt. Nos. 21-3, 21-4.) He claims that he was “separated” from his legal materials when he was placed in the Restricted Housing Unit (“RHU”) at McCormick Correctional Institution on July 12, 2019, and that the materials were not returned to him, even after he was released from RHU and transferred to Ridgeland Correctional Institution. (Dkt. No. 21-3; Dkt. No. 21-4.) According to Petitioner, his legal materials were not returned to him until July 12, 2023, after he submitted requests for access to his materials. (Dkt. Nos. 21-3, 21-4.)
As noted above, the Fourth Circuit has underscored that very limited circumstances will justify equitable tolling:
[A]ny invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes. To apply equity generously would loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation. We believe, therefore, that any resort to equity must be reserved for 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.Harris, 209 F.3d at 330.
Here, Petitioner has not alleged facts sufficient to justify equitable tolling. At the outset, it is well settled that a delay in receiving legal materials generally does not qualify as an extraordinary circumstance warranting equitable tolling. See, e.g., Ayton v. Williams, No. 9:19-CV-03234-DCN-MHC, 2020 WL 13739268, at *6 (D.S.C. Nov. 19, 2020) (explaining that the petitioner's alleged delay in receiving his legal materials after transfer to new institution, without more, could not satisfy the petitioner's burden to show that he diligently pursued his rights or that extraordinary circumstances prevented him from timely filing his petition), adopted, 2021 WL 11133507 (D.S.C. Mar. 9, 2021); Grant v. Bush, No. 6:14-CV-01313-DCN, 2015 WL 4747104, at *8 (D.S.C. Aug. 11, 2015) (holding a transfer resulting in a delay of receipt of legal paper work does not amount to an extraordinary circumstance); Wright v. McFadden, No. 5:14-CV-00282-TLW, 2014 WL 6666681, at *2 (D.S.C. Nov. 24, 2014) (holding a prison riot resulting in seizure of legal materials does not amount to an extraordinary circumstance).
Further, the supporting documents provided by Petitioner show that he was aware of his missing legal materials as early as July 13, 2019. (Dkt. No. 21-4 at 1.) However, he provides evidence of only three requests for access to those missing materials. (See generally id.) Petitioner does not describe any additional steps taken to obtain his legal materials throughout the four years he allegedly could not access them. (Dkt. Nos. 21-3, 21-4.) As such, Petitioner has failed to show that he acted with due diligence sufficient to warrant equitable tolling of the limitations period. See May v. Warden of Goodman Corr. Inst., No. 5:22-CV-417-RMG-KDW, 2022 WL 18635155, at *4-5 (D.S.C. Nov. 3, 2022), adopted, 2023 WL 154938 (D.S.C. Jan. 11, 2023). In addition, Petitioner does not explain why the missing legal papers caused him to delay his habeas filing, nor does he identify what information he needed from the missing papers. In fact, the record before the Court shows that Petitioner filed the instant Petition several months before he finally accessed his legal materials in July of 2023. (Dkt. Nos. 1, 21-4.) Petitioner's contentions that he needed his legal materials in order to file his Petition are therefore unconvincing. Based on the foregoing, the undersigned recommends that Petitioner has failed to demonstrate that this case presents the type of “specific circumstances” that warrant “special treatment” such that equitable tolling is appropriate. See Holland, 560 U.S. at 650 (2010) (citing Pace, 544 U.S. at 418). Accordingly, the Petition should be dismissed as untimely.
Petitioner also claims that he is entitled to equitable tolling because he is actually innocent of the crimes for which he was convicted. (Dkt. No. 1 at 19.) However, he presents no evidence or arguments to support this assertion. (Id.) Regardless, claims of actual innocence, without more, do not warrant equitable tolling. See Jones v. South Carolina, No. 4:05-CV-2424-CMC-TER, 2006 WL 1876543, at *3 (D.S.C. June 30, 2006) (noting “[o]ther courts addressing equitable tolling have found that ‘extraordinary circumstances' are not: having an inadequate law library, attorney error, claims of actual innocence, reliance on other inmates' advice, ignorance of the AEDPA filing deadline, or even (in some instances) petitioner illness”).
II. Merits
Even assuming, arguendo, that the instant Petition was timely filed, or that equitable tolling is appropriate in this instance, the Petition should still be dismissed because Petitioner's sole ground for relief fails on the merits. As noted, the Petition asserts that Petitioner was deprived of effective assistance of counsel. (Dkt. No. 1.) Petitioner claims that his trial counsel erroneously advised him “that he would not be eligible for a mandatory life without parole sentence . . . if convicted at trial” based on his prior conviction for false imprisonment in Georgia. (Id. at 11.) The undersigned considers Petitioner's argument, below.
Petitioner's Response to Respondent's Motion for Summary Judgment, attempts to raise additional grounds for relief not mentioned in the Petition. (See generally Dkt. No. 21.) However, “Petitioner cannot amend his petition by way of his response to the motion for summary judgment.” Amerson v. Stevenson, No. 4:11-CV-3266-DCN-TER, 2012 WL 1897851, at *5 (D.S.C. May 1, 2012), adopted, 2012 WL 1898623 (D.S.C. May 23, 2012); see also Toese v. Stonebreaker, No. 1:22-CV-4436-BHH-SVH, 2023 WL 6119716, at *5 (D.S.C. Aug. 25, 2023), adopted, 2023 WL 6119726 (D.S.C. Sept. 18, 2023); Rogers v. Dodkin, No. 1:22-CV-03348-DCC-SVH, 2023 WL 4238467, at *3 (D.S.C. May 3, 2023), adopted, 2023 WL 4235562 (D.S.C. June 28, 2023). Accordingly, such claims are not properly before the Court, and the undersigned declines to address them. See Folkes v. Nelsen, 34 F.4th 258, 269 (4th Cir. 2022) (citations omitted) (emphasis added) (holding that the “court must consider claims as they are presented in the petition, reviewing them under the applicable standard.... [and it is] the district court's duty to consider only the specific claims raised in a § 2254 petition”).
A. Legal Standard
Under the Sixth Amendment, Petitioner, as a criminal defendant, had a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). Petitioner may prove ineffective assistance of counsel by showing that his attorney's performance was deficient, and that such deficiency prejudiced him. Id. at 687. An attorney's performance is deficient if it was unreasonable under the circumstances of the case and under then-prevailing professional norms. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Prejudice is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” means “a probability sufficient to undermine confidence in the outcome.” Kimmelman, 477 U.S. at 384.
Strickland is highly deferential to counsel, and § 2254(d) is highly deferential to state courts. Harrington, 562 U.S. at 105. That means when a state court has adjudicated an ineffective assistance claim on the merits, this Court's review is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In other words, the question becomes “not whether counsel's actions were reasonable,” but “whether there is any reasonable argument that [Petitioner's] counsel satisfied Strickland's deferential standard.” Harrington, 562 U.S. at 105.
Where, as here, habeas claims are considered on the merits in state court proceedings, this Court must apply a highly deferential standard of review. See 28 U.S.C. § 2254(d). In other words, the Court may not grant relief unless a state court decision on the merits “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id.
To qualify as “contrary to” United States Supreme Court precedent, a state court decision either must arrive at “a conclusion opposite to that reached by [the United States Supreme] Court on a question of law” or “confront[ ] facts that are materially indistinguishable from a relevant [United States] Supreme Court precedent and arrive[ ] at a result opposite” to the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves an unreasonable application” of United States Supreme Court case law “if the state court identifies the correct governing legal rule from [the United States Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407. This Court must presume state court findings correct unless clear and convincing evidence rebuts them. 28 U.S.C. § 2254(e)(1).
B. Analysis
Here, the PCR court considered Petitioner's ineffective assistance of counsel argument and found it unpersuasive. More specifically, the PCR court conducted an evidentiary hearing and considered testimony from Petitioner and his trial counsel before determining that Petitioner “ha[d] not established any constitutional violations or deprivations that would require this court to grant his application.” (Dkt. No. 17-5 at 3-84.)
At the hearing, Petitioner testified that he received a letter stating that the State was seeking a sentence of life without parole. (Id. at 15.) Petitioner also testified that his trial counsel, told him that he “could possibly get [him] 20 years” if he testified against his co-defendant. (Id. at 13.) Petitioner's trial counsel testified that he “didn't think” Petitioner's Georgia conviction should trigger a mandatory life without parole sentence, but that he nonetheless advised Petitioner that “it was obvious that the Solicitor believed that it did and he and I had a difference of opinion.” (Id. at 49.) Petitioner's trial counsel further testified that he “discuss[ed] that life without parole possibility with [Petitioner]” and confirmed that Petitioner was “on notice” that he could get a possible life sentence if he proceeded to trial. (Id. at 57.) Petitioner's trial counsel also testified that Petitioner received a 20-year plea deal, which he rejected. (Id. at 51.)
Following the hearing, the PCR Court denied Petitioner's PCR application. The PCR Court's Order of Dismissal explained, in pertinent part:
While Applicant claims that he was not properly advised concerning life without parole based on his prior conviction in Georgia, Counsel clearly testified at the hearing that Applicant was fully aware that he was facing life without parole if convicted. Specifically, Counsel testified the State served Applicant with a life without parole notice on September 1, 2009. This trial did not occur until November 16-20, 2009. Further, it was Counsel's testimony that Applicant was offered 20 years and rejected that offer. Applicant provided no testimony that he relied on Counsel's advice in rejecting the plea offer from the State. This is simply a case of buyer's remorse. As such, Counsel fulfilled his duty under Strickland and Lafler. Thus, this allegation is denied.(Id. at 81-82.)
In affirming the PCR Court's decision, the South Carolina Court of Appeals opined:
Here, Petitioner testified the State's plea offer “was never negotiated” but would have been conditioned on his future testimony against his co-defendant. As to a plea offer of twenty years, Petitioner stated, “Well he [trial counsel] told me that
he possibly, possibly could.” When asked about any erroneous sentencing advice, Petitioner responded trial counsel never gave him an opinion as to the possibility that the prior Georgia conviction could trigger the LWOP statute because “[w]e never discussed it.” He did, however, admit that he “received a letter that the State was seeking life without parole, but I didn't fully understand it.”
By contrast, when trial counsel was asked whether he and Petitioner discussed the “very issue” of whether Petitioner's prior Georgia false imprisonment conviction “would count as a most serious offense and therefore trigger the life without parole mandatory sentencing,” trial counsel responded succinctly: “We did.” He then explained he advised Petitioner that while he did not believe the prior Georgia conviction should qualify as a predicate “most serious” offense-and he would oppose an LWOP sentence if Petitioner were convicted-he also recognized it was possible the trial court would disagree with his position. Trial counsel stated, “And yes, if I lose on that issue and he's convicted, life without parole, nothing that the Judge can do about it.”[] Trial counsel also informed Petitioner that even if the trial court determined the State's LWOP notice was invalid, it could impose a sentence of fifteen years up to life imprisonment based on the statutory sentencing range for first-degree burglary. See § 16-11-311(B) (“Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, ‘life' means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years.”). To trial counsel, this distinction was “[e]xtremely, important” because without the triggering of the LWOP statute, it was possible Petitioner could receive as little as fifteen years if convicted on the burglary charge.[]
Thus, evidence supports that trial counsel informed Petitioner he could receive a life sentence in one of two ways: through the potential application of the LWOP statute, or if the court imposed the maximum sentence for a burglary conviction. This differs from the situation in Lafler, supra, which went to the Supreme Court “with the concession that counsel's advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment.” Lafler, 566 U.S. at 160. Counsel's testimony as to his analysis of the LWOP exposure supports the PCR court's finding that Petitioner made an informed decision to reject State's twenty-year offer and proceed to trial, hoping for as little as fifteen years, but knowing he faced the possibility of LWOP, or a life sentence for burglary.[] See Smalls, 422 S.C. at 180, 810 S.E.2d at 839 (“We defer to a PCR court's findings of fact and will uphold them if there is evidence in the record to support them.”).
Evidence also supports the PCR court's finding that Petitioner failed to prove he was prejudiced by any failure of trial counsel to properly advise him. Petitioner admitted he received the State's LWOP notice; however, he provided no evidence to the PCR court, such as a self-serving statement, that he would have pled guilty had he been advised the trial court would reject trial counsel's argument and
determine the prior Georgia conviction qualified as a predicate offense. See Bell v. State, 410 S.C. 436, 443, 765 S.E.2d 4, 7 (Ct. App. 2014) (“[I]t is not always necessary for a[n applicant] to offer objective evidence to support a claim of actual prejudice. Instead, depending on the facts of the case, a[n applicant's] self-serving statement may be sufficient to establish actual prejudice.”). Finally, Petitioner's statements denying the plea offer was ever “negotiated” to him- while recognizing the offer would be conditioned upon his cooperation against his co-defendant-cast doubt upon Petitioner's credibility. Although the PCR court made no specific credibility findings, trial counsel's testimony contradicting Petitioner's claim that he and trial counsel “never discussed” the LWOP risk at all further supports the PCR court's determination that trial counsel “properly advised [Petitioner] as to life without parole.” Accordingly, we affirm the PCR court's denial of post-conviction relief.
(Dkt. No. 17-8 at 3-5.)
Based on the foregoing, the South Carolina Court of Appealsaptly considered
Subsection 2254(d)'s standards are to be applied to the decision from the highest state court to decide the claim at issue on the merits. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Petitioner's claims relating to his attorney's purported erroneous advice that he would not be eligible for a life without parole sentence if convicted at trial. (Dkt. No. 1 at 11.) In determining that Petitioner's counsel was not ineffective on this basis, both the PCR Court and Court of Appeals provided an accurate interpretation of the relevant facts in the record and reasonably applied the law to those facts. Both courts referenced Petitioner's testimony at the evidentiary hearing, as well as his trial counsel's. (Dkt. No. 17-5 at 81-82; Dkt. No. 17-8 at 3-5.) Ultimately, the Court of Appeals agreed with the PCR Court that testimony from Petitioner's trial counsel was more persuasive than Petitioner's, and that Petitioner provided no evidence showing that he relied on his trial counsel's advice when deciding to proceed to trial. (Dkt. No. 17-8 at 3-5.) Thus, the Court of Appeals concluded that Petitioner did not meet his burden to show that his trial counsel's performance was deficient, nor that he was prejudiced. See Strickland, 466 U.S. at 687.
Keeping in mind that this Court's review of a state court's adjudication of the merits of an ineffective assistance claim is “doubly deferential,” Knowles, 556 U.S. at 123, the undersigned finds no error in the state court's evaluation of the merits of Petitioner's sole ground for relief. Moreover, Petitioner has submitted no meaningful argument as to how the state court's determination of these issues qualifies as legally or factually unreasonable, and such failure precludes relief in this Court. (See generally Dkt. Nos. 1, 21.) In the absence of any evidence (let alone clear and convincing evidence) lending to a contrary result, this Court must presume the state court's findings are correct. 28 U.S.C. § 2254(e)(1). The undersigned therefore recommends that Petitioner's ineffective assistance of counsel claim lacks merit and should be dismissed.
Certificate of Appealability
If the Respondent's summary judgment motion is granted, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). The undersigned sees no reason to grant a certificate of appealability and would, therefore, recommend denying the certificate of appealability.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that the Court GRANT Respondent's Motion for Summary Judgment (Dkt. No. 18). The undersigned further RECOMMENDS that the Court DISMISS this case with prejudice and DECLINE to issue a certificate of appealability.
IT IS SO RECOMMENDED.
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).