Opinion
Civil Action 6:21-4033-HMH-KFM
08-29-2022
Joseph Skinner, Petitioner, v. Kenneth Nelson, Warden, Respondent.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
The petitioner, a state prisoner proceeding pro se and in forma pauperis, seeks habeas corpus relief pursuant to 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.
BACKGROUND
The petitioner is currently incarcerated at Allendale Correctional Institution in the South Carolina Department of Corrections ("SCDC"). SCDC Incarcerated Inmate Search, https://public.doc.state.sc.us/scdc-public/ (last visited August 24, 2022). He was indicted by the Georgetown County Grand Jury on November 16, 2016, for burglary in the first degree (2016-GS-22-01096) (doc. 17-1 at 126-27). The petitioner was represented by Wyn Bessent ("Ms. Bessent" or "trial counsel") of the Fifteenth Circuit Public Defender's Office, and the State was represented by Richard D. Todd (“Mr. Todd”) of the Fifteenth Circuit Solicitor's Office (id. at 3). On May 24, 2017, the petitioner appeared before the Honorable Larry B. Hyman, Jr., for an arraignment (id. at 6). The petitioner was informed of a plea offer for a sentence of the minimum of 15 years (id. at 8, 98). The petitioner declined to accept the plea offer, but the offer remained in place until June 2017 (id.). At that time, the offer would be withdrawn, and the case was expected to be called for trial in July 2017 (id.).
The petitioner never accepted the plea offer, and on July 17, 2017, the case was called to trial before the Honorable Benjamin H. Culbertson (doc. 17-1 at 3). Prior to the beginning of trial, the petitioner made a motion to have Ms. Bessent be relieved as counsel (id. at 6). The petitioner alleged that Ms. Bessent failed to provide the plea offer in writing and stated he was upset that Ms. Bessent could not get Mr. Todd to reduce the offense to burglary in the second degree (id. at 6-10). The trial court denied the petitioner's motion (id. at 13, 15). As the previous plea offer had been withdrawn, the petitioner decided to plead straight up before the trial court (id. at 16-26). After the petitioner pled guilty, the trial court sentenced the petitioner to 17 years (id. at 26).
Underlying Case Facts
According to the State, the petitioner broke into the victims' pool room adjacent to their main residence around 2:00 a.m. on September 3, 2016 (doc. 17-1 at 21, 24). When the petitioner broke into the pool room, it triggered the residence's alarm (id. at 21). However, the victims thought that a dog triggered the alarm and turned the alarm off (id.). After the petitioner broke in, he drank beer and moved a tribal African spear and a bicycle to the door so that he could take them later (id. at 21-22, 24). The victims then heard loud music (id. at 21). One of the victims grabbed a gun and went to investigate (id. at 21-22, 24). Once the victim entered the pool room, he found the petitioner (id. at 21). The victim held the petitioner at gunpoint until authorities arrived (id.). Due to the petitioner's two prior convictions for burglary and the fact that this break in occurred during the nighttime hours, the petitioner was charged with burglary in the first degree (id. at 2123).
Direct Appeal
The petitioner did not directly appeal his guilty plea conviction or sentence (doc. 17 at 2).
PCR
The petitioner filed a pro se post-conviction relief ("PCR") application on December 11, 2017, alleging the following grounds for relief:
1. Involuntary guilty plea
a. Was threatened] with life sentence if [I] did not plead guilty
2. Court lacked subject matter jurisdiction to accept guilty plea
a. No party can waive presentment to the grand jury
3. Ineffective assistance of trial counsel
a. Plea was not knowing and voluntary because I lacked knowledge of material evidence(Doc. 17-1 at 29-35). The State filed its return and a partial motion to dismiss on February 12, 2018 (id. at 36-43).
An evidentiary hearing was held on November 12, 2019, before the Honorable George M. McFaddin (doc. 17-1 at 44). The petitioner was present at the hearing and was represented by Steven Fowler ("Mr. Fowler" or "PCR counsel") (id.). The State was represented by Johnny Ellis James of the South Carolina Attorney General's Office (id.). The petitioner testified on his own behalf, as did Ms. Bessent (id. at 53-106). By written order filed on January 28, 2020, the PCR court denied and dismissed the petitioner's PCR application with prejudice, finding that the petitioner failed to establish any violations that would require the court to grant his application (id. at 109-125).
PCR Appeal
The petitioner, represented by Mr. Fowler, appealed the PCR court's decision and filed a Johnson petition for writ of certiorari before the Supreme Court of South Carolina on December 4, 2020, presenting the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988).
Trial counsel erred in failing to meet and consult sufficiently with petitioner before his plea proceeding commenced.(Doc. 17-3 at 3). On the same day, the Supreme Court of South Carolina delivered a letter to the petitioner explaining the Johnson petition and allowing the petitioner 45 days to respond (doc. 17-4 at 1-2). However, the petitioner never filed a response (doc. 17-5 at 1). The Supreme Court ordered that this matter be transferred to the Court of Appeals of South Carolina, and on September 9, 2021, the Court of Appeals issued an order denying the writ of certiorari (id.). The Court of Appeals sent the remittitur to the Georgetown County Clerk of Court's Office on September 28, 2021 (doc. 17-6 at 1).
Federal Petition
On December 13, 2021, the petitioner filed the instant § 2254 petition, raising the following grounds for relief:
GROUND ONE: Ineffective assistance of counsel
SUPPORTING FACTS: Applicant alleges his plea was rendered involuntary by ineffective assistance of counsel. (1) that counsel failed to render reasonably effective assistance under prevailing professional norms and (2) that he was prejudiced by his counsel's ineffective performance
GROUND TWO: Involuntary guilty plea
SUPPORTING FACTS: Applicant claims his plea was not entered knowingly or voluntarily made, Applicant who enters a plea on the advice of counsel may only attack the voluntary and intelligent character
GROUND THREE: Subject matter jurisdiction
SUPPORTING FACTS: Applicant argues that an aggravating circumstance is a required element of first degree burglary, and the language in the indictment does not indicate[] any aggravating circumstance with the first degree burglary charged.
GROUND FOUR: Failure to communicate written plea offer
SUPPORTING FACTS: Counsel failed to timely communicate the state's plea offer to defendant(Doc. 1 at 5-10). The petitioner also attached a document to his petition submitting additional grounds and arguments (doc. 1-2). On April 18, 2021, the respondent filed a motion for summary judgment (doc. 18) and return and memorandum (doc. 17). On the same date, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately (doc. 19). The petitioner filed a response on June 17, 2022 (doc. 24). On June 24, 2022, the respondent filed a reply (doc. 26). Additionally, on July 19, 2022, the undersigned issued an order directing the respondent to submit briefing on the issue of procedural default and the petitioner to file a response (doc. 27). The respondent filed his brief on July 28, 2022 (doc. 29), but the petitioner did not file a response. This matter is now ripe for review.
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
Federal Rule of Civil Procedure 56 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). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the 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. In 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 district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (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 his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff'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 the granting of 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.
Exhaustion and Timeliness
The respondent acknowledges that the petitioner has technically exhausted his state court remedies and that the petition is timely (doc. 17 at 8-10).
Federal Habeas Review
Because 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 (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, 410 (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, 101-102 (2011) (citations omitted). 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 Default
Procedural default is the doctrine applied when a petitioner seeks habeas corpus relief on an issue after he 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. 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 has 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 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).
"[A] federal court ordinarily may not consider claims that a petitioner failed to raise at the time and in the manner required under state law unless 'the prisoner demonstrates cause for the default and prejudice from the asserted error.'" Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012) (quoting House v. Bell, 547 U.S. 518, 536 (2006)). To show cause, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule," Murray v. Carrier, 477 U.S. 478, 488 (1986), or that "the factual or legal basis for the claim was not reasonably available to the claimant at the time of the state proceeding." Roach v. Angelone, 176 F.3d 210, 222 (4th Cir. 1999). "Alternatively, Petitioner may prove that failure to consider the claims will result in a fundamental miscarriage of justice." McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). A fundamental miscarriage of justice equates to the conviction of someone who is actually innocent. However, "actual innocence" requires "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
In Martinez v. Ryan, 566 U.S. 1, 9 (2012), the Supreme Court carved out a "narrow exception" that modified the "unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." In Martinez, the Court
read Coleman as containing an exception, allowing a federal habeas court to find "cause," thereby excusing a defendant's procedural default, where (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review
proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding."Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 14-18). The Court in Martinez also noted:
When faced with the question whether there is cause for an apparent default, a State may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards.566 U.S. at 15-16.
Although the respondent did not argue in his motion for summary judgment that many of the petitioner's claims were procedurally defaulted, courts retain discretion "to decide a petitioner's claim on the basis of procedural default despite the failure of the state to properly preserve the procedural default." Yeatts v. Angelone, 166 F.3d 255, 261-62 (4th Cir.1999). This exercise of discretion must be informed by "balancing the federal interests in comity and judicial economy against the petitioner's substantial interest in justice." Id. at 262 (citation and internal quotation marks omitted). Additionally, courts should consider whether a respondent's failure to raise the defense was intentional or inadvertent and "whether justice requires that the habeas petitioner be afforded with notice and a reasonable opportunity to present briefing and argument opposing dismissal." Id.; see also Trest v. Cain, 522 U.S. 87, 92 (1997) (observing that, where the parties have failed to brief the procedural default question, the "somewhat longer (and often fairer) way" is to "ask for further briefing").
With these considerations in mind, the undersigned finds it appropriate to exercise such discretion here. The petitioner has had notice and a reasonable opportunity to present briefing and argument opposing dismissal based on procedural default grounds. As set out above, the undersigned filed an order on July 19, 2022, directing the respondent to submit briefing on the issue of procedural default by August 2, 2022, and the petitioner to respond by August 16, 2022 (doc. 27). The respondent filed a brief on July 28, 2022, arguing that the petitioner's claims were procedurally defaulted (doc. 29). However, the petitioner never filed a response. Further, nothing in the record reflects that the respondent intentionally waived this defense, and the interest of judicial efficiency will be furthered by its application. Therefore, the undersigned will address procedural default herein.
While the petitioner raised various grounds in his PCR application, he only argued that his trial counsel provided ineffective assistance by failing to sufficiently meet and consult with him prior to his plea proceeding in the Johnson petition in his PCR appeal (doc. 17-3 at 3). Moreover, despite being given the opportunity by the Supreme Court, the petitioner never filed a response with any additional claims that he wished to raise. Therefore, except for his sole claim raised in the Johnson petition, the petitioner's claims are procedurally defaulted. See, e.g., Mahdi v. Stirling, 20 F.4th 846, 893 (4th Cir. 2021) ("[A] claim is procedurally barred if the petitioner fail[s] to raise [it] in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision.") (citation and internal quotation marks omitted); Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (finding that a petitioner's claim in his habeas petition was procedurally defaulted when he raised the claim in PCR but did not present it in his petition for certiorari filed with the South Carolina Supreme Court); Whitley v. Bair, 802 F.2d 1487, 1500 (4th Cir. 1986) ("[F]ailure to appeal claims disposed of by state habeas trial court constitutes a procedural bar to further federal review of such claims."); Robinson v. Warden, Ridgeland Corr. Inst., C/A No. 4:15-cv-3703- HMH-TER, 2016 WL 3381284, at *4 (D.S.C. May 5, 2016) (finding that a petitioner's claims, which he raised before the PCR court but did not raise in his PCR appeal, were procedurally defaulted), R&R adopted by 2016 WL 3227183 (D.S.C. June 13, 2016).
The cases set forth above, in which the Fourth Circuit has found that a petitioner's claim is procedurally barred if he did not raise the claim in his PCR appeal, did not involve Johnson petitions. Some courts within the District of South Carolina have found that these holdings do not extend to PCR appeals involving Johnson petitions and that every issue raised by the petitioner and ruled upon by the PCR court is preserved for federal habeas review, regardless of which issues are actually raised on appeal, since South Carolina appellate courts review Johnson petitions pursuant to the procedures set forth in Anders v. California, 386 U.S. 738 (1967), and therefore review the entire record. See, e.g., Cave v. Warden, Lieber Corr. Inst., C/A No. 0:18-3573-CMC-PJG, 2019 WL 6330811, at *4 (D.S.C. Oct. 29, 2019), R&R adopted by 2019 WL 6318727 (D.S.C. Nov. 26, 2019); Pierce v. Reynolds, C/A No. 2:15-cv-01803-SB-MGB, 2016 WL 11407782, at *9 (D.S.C. Jan. 28, 2016), R&R adopted by 2016 WL 1271001 (D.S.C. Mar. 29, 2016). Nevertheless, many courts in the District of South Carolina have applied these Fourth Circuit holdings in the Johnson petition context, finding that a petitioner's claims are procedurally barred when the petitioner raised them before the PCR court but did not raise the claims on PCR appeal in either his Johnson petition or his pro se response. See, e.g., Cox v. Stonebreaker, C/A No. 5:19-cv-01725-RBH-KDW, 2020 WL 2332781, at *3, *8 (D.S.C. April 9, 2020), R&R adopted by 2020 WL 2322614 (D.S.C. May 11,2020); Portee v. Stevenson, C/A No. 8:15-cv-00487-PMD-JDA, 2015 WL 13734631, at *18 (D.S.C. Dec. 29, 2015), aff'd by 671 Fed.Appx. 100 (4th Cir. 2016); Colwell v. Warden, C/A No. 9:08-1828-HMH-PJG, 2009 WL 1743899, at *4 (D.S.C. June 18, 2009). In the absence of precedent to the contrary, the undersigned finds persuasive the latter-described district court cases. The undersigned finds that the distinction of a Johnson petition does not warrant departure from the Fourth Circuit's unequivocal holding that a claim is procedurally defaulted when it is not raised in the PCR appeal and that an extension of the law indicating that South Carolina appellate courts must review the entire trial record is not a means to circumvent procedural default and obtain federal habeas review.
Moreover, the petitioner has failed to articulate any cause and prejudice or a fundamental miscarriage of justice to excuse such default. Though not argued by the petitioner, it is worth noting that he may not rely on the Martinez exception to Coleman to excuse his default based on his PCR appellate counsel's ineffective assistance for failing to raise these grounds, as "ineffective assistance of appellate postconviction counsel . . . do[es] not constitute cause for [a petitioner's] failure to exhaust under the limited exception in Martinez." Mahdi, 20 F.4th at 898 (citation and internal quotation marks omitted). Therefore, the undersigned recommends that the district court find that all of the petitioner's claims, except for his claim that his trial counsel failed to sufficiently meet with him prior to his plea proceeding, are procedurally barred.
Because the undersigned finds that these claims are procedurally barred, the parties' arguments on the claims' merits will not be addressed.
Ineffective Assistance of Trial Counsel
Regarding the petitioner's remaining ineffective assistance of counsel claim, the petitioner alleges that "trial counsel never had contact with him before the plea," his "legal contact" with his trial counsel was "minimal to 'no' contact for six to ten months," and "he had no clue as to what was going on in his case" (doc. 1-2 at 5). Further, the petitioner asserts that his trial counsel could not have adequately prepared for his case or developed defenses on his behalf with such few meetings (id.). The petitioner also alleges that his trial counsel "was not any help"; "[i]t took [trial counsel] six months to come and see [him] for the initial visit"; and trial counsel did not answer any of his letters and would not talk to him on the phone (id. at 20, 24).
To be entitled to relief on an ineffective assistance claim, a petitioner must show that (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's error, the result of that proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-94 (1984). Strickland does not guarantee perfect representation, only a “‘reasonably competent attorney.'” Id. at 687 (quoting McMann v. Richardson, 397 U.S. 759, 770 (1970)). There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case. Id. at 690. The review of ineffective assistance of counsel claims in federal habeas is not simply a new review of the merits; rather, habeas review is centered upon whether the State court decision was reasonable. See 28 U.S.C. § 2254(d). Additionally, each step in the review process requires deference-deference to counsel and deference to the State court that previously reviewed counsel's actions:
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential,” and when the two apply in tandem, review is “doubly” so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal citations omitted).
At the evidentiary hearing before the PCR court, the petitioner testified that his trial counsel did not get in contact with him until six months after his arrest, and she did not tell him "what [he] was facing" (doc. 17-1 at 56). Additionally, the petitioner testified that he wrote a letter to "the solicitor's office trying to find out what's going on with my case, since I couldn't get [trial counsel] on the telephone. I couldn't find out nothing" (id. at 60). The petitioner further testified that he had "very seldom seen" his trial counsel, he "spoke to her two times in ten months," he wrote letters to her but "got no response," "[t]he only time that I got to talk to her on the telephone, the first time, was after the plea hearing," he had "no - minimal contact" with her, and he "had no clue what was going on with [his] case for . . . almost ten months" (id. at 70-71, 76).
Ms. Bessent also testified that the evidentiary hearing, stating that she was a public defender assigned to represent the petitioner (doc. 17-1 at 90). Ms. Bessent testified that she met with the petitioner "[p]robably half a dozen" times (id. at 91). Moreover, she testified that the public defender's office kept a log of her visits with the petitioner and that she went to the jail to meet with him in 2017 on February 1st, May 23rd, June 13th, June 14th, July 13th, and July 14th (id. at 100-01). She also had two telephone calls with him on May 30th (id. at 100).
Regarding this issue, the PCR court found as follows:
At the evidentiary hearing, Applicant testified he only met Counsel once over the course of six months. Counsel told Applicant the sentences he could face. Applicant testified that Counsel was honest with him. Applicant recalled that he wrote the prosecutor on one occasion in an attempt to figure out what kind of time he was facing. . . .
Counsel testified she met with Applicant at least a half-dozen times. Counsel recalled receiving discovery from the State the December prior to the plea, and that she reviewed those materials with Applicant. Counsel advised Applicant that burglary, first degree carried a potential sentence of up to life imprisonment. On cross-examination, Counsel listed the dates and details as to each time she met or otherwise spoke with Applicant. Counsel explained that Applicant always asked many questions.
The Court finds Counsel was not ineffective. The Court does not find credible Applicant's testimony that he only met with counsel once. To the contrary, Counsel met with Application on numerous occasions, and in the course of those meetings Counsel gave Applicant accurate legal advice that if convicted, Applicant faced a potential sentence of up to life in prison for burglary in the first degree. . . .(Doc. 17-1 at 118-19).
The undersigned finds that the PCR court's dismissal of the petitioner's ineffective assistance of counsel claim based on trial counsel's alleged failure to sufficiently meet with him was not based on objectively unreasonable factual determinations and did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. As set out above, the PCR court found trial counsel's testimony credible and the petitioner's testimony not credible. "Credibility determinations, such as those the state PCR court made . . ., are factual determinations." Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003). Factual determinations by PCR courts are "presumed to be correct," and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Horner v. Nines, 995 F.3d 185, 198 (4th Cir. 2021) ("We must be especially deferential to the state PCR court's findings on witness credibility, and we will not overturn the court's credibility judgments unless its error is stark and clear") (citation and internal quotation marks omitted). Moreover, "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (internal citations omitted). "Indeed, 'federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them." Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).
Here, the petitioner has failed to rebut by clear and convincing evidence any of the facts relied upon by the PCR court in determining that his testimony was not credible. As set out above, trial counsel testified in detail as to her six meetings with the petitioner and additional phone calls, which were apparently documented in a log from the public defender's office. Aside from his bald reassertion that trial counsel did not meet with him enough, the petitioner has failed to provide any support for his position. As a result, the undersigned concludes that the PCR court's findings were not based on objectively unreasonable factual determinations. Furthermore, the undersigned also finds that the PCR court's dismissal of the petitioner's ineffective assistance of counsel claim pursuant to Strickland was not a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. Therefore, the undersigned recommends that the district court grant the respondent's motion for summary judgment as to the petitioner's ineffective assistance of counsel claim regarding his trial counsel's alleged failure to sufficiently meet with him prior to his plea proceeding.
CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the court recommends that the respondent's motion for summary judgment (doc. 18) be granted.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the next page.
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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).