Opinion
C/A No. 0:18-1442-RMG-PJG
02-08-2019
David I. Smith, Petitioner, v. Warden, Lee Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Petitioner David I. Smith, a self-represented state prisoner, filed a 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 Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. (ECF No. 22.) 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. (ECF No. 24.) Petitioner filed a response in opposition (ECF No. 26), and Respondent replied (ECF No. 27). Having carefully considered the parties' submissions and the record in this case, the court finds that Respondent's motion should be granted and the Petition denied.
Petitioner also filed a sur-reply. (ECF No. 32.) The Local Civil Rules make no provision for sur-replies. However, consideration of Petitioner's sur-reply would not change the court's recommendation on the Respondent's motion.
BACKGROUND
Petitioner was indicted in May 2012 in Charleston County for attempted murder (2012-GS-10-2533). (App. at 15-16, ECF No. 21-1 at 17-18.) Petitioner was represented by Luke Malloy, Deputy Public Defender. (App. at 1, ECF No. 21-1 at 3.) On July 10, 2014, Petitioner pled guilty to assault and battery of a high and aggravated nature ("ABHAN") before the Honorable Roger M. Young, Sr., Circuit Court Judge. (App. at 1-12, ECF No. 21-1 at 3-14.) The court sentenced Petitioner to twenty years' incarceration with credit for time served. (App. at 12, ECF No. 21-1 at 14.)
On July 18, 2014, plea counsel filed a motion to reconsider Petitioner's sentence. (App. at 18, ECF No. 21-1 at 20.) On November 17, 2014, the court held a hearing on the motion to reconsider, but reaffirmed the original sentence of twenty years. (App. at 19-28, ECF No. 21-1 at 21-30.) Petitioner did not appeal.
On March 31, 2015, Petitioner filed a pro se application for post-conviction relief ("PCR"). (Smith v. State, 2015-CP-10-1855, App. at 33-39, ECF No. 21-1 at 35-40.) In his PCR application, Petitioner alleged the following issues:
10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) Misadvice in guilty plea, not indicted within timely manner
(b) Ineffective assistance of counsel
(c) Forgery of indictment
11. State concisely and in the same order the facts which support each of the grounds set out in (10):
(App. at 36, ECF No. 21-1 at 38.) The State filed a return. (App. at 41-45, ECF No. 21-1 at 43-47.) On August 1, 2016, the PCR court held an evidentiary hearing at which Petitioner appeared and testified. (App. at 47-75, ECF No. 21-1 at 49-77.) Petitioner was represented by Christopher L. Murphy, Esquire. (App. at 47, ECF No. 21-1 at 49.) At the conclusion of the hearing, the PCR court asked PCR counsel to clarify what grounds were being raised by his client, and PCR counsel responded as follows:(a) Counsel was not prepared for this case
(b) Counsel misadvised me to accept a plea offer
(c) Counsel was not on case long enough to prepare a defense
It's two-fold. Number one, he's saying that he was coerced into doing the plea; that had he known the ramifications and the possible sentence, he would have not have gone forward with the plea. His testimony is he wanted a trial the whole time and he was coerced or convinced into pleading guilty, Your Honor.(App. at 73, ECF No. 21-1 at 75.) The PCR court took the matter under advisement. (App. at 74, ECF No. 21-1 at 76.) In an order filed August 4, 2016, the PCR court denied and dismissed with prejudice the PCR application. (App. 76-80, ECF No. 21-1 at 78-82.)
Second point would be that he would—he wanted to file an appeal. And we would ask for, if he's denied on his PCR application, that he will be able to file a belated appeal on the matter.
Petitioner appealed. On September 15, 2017, Kathrine H. Hudgins, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a Johnson petition for writ of certiorari on Petitioner's behalf. (Smith v. State, App. Case No. 2016-001823, ECF No. 21-2.) The following issue was presented in the Johnson petition:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors in Anders v. California, 386 U.S. 738 (1967), to post-conviction appeals). Anders 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. Anders, 386 U.S. at 744.
Did the PCR judge err in finding that Petitioner was not entitled to a belated direct appeal, pursuant to White v. State, from his plea of guilty to assault and battery of a high and aggravated nature when Petitioner received the maximum sentence and filed a motion to reconsider sentence which was denied?(ECF No. 21-2 at 3.) Thereafter, Petitioner filed a pro se response to the Johnson petition raising the following issues:
1. Was Plea Counsel ineffective assistance for strongly suggesting that the Defendant plea to the charge of Assault and Battery of a high and aggravated nature, instead of challenging the indictment of Attempted Murder in regard to the necessary elements of Malice Aforethought and Specific Intent to Kill?(ECF No. 21-3 at 4.) On April 23, 2018, the Supreme Court of South Carolina denied the petition and granted PCR appellate counsel's request to withdraw. (ECF No. 21-4.) The remittitur was issued on May 9, 2018, and was filed in the Charleston County Court on May 11, 2018. (ECF No. 21-5 at 1-2.)
2. Did the Plea Judge abuse his discretion in sentencing the Defendant to the maximum twenty year sentence following a guilty plea to the lesser included offense of Assault and Battery of a high and aggravated nature, where the victims injuries were classified not serious and non life threatening which would have required a sentence if any at all to be pursuant to SECTION 16-3-600. Subsection (C)(1) not to exceed ten years?
3. Was Plea Counsel ineffective assistance for failing to inform Defendant of his right to a direct appeal from a guilty plea pursuant to Weathers v. State, 319 S.C. 59, 459 S.E.2d 838 (1995) after receiving the maximum twenty year sentence?
4. Did the PCR Judge err in finding that Petitioner was not entitled to a belated direct appeal, pursuant to White v. State, from his guilty plea to Assault and Battery of a high and aggravated nature when Petitioner received the maximum twenty year sentence, and Petitioner motion to reconsider sentence was denied?
FEDERAL HABEAS ISSUES
The Petition for a writ of habeas corpus raises the following issues, quoted verbatim:
Ground One: Coersion/Duress
Supporting Facts: Petitioner had three lawyers that knew Petitioner planned & prepared to go to trial approximately three years in county jail. Malloy admits the acknowledgment of Petitioners desire for trial multiple times, minutes before an unwanted plea hearing, which counsel forced. By bringing in a second attorney Penington. To validate counsel Malloy's erroneous advise of 40 years (10 CDV and 30 Att. Murder) and threats
of a sure conviction. Counsel Malloy compelled Petition into an involuntary plea.(Pet., ECF No. 1 at 5, 6, 8, 9, 11) (errors in original and internal citations omitted).
Ground Two: Counsel was ineffective due to his failure to appeal max sentencing, after a plea bargain.
Supporting Facts: Counsel Malloy knew that Att. Murder would not been a foregone conclusion, so because of his belief he strongly advised Petition to plea to ABHAN. However the genuine issue that the Medical Report raises in regard to the nature of the assault/domestic charge contradicts. Malloy's clearly knew that the injuries were most consistent with subsection 16-3-300 1(c) of assault & battery, thus appeal.
Ground Three: Brady Violation
Supporting Facts: Counsel admits that he did have "letters" (Petitioner wrote) in files. These letters, DNA swab test results, and pictures of scene were not given to Petitioner. No phone calls were subpena nor was letters challenged at plea hearing. The allagations of threats implicated Petitioner's chraracter as a threat, thus wieghed in judges discretion. Had Petitioner have above mentioned, Petitioner would've utilized them as an option to trial vs plead involuntarly.
Ground Four: Counsel refuse to fight/challenge and refuse to remove himself when Petitioner communicated.
Supporting Facts: Petitioner told Malloy that he wanted new counsel and requested that he be allowed to communicate with his family, before entering into plea. Counsel denied Petitioner, saying that he did not see them. Counsel was uncommunicative, did not spend adequate time on case, had prepared no trial strategy and refused to remove himself. Petitioner had not needed to change counsel till Malloy, 2 months before plea.
In his response to Respondent's motion for summary judgment, Petitioner included a new ground for relief—that plea counsel was ineffective for his "[f]ailure to object to testimony of state's witness (Ms. S. Brown) whose testimony was bias and presented a conflict of interest to Mr. Smith due to a prior incident." (Petr.'s Resp. Opp'n Summ. J., ECF No. 26 at 5.) This newly raised claim is not properly before the court. See, e.g., Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir. 2007) (holding that a party may not expand its claims to assert new theories in response to summary judgment); White v. Roche Biomedical Labs., Inc., 807 F. Supp. 1212, 1216 (D.S.C. 1992) (noting that "a party is generally not permitted to raise a new claim in response to a motion for summary judgment").
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 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). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Habeas Corpus Standard of Review
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas corpus relief unless the decision was "contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States," or the decision "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)(1), (2). When reviewing a state court's application of federal law, "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); see also White v. Woodall, 572 U.S. 415, 419 (2014) (describing an "unreasonable application" as "objectively unreasonable, not merely wrong" and that "even clear error will not suffice") (internal quotation marks and citation omitted); Harrington v. Richter, 562 U.S. 86, 100 (2011); Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005); McHone v. Polk, 392 F.3d 691 (4th Cir. 2004). 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).
"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 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White, 572 U.S. at 419-20 (stating that " '[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' ") (alteration in original) (quoting Harrington, 562 U.S. at 103). Under the AEDPA, a state court's decision "must be granted a deference and latitude that are not in operation" when the case is being considered on direct review. Harrington, 562 U.S. at 101. Moreover, review of a state court decision under the AEDPA standard does not require an opinion from the state court explaining its reasoning. See id. at 98 (finding that "[t]here is no text in [§ 2254] requiring a statement of reasons" by the state court). If no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. Id. Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories supported or could have supported the state court's decision; and then (2) ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of the United States Supreme Court. Id. at 102. "If this standard is difficult to meet, that is because it was meant to be." Id. Section 2254(d) codifies the view that habeas corpus is a " 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
C. Exhaustion Requirements
A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that "when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies."). To exhaust his available state court remedies, a petitioner must "fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim." Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider only those issues which have been properly presented to the state appellate courts with jurisdiction to decide them. Generally, a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth, 377 F.3d 437; see also Coleman v. Thompson, 501 U.S. 722 (1991). For a procedurally defaulted claim to be properly considered by a federal habeas court, the petitioner must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
D. Standard for Ineffective Assistance of Plea Counsel
A defendant has a constitutional right to the effective assistance of counsel. To demonstrate ineffective assistance of counsel, a petitioner must show, pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), that (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating that "the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims"). To satisfy the first prong of Strickland, a petitioner must show that plea counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution. With regard to the second prong of Strickland, a petitioner "must show that there 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. However, to prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, the Strickland test is "some what different." Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000). To establish the prejudice prong of the Strickland test, a habeas petitioner who pled guilty must show " 'that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)) (discussing the Strickland v. Washington standard to establish ineffectiveness of counsel in the context of a guilty plea).
The United States Supreme Court has cautioned federal habeas courts to "guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)." Harrington, 562 U.S. at 105. The Court observed that while " '[s]urmounting Strickland's high bar is never an easy task[,]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The Court instructed that the standards created under Strickland and § 2254(d) are both " 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, "[t]he 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." Id.
E. Respondent's Motion for Summary Judgment
1. Grounds That Are Procedurally Barred
Respondent asserts that Petitioner's Grounds Three and Four are procedurally barred as neither was properly raised to or ruled upon by the PCR court. (Respt.'s Mem. Supp. Summ. J., ECF No. 21 at 13-14.) Accordingly, Respondent asks that those grounds be dismissed.
In Ground Three, Petitioner alleges a Brady violation, claiming that letters he wrote to the victim, DNA swab test results, and pictures of the crime scene were not provided to him. (Pet., ECF No. 1 at 9.) Petitioner admits that he did not raise this issue through his PCR action. (Id. at 10.) He asserts, "I tried to bring up some of these issue at PCR but was cut off. . . . [T]he letters were consulted as basically trash." (Id. at 11.) As to Ground Four, in which Petitioner raises a number of claims of ineffective assistance of plea counsel, including that plea counsel would not let Petitioner speak with his family before the plea and that plea counsel was "uncommunicative, did not spend adequate time on case, had prepared no trial strategy and refused to remove himself," Petitioner asserts that he did raise that issue in his PCR action. (Id.) However, he states that he did not raise this issue in his appeal, explaining that "riots did not allow me time to get to law library. I got charged for not going in demanding the law library and needed material. In short I turnt in a unfinnish writ of certiorari." (Id. at 12) (errors in original).
Reviewing the state court record, it appears that Petitioner never asserted a Brady violation to the PCR court, and while he raised some of the same issues that are now part of his Ground Four, those issues were not all considered by the PCR court based on the evidence submitted during the PCR proceedings. (See App. at 76-79, ECF No. 21-1 at 78-81.) The only two claims considered by the PCR court were those articulated by PCR counsel at the conclusion of the evidentiary hearing—"First, his plea was coerced due to his not being aware of the consequences. Second, Applicant wanted counsel to file an appeal." (App. at 78, ECF No. 21-1 at 80.) As part of the first claim, the PCR court considered Petitioner's testimony that he wanted to talk to his family before he decided to plead guilty, and the PCR court denied relief on this claim. (App. at 79, ECF No. 21-1 at 81.) Thus, to the extent that Ground Four can be read to include a claim that Petitioner's plea was coerced based on the fact that he was not permitted to speak with his family before he pled guilty, that claim is arguably preserved. All remaining claims were neither raised to nor ruled on by the PCR court, and thus, they are procedurally barred here. See Coleman, 501 U.S. 722 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review); Picard v. Connor, 404 U.S. 270, 275-76 (1971) (stating that to exhaust state remedies, a petitioner's "federal claim must be fairly presented to the state courts" to give the state courts "the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding"). Moreover, these grounds would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules if Petitioner attempted to raise them now. See Lawrence, 517 F.3d at 714; Longworth, 377 F.3d 437; see also Coleman, 501 U.S. 722.
While the court finds that Ground Three and most of Ground Four are procedurally defaulted, or barred from federal habeas review, such claims may nonetheless be considered by a federal court if the petitioner can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
a. Cause and Prejudice as to Ground Three
As to Ground Three, Petitioner asserts that he tried to bring up these issues but was "cut off[,]" and he cites part of the record where PCR counsel questioned him about plea counsel's representation:
Q. And what evidence did you want him to present in furtherance of this strategy?
A. I wanted him to get medical records. If he chose—if he challenged it, medical records would have shown the severity of Ms. Grayson's wounds. The expert witness would have attested to what was reported in the—
Q. Let's back up. This was a stabbing case, correct?
A. Right.
. . . .
Q. Okay. And why is that—did you tell Mr. Malloy you were injured?
A. Right. And, plus, I had took a swab test.(App. at 51, ECF No. 21-1 at 53.) Thus, Petitioner appears to blame his failure to raise these claims on PCR counsel.
Q. Okay. Let's back up a bit. I know you've got a lot to say, but, please, listen to me. All right. Were you cut in this instance?
A. I was cut.
Generally, any errors of PCR counsel cannot serve as a basis for cause to excuse a petitioner's procedural bar of his claims. See Coleman, 501 U.S. at 752. However, in Martinez v. Ryan, 566 U.S. 1 (2012), the United States Supreme Court established a "limited qualification" to the rule in Coleman. 566 U.S. at 15. The Martinez Court held that ineffective assistance of counsel "at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. at 9. In describing its holding in Martinez, the Supreme Court has stated:
We . . . 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) (citing Martinez, 566 U.S. at 14, 16, 132 S. Ct. at 1318-19, 1320-21); see also Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (summarizing the Martinez test to require the following: "a reviewing court must determine whether the petitioner's attorney in the first collateral proceeding was ineffective . . . , whether the petitioner's claim of ineffective assistance of trial counsel is substantial, and whether there is prejudice").
Further, to excuse the procedural bar of Petitioner's claims, he must "show that [PCR] counsel's representation during the post-conviction proceeding was objectively unreasonable, and that, but for his errors, there is a reasonable probability that Petitioner would have received relief on a claim of ineffective assistance of trial counsel in the state post-conviction matter." Sexton, 679 F.3d at 1157; see also Williams v. Taylor, 529 U.S. at 391 (stating that "the Strickland test provides sufficient guidance for resolving virtually all ineffective assistance-of-counsel claims"); Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating to demonstrate ineffective assistance of counsel, a petitioner must show that (1) his counsel was deficient in his representation, i.e., that counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution and (2) he was prejudiced as a result).
Petitioner has not met the requirements of Martinez. Initially, if Petitioner's underlying claim alleges a true Brady violation—that is, a failure by the prosecution to disclose exculpatory or impeachment evidence—then Martinez does not apply because the underlying claim does not concern trial counsel's performance. On the other hand, to the extent that Petitioner is attempting to argue in Ground Three that plea counsel withheld the evidence from Petitioner, then Martinez would apply if Petitioner were able to show both ineffective assistance by PCR counsel and a substantial claim of ineffective assistance by plea counsel. However, Petitioner has failed to articulate how either PCR counsel or plea counsel provided constitutionally deficient representation. In Strickland, the Supreme Court instructed that "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." 466 U.S. at 690. The vague assertions levied by Petitioner do not overcome that presumption. Furthermore, the PCR evidentiary hearing record does not establish that PCR counsel was constitutionally deficient. Petitioner claims that he was "cut off," but it appears that PCR counsel was trying to keep Petitioner's testimony directed to the claim that his guilty plea was coerced. Thus, the record does not establish deficient performance by PCR counsel. As to the underlying claim of ineffective assistance of plea counsel, Petitioner has also not met his burden where he has not identified the substance of the evidence that was allegedly withheld from him or how having such evidence would have led to a reasonable probability that he would not have pled guilty but would have insisted on going to trial. See Martinez, 566 U.S. at 14 ("To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit."); Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) ("[Petitioner] cannot meet his burden to show that counsel made errors so serious that his representation fell below an objective standard of reasonableness based on vague and conclusory allegations that some unspecified and speculative testimony might have established his defense.").
See Strickler v. Greene, 527 U.S. 263, 281-82 (1999) ("There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.").
b. Cause and Prejudice as to Ground Four
As to Ground Four, Petitioner claims that he was unable to access the law library due to riots in prison. Thus, he submitted an incomplete petition for writ of certiorari. (Pet., ECF No. 1 at 12.) However, as explained above, to the extent that claims in Petitioner's Ground Four are procedurally defaulted, such default is not due to his failure to raise those claims in his petition for writ of certiorari. Rather, the default is due to such claims never having been raised to and ruled upon by the PCR court. As such, the procedural default of Ground Four cannot be excused for the reasons Petitioner now provides.
2. Grounds That Are Preserved
The remaining grounds were properly raised to and ruled upon by the PCR court. They were then available for appellate review in Petitioner's Johnson appeal.
a. Ground One
In Ground One, Petitioner asserts that his guilty plea was the product of coercion and duress. He claims that he had planned and prepared to go to trial for approximately three years while waiting in county jail, but he was ultimately forced to plead guilty by plea counsel's erroneous advice and threats of conviction. (Pet., ECF No. 1 at 5-6.) The PCR court considered and rejected this claim on the merits. Respondent argues that the PCR court's decision was reasonable in both law and fact. The court agrees.
Petitioner pled guilty to ABHAN, which carried a potential sentence of twenty years' incarceration. (App. 2, ECF No. 21-1 at 4.) He affirmed to the plea court that he understood his constitutional rights and that he was pleading guilty because he was guilty. (App. 2-3, ECF No. 21-1 at 4-5.) During the plea colloquy, Petitioner indicated that he did not need any additional time with plea counsel, that he was satisfied with counsel's representation, and that counsel had done everything that Petitioner asked him to do. (App. 3, ECF No. 21-1 at 5.) The plea court found that Petitioner's plea was freely, voluntarily, and intelligently made. (App. 5, ECF No. 21-1 at 7.)
At his PCR evidentiary hearing, Petitioner testified that he had not wanted to plead guilty, but plea counsel told him that he "would receive 40 years, 30 with attempted murder and 10 for the CDV/HAN." (App. 53, ECF No. 21-1 at 55.) Petitioner also testified that plea counsel got input from the Chief Public Defender, Ashley Pennington. (App. 53-54, ECF No. 21-1 at 55-56.) Plea counsel then told Petitioner that Pennington believed the judge would give him ten years rather than twenty. (App. 54, ECF No. 21-1 at 56.) On cross-examination, Petitioner testified that plea counsel told him to go along with what the judge said during the plea colloquy, and he would get ten years. (App. 58, ECF No. 21-1 at 60.)
Plea counsel testified that he never threatened Petitioner with a potential forty-year sentence, stating, "I'm sure that I was clear that at trial he was facing up to 30 on attempted murder." (App. 65, ECF No. 21-1 at 67.) According to plea counsel, there were no recommendations or negotiations on the sentence. (App. 65, ECF No. 21-1 at 67.) He explained, "I was made aware that the solicitor was going to ask for the maximum sentence. I told Mr. Smith that, but that we were free to ask for whatever we wanted to ask for, but it was a straight-up plea, so to speak." (App. 65, ECF No. 21-1 at 67.) Plea counsel testified that Petitioner wanted less than the maximum penalty, but he understood the potential outcomes. (App. 66, ECF No. 21-1 at 68.) Plea counsel testified that it was Petitioner's decision whether or not to plead guilty. (App. 66, ECF No. 21-1 at 68.) Plea counsel denied telling Petitioner what to say at the guilty plea colloquy, stating "I'm sure I went over with him the questions that were likely to be asked by the judge, but I didn't tell him how to answer those questions." (App. 66, ECF No. 21-1 at 68.)
The PCR court found that Petitioner had not met his burden of proof as to this ground, further finding:
Applicant has not proven neither [sic] that he was coerced into entering his plea, nor that he did not understand the consequences of entering a plea. The credible testimony is that of trial counsel. Trial counsel testified that he advised Applicant
that Applicant could receive a sentence of up to twenty (20) years incarceration. Trial counsel testified he never advised Applicant that Applicant could receive forty years as Applicant testified.[FN]
[FN] The plea judge, Roger M. Young, Sr., told Applicant on the record at the time of his plea that attempted murder "carried a sentence of up to 30 years."
(App. 78-79, ECF No. 21-1 at 80-81) (internal citations omitted).
Applicant presented a wide range of testimony encompassing his belief that he would not be convicted, that he had a defense of self-defense, that he was told by trial counsel and after his plea he could within ten days "revoke" his plea, and that he wanted to appeal. None of these established proof of coercion in his choice to enter his plea of guilty. As to the latter two of his beliefs, they would address post plea issues.
Trial counsel's advice to Applicant that he should enter a plea of guilt is not a coercive event. Rather, it is within the province and responsibility of trial counsel to so advice [sic] his or her client to enter a plea when trial counsel is of that belief. Here, counsel understood a plea of guilty by Applicant was in his client's best interest and so advised Applicant. The decision to plea is ultimately in every case, and in this case the record reflects the entry of the plea, was Applicant's free and voluntary choice.
Applicant also testified he wanted to talk to his family before he decided to plea or not. He apparently had plenty of opportunity to do so as there was a two year lapse of time between indictment and plea. None of Applicant's family testified and Applicant did not testify as to what, if any, value discussions with his family would have on his decision to plead guilty. In any event, the fact that he chose to plea at the time he ple[]d was a choice he made knowing he could go to trial if he desired based on his own testimony at his post-conviction relief hearing, and based on notice from the plea judge.
Wherefore, I find Applicant has not carried his burden of proof as to elements of his stated grounds for relief, and has not proven trial counsel was ineffective.
Petitioner has failed to show that the PCR court's findings as to plea counsel are contrary to, or an unreasonably application of, clearly established federal law, or are the result of an unreasonable determination of the facts. Petitioner's arguments that plea counsel coerced the plea rely, in large part, on Petitioner's testimony from the PCR evidentiary hearing that plea counsel gave him erroneous advice and told him that he would be convicted if he went to trial. However, the PCR court did not give credence to that testimony in the order of dismissal. The PCR court found that trial counsel's testimony was credible, a determination entitled to deference here. (App. 78, ECF No. 21-1 at 80); see Elmore v. Ozmint, 661 F.3d 783, 850 (4th Cir. 2011) ("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.' ") (quoting Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010) and Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008)). Petitioner has failed to point to clear and convincing evidence to rebut the PCR court's factual findings. See 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). Based on the credible testimony of plea counsel, it was not unreasonable for the PCR court to find that Petitioner's guilty plea was not the result of coercion or duress.
b. Ground Two
In Ground Two Petitioner asserts that plea counsel was ineffective for failing to appeal after Petitioner received the maximum sentence. According to Petitioner, plea counsel "knew that att. murder would not been a foregone conclusion, so because of his belief he strongly advised Petition to plea to ABHAN." (Pet., ECF No. 1 at 8.) Petitioner indicates that there was a "genuine issue" and that plea counsel "clearly knew that the injuries were most consistent with subsection 16-3-300 1(c) of assault & battery, thus appeal." (Id.) Respondent, on the other hand, argues that the PCR court made reasonable factual findings and reasonably applied federal law in denying and dismissing Petitioner's claim. The court agrees.
At the PCR evidentiary hearing, Petitioner testified that plea counsel did not tell him about the possibility of filing an appeal following his guilty plea. (App. 56, ECF No. 21-1 at 58.) Petitioner stated that plea counsel told him he could "revoke" his plea and would have ten days to do so. (App. 55-56, ECF No. 21-1 at 57-58.) Petitioner testified that he wanted to appeal the sentence. (App. 57, ECF No. 21-1 at 59.) Petitioner further testified that plea counsel called Petitioner once he was in prison and told Petitioner "that because of a letter he didn't know about, that he had grounds to revoke." (App. 57, ECF No. 21-1 at 59.)
Plea counsel testified that he and Petitioner discussed a potential motion to withdraw the plea, explaining:
[A]fter the plea, I did discuss possible motion to withdrawal [sic] due to several letters that were presented to the court that I had not been made aware of. I considered doing a motion to withdraw based on a Rule 5 violation; however, the solicitor provided a date in an e-mail with the letters attached where she provided those letters to Mrs. Penn, his previous attorney. And with that, I believe we did not have any grounds to withdraw the plea. Instead, we had the motion to reconsider.(App. 66-67, ECF No. 21-1 at 68-69.) Plea counsel testified that he did not file an appeal in Petitioner's case, nor did he believe there were any grounds for appeal. (App. 67, ECF No. 21-1 at 69.) Plea counsel recalled discussing the motion to withdraw with Petitioner. (Id.) While plea counsel knew that Petitioner was not satisfied with the result, he did not recall being asked to appeal. (Id.)
The PCR court dealt with this issue very succinctly—first, noting that "trial counsel is not ineffective for not filing an appeal for a plea of guilt unless the client requests or where a reasonable attorney would conclude that one entering a plea desires an appeal," and second, finding that Petitioner had failed to meet his burden of proof as to either of those exceptions. (App. 78, ECF No. 21-1 at 80 (citing Roe v. Flores-Ortega, 528 U.S. 470 (2000))). Alternatively, the PCR court noted that because this issue was not listed in Petitioner's PCR application, it was not before the court for consideration. (App. 78, ECF No. 21-1 at 80.)
Petitioner has failed to show that the PCR court's decision is contrary to, or an unreasonable application of, federal precedent. Indeed, the PCR court specifically cited to Roe v. Flores-Ortega, which states
To the extent Petitioner's current arguments can be read to claim that plea counsel should have known to file an appeal because there was a genuine (therefore, nonfrivolous) issue, that argument was not raised to and ruled upon by the PCR court and, thus, is not properly before this court. Moreover, the issue that Petitioner appears to raise, regarding the severity of the victim's injuries being inconsistent with the requirements of ABHAN set forth by the statute, does not take into account the entirety of the statute. See S.C. Code Ann. § 16-3-600(B)(1) ("A person commits the offense of assault and battery of a high and aggravated nature if the person unlawfully injures another person, and: (a) great bodily injury to another person result; or (b) the act is accomplished by means likely to produce death or great bodily injury.") (emphasis added). Whether or not the victim's injuries in this case qualified as "great bodily injury" under the statute, Petitioner has failed to show that the facts of his assault on the victim did not qualify for ABHAN based on the fact that the unlawful injury was "accomplished by means likely to produce death or great bodily injury."
[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.528 U.S. at 480. Furthermore, Petitioner has failed to identify any unreasonable factual findings that the PCR court made in denying and dismissing this issue.
c. Ground Four
As already discussed herein, under a liberal reading, part of Ground Four is preserved for this court's review. Specifically, to the extent Petitioner now argues that plea counsel coerced his guilty plea by not allowing Petitioner to speak to his family, the PCR court considered and rejected that issue as part of the overarching coerced guilty plea claim. As discussed with respect to Ground One, Petitioner has failed to show that the PCR court's decision was the result of unreasonable factual findings or an unreasonable application of federal law. With regard to the specific issue of plea counsel not allowing Petitioner to speak to his family the day of the guilty plea, Petitioner has also not met his burden of showing the PCR court's determination was unreasonable. As such, he is not entitled to habeas relief on the preserved part of Ground Four.
F. Respondent's Motion to Strike
Finally, Respondent has moved to strike an exhibit that was not part of the state court record. (ECF No. 28.) The motion should be denied. To the extent any exhibits improperly expand the record, see Rules Governing § 2254 Cases 7, they were not considered by the court. But see generally Fielder v. Stevenson, Civil Action No. 2:12-cv-412-JMC, 2013 WL 593657, at *4 (D.S.C. Feb. 14, 2013) ("[T]he usual bars to hearing evidence not presented in state court may not be applicable insofar as the claims relate specifically to the PCR attorney's ineffectiveness.") (citing Cristin v. Brennan, 281 F.3d 404, 417 (3d Cir. 2002)).
RECOMMENDATION
For the foregoing reasons, the court recommends Respondent's motion for summary judgment (ECF No. 22) be granted and the Petition be denied. Additionally, Respondent's motion to strike should be denied. (ECF No. 28.)
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE February 8, 2019
Columbia, South Carolina
The parties' attention 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
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).