Opinion
C. A. 8:21-cv-00892-JMC-JDA
03-22-2022
Touriarnold Spann, Petitioner, v. C. Williams, Warden, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the parties' cross-motions for summary judgment and default judgment [Docs. 19; 22], Petitioner's motion for evidentiary hearing [Doc. 30], Petitioner's motion to strike and to vacate [Doc. 36], and Petitioner's motion to appoint counsel, for estoppel, and for an evidentiary hearing [Doc. 41]. Petitioner is a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Proceeding pro se and in forma pauperis, Petitioner filed this Petition for writ of habeas corpus on March 23, 2021. [Docs. 1; 1-2.] On July 12, 2021, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 18; 19.] On July 13, 2021, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 20.] On September 13, 2021, the Clerk docketed a response from Petitioner opposing summary judgment, and Respondent filed a reply on September 20, 2021. [Docs. 29; 31.] On October 4, 2021, the Clerk docketed a second response from Petitioner opposing summary judgment, and Respondent filed a reply on October 8, 2021. [Docs. 35; 37.] On October 1, 2021, Respondent filed an additional attachment to its motion for summary judgment and, on October 13, 2021, the Court received a non-standard item in the form of a DVD. [Docs. 34; 39.] On October 25, 2021, Petitioner filed a reply to the non-standard item. [Doc. 42.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on March 23, 2021. [Doc. 1-1 at 1 (envelope marked as received in the prison mailroom on March 23, 2021).]
On July 20, 2021, Petitioner filed a motion for default and/or summary judgment. [Doc. 22.] Respondent filed a response in opposition to the motion on August 3, 2021. [Doc. 26.]
On September 13, 2021, Petitioner filed a motion for an evidentiary hearing. [Doc. 30.] Respondent filed a response in opposition to the motion on September 27, 2021. [Doc. 33.]
On October 4, 2021, Petitioner filed a motion to strike and to vacate. [Doc. 36.] On October 12, 2021, Respondent filed a response in opposition to the motion. [Doc. 38.]
On October 25, 2021, Petitioner filed a motion to appoint counsel, for estoppel, and for an evidentiary hearing. [Doc. 41.] Respondent filed a response in opposition to the motion on October 28, 2021. [Doc. 44.]
Finally, on November 10, 2021, the Clerk filed a letter from Petitioner dated November 7, 2021, in which he addresses various issues related to his claims. [Doc. 47.] The motions are now ripe for review. Having carefully considered the parties' submissions and the record in this case, including the records from the underlying state court actions, the Court recommends that Respondent's motion for summary judgment be granted, that each of Petitioner's motions be denied, and that the Petition be denied and dismissed.
BACKGROUND
Procedural History
Petitioner is presently confined at the Perry Correctional Institution in the custody of SCDC pursuant to orders of commitment of the Orangeburg County Clerk of Court. [Doc. 18-1 at 100, 103, 106, 109, 112.] In July 2014, Petitioner was indicted by the Orangeburg County Grand Jury for one count each of malicious injury to personal property (Indictment No. 2014-GS-38-0799), first degree burglary (Indictment No. 2014-GS-38-0800), possession of a weapon during the commission of a violent offense (Indictment No. 2014-GS-38-0801), impersonating a law enforcement officer (Indictment No. 2014-GS-38-0802), taking a vehicle by force (“carjacking”) (Indictment No. 2014-GS-38-0803), and armed robbery (Indictment No. 2014-GS-38-0804). [Id. at 5, 90-91, 98-99, 101-02, 104-05, 107-08, 110-11.]
Petitioner was represented in the state court on the above charges by Attorney Breen Stevens (“Stevens” or “trial counsel”). [Id. at 5, 90.] On March 23, 2015, Petitioner pled guilty to all six charges. [Id. at 3-28.] That same day, the trial judge sentenced Petitioner, in accordance with a recommendation made by the State, to a term of imprisonment of 30 days for malicious injury to personal property, 30 years for first degree burglary, 5 years for possession of a weapons during the commission of a violent offense, 1 year for impersonating a law enforcement officer, 30 years for carjacking, and 30 years for armed robbery, with all terms to be served concurrently. [Id. at 28.]
As explained in detail below, Petitioner's sentence on the carjacking charge was later corrected to 20 years.
Direct Appeal
Although Petitioner contends he did not file a direct appeal [Doc. 1 at 4], the undersigned notes that a notice of appeal appears to have been filed at Appellate Case Number 2015-000903, but the appeal was dismissed on November 30, 2015, because Petitioner “failed to provide a sufficient explanation as required by Rule 203(d)(1)(B)(iv) of the South Carolina Appellate Court Rules.” [Doc. 18-2.]
Post-Conviction Relief Proceedings
On November 30, 2015, Petitioner filed a pro se application for post-conviction relief (“PCR”) in the Orangeburg County Court of Common Pleas alleging numerous grounds for relief. [Doc. 18-1 at 30-36.] On April 1, 2016, the State made its return to the PCR application and requested an evidentiary hearing. [Id. at 37-41.] A hearing was held on May 24, 2017, with Attorney Jonathan D. Waller representing Petitioner. [Id. at 43-87.] The PCR court received testimony from Petitioner and from Stevens. [Id. at 44.] The PCR court denied and dismissed Petitioner's application with prejudice on April 13, 2018, and entered its order of dismissal on April 25, 2018. [Id. at 90-97.]
On Petitioner's behalf, Attorney David Alexander of the South Carolina Commission on Indigent Defense filed a Johnson petition for writ of certiorari in the Supreme Court of South Carolina, dated November 25, 2019. [Doc. 18-3.] The petition asserted the following sole issue for review on appeal:
A Johnson petition is the state PCR appeal analogue to a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and effectively concedes the appeal lacks a meritorious claim. See Johnson v. State, 364 S.E.2d 201 (S.C. 1988).
Whether petitioner's guilty plea was rendered involuntary because plea counsel failed to fully investigate the State's case?
[Id. at 3.] At the same time he filed the Johnson petition, Attorney Alexander submitted a petition to be relieved as counsel. [Id. at 9.] Petitioner then filed a pro se response to the Johnson petition and raised the following issues, which are recited substantially verbatim:
ARGUMENT ONE:
Petitioner['s] objection to Johnson Brief and Petition to be Relieved of counsel.
ARGUMENT TWO:
Did the PCR Court err[ ] in denying Petitioner[ ] a new trial when Petitioner['s] counsel did not convey the possible defense(s) to confront the State's case?
ARGUMENT THREE:
Whether the PCR Court erroneously denied Petitioner's discovery claim when such evidence was exculpatory and trial counsel did not have the DVD to consider its probative value before he advised Petitioner to plead guilty?
[Doc. 18-4 at 4.] The appeal was transferred to the South Carolina Court of Appeals, which filed an order on December 8, 2020, denying certiorari and granting counsel's request to withdraw. [Docs. 18-5; 18-6.] The remittitur was issued on January 5, 2021. [Doc. 18-7.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus under 28 U.S.C. § 2254 on March 23, 2021. [Doc. 1.] Petitioner asserted the following ground, quoted substantially verbatim:
GROUND ONE: [Trial counsel was] ineffective for failing to investigate; unlawful sentence; CVD withheld evidence.
SUPPORTING FACTS: Trial counsel was ineffective for failing to investigate facts of crime; trial court under sentence on carjacking; if trial counsel was held inform concerning the statement, I would have move[d] for a Jackson v. Denno hearing.[Id. at 7.] The Court construes Petitioner's single ground and supporting facts as asserting three separate claims of ineffective assistance of counsel and possibly one claim for a Brady violation as follows. First, Petitioner asserts a claim for ineffective assistance for counsel's failure to investigate the case (“Claim One”). Second, Petitioner asserts a claim for ineffective assistance for counsel's failure to object to an unlawful sentence for carjacking (“Claim Two”). Third, Petitioner asserts a claim for ineffective assistance for counsel's failure to (1) review DVDs containing surveillance footage with Petitioner and (2) review his confession on the burglary charge (“Claim Three”). Finally, Petitioner appears to assert a Brady claim for the State's alleged failure to turn over the DVDs containing surveillance footage (“Claim Four”).
It appears that Petitioner meant “DVD” rather than “CVD.”
The undersigned notes that Petitioner has not provided any explanation or argument concerning his single ground for relief presented in the Petition. In its return, Respondent identified the claims noted above, and the Court agrees with Respondent as to the construction of Petitioner's claims.
Brady v. Maryland, 373 U.S. 83 (1963), requires the prosecution, upon request, to provide the accused with evidence favorable to the accused.
Factual Background
Petitioner's charges and convictions arise from two separate events. The summary below is based on a recitation of the facts by the solicitor at Petitioner's plea hearing.
First, the charges of armed robbery, carjacking, impersonating a law enforcement officer, and possession of a weapon during a violent offense all arise from an incident on October 22, 2012 (the “carjacking incident”). [Doc. 18-1 at 9.] Officers responded to an armed robbery and carjacking incident that occurred in the town of Eutawville in Orangeburg County. [Id.] The victim, David Smith, stated that, as he was driving through the town, a car came up behind him and turned on flashing lights. [Id.] The victim pulled over because he thought it was a police car. [Id.] The victim stated a black male approached his car, displaying a badge and a gun. [Id. at 9-10.] The man asked for the victim's driver's license, then pulled the victim out of his car and began beating him. [Id. at 10.] While the victim was on the ground, three other men came up behind him. [Id.] All four men had guns. [Id.] One of the men put a gun to the victim's chest and began searching his pockets and took $400 cash from him. [Id.] Three of the men then got into the victim's car and the other man got into the other vehicle and they drove off. [Id.] After officers arrived, the victim gave them a description of his vehicle. [Id.] About 15 minutes later, police located the victim's vehicle and began to pursue it. [Id.] The vehicle then wrecked and the men jumped out and fled the scene. [Id.] The men were not apprehended at that time, and the vehicle was towed to the police impound lot to be processed for evidence. [Id.] Through the processing for evidence, police recovered a cell phone inside the vehicle that did not belong to the victim. [Id.] The police were able to identify the phone as belonging to the son of Roberta Spann, because her number was listed as “Mom” in the cell phone. [Id. at 11.] Police then compiled a photo lineup and the victim identified Petitioner as the man who first approached the victim's car with the badge and gun. [Id.] Also, Petitioner's fingerprints were on the phone and his DNA was inside the victim's vehicle. [Id.] The victim identified Petitioner and stated he was “100 percent positive” Petitioner was the man. [Id.] Based on the evidence noted above, Petitioner was charged with the crimes of armed robbery, carjacking, impersonating a law enforcement officer, and possession of a weapon during a violent offense. [Id.]
Second, the charges of first degree burglary and malicious injury to personal property both arise from an incident that occurred on November 26, 2012 (the “burglary incident”). [Id. at 11.] Officers responded to a call from a home in Eutawville in Orangeburg County stemming from an alarm. [Id.] The homeowner noted that damage was done to the back door. [Id.] Officers noticed that a lower panel of the door had been kicked in. [Id.] Officers observed that a TV had been moved from the living room and placed on the floor in the kitchen along with several other items as if those items were being gathered to be taken out before the alarm went off. [Id.] Missing from the home were three TV sets, several items of clothing, jewelry, electronics, and cash. [Id.] Officers located fingerprints at the crime scene which matched Petitioner's fingerprints. [Id. at 12.] Officers met with Petitioner, and he gave a written statement confessing to breaking into the victim's home. [Id.]
During Petitioner's plea hearing before the trial court, the State presented the facts noted above, and Petitioner admitted that he “agree[d] with the facts as stated by the State” and that he was “in fact, guilty of each of those charges.” [Id.]
Later during the plea hearing, Petitioner contested certain facts recited by the solicitor concerning the carjacking incident. Significantly, he denied getting out of his truck and approaching the victim's vehicle, denied beating the victim, and denied stealing the victim's vehicle. [Doc. 18-1 at 18-21.] However, Petitioner also acknowledged that he participated in the incident and that he was in fact guilty of the charges as a result of his involvement in the crime. [Id. at 20.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Habeas Corpus
Generally
Because Petitioner filed the Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of 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, 411 (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision, ” and “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101-02 (2011). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment. S.C. R. Civ. P. 59(e). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 17-27-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3), 243. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:
. . . [State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of 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, 468 U.S. at 10-11.
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule” and (2) “‘actual prejudice resulting from the alleged constitutional violation[, ]'” the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman, 501 U.S. at 735 n.1; Teague, 489 U.S. at 297-98; George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances-where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or where a “fundamental miscarriage of justice” has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of “cause, ” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
DISCUSSION
Before addressing the merits of the parties' cross-motions for summary judgment, the Court will address Petitioner's motion for evidentiary hearing [Doc. 30], motion to strike and to vacate [Doc. 36], and motion to appoint counsel, for estoppel, and for an evidentiary hearing [Doc. 41]. The Court will then turn to the merits of Petitioner's claims and evaluate the cross-motions for summary judgment. [Docs. 19; 22.]
Motion for Evidentiary Hearing
Petitioner has filed a motion for an evidentiary hearing. [Doc. 30.] To support his motion, Petitioner asserts simply that “this Court will find ‘structural errors' which are deemed to affect [Petitioner's] substantive rights, as required to satisfy the plain erro[r] standard of review, are fundamental flaws that undermined the structural integrity of a criminal tribunal.” [Id. at 1.] However, Petitioner presents no argument or reasons for the Court to hold an evidentiary hearing. On the other hand, Respondent argues Petitioner is not entitled to an evidentiary hearing because his underlying claims are without merit and because an evidentiary hearing would be premature at this stage given the pending motions for summary judgment. [Doc. 33.] The Court agrees.
Petitioner has failed to show that he is entitled to an evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2) or Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. To be entitled to receive an evidentiary hearing in a § 2254 case, a petitioner must (1) “allege[ ] additional facts that, if true, would entitle him to relief, ” Fullwood v. Lee, 290 F.3d 663, 681 (4th Cir. 2002) (internal quotation marks omitted), and (2) establish any one of the six factors set forth by the United States Supreme Court in Townsend v. Sain, 372 U.S. 293 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). The Townsend factors are as follows:
(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or
(6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.Id. at 313. Upon review of Petitioner's motion, the Court concludes that Petitioner has failed to set forth any additional facts that would entitle him to relief. Because Petitioner has failed to allege additional facts, the Court need not consider whether any of the Townsend factors have been met. Cardwell v. Greene, 152 F.3d 331, 338 (4th Cir.1998) (denying an evidentiary hearing where the petitioner “failed to forecast any evidence beyond that already contained in the record, or otherwise to explain how his claim would be advanced by an evidentiary hearing”), overruled on other grounds by Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000).
Additionally, the Court is able to resolve this case on the cross-motions for summary judgment on the basis of the state court record and the record before this Court. And, for the reasons below, the Court concludes that Petitioner's grounds for habeas relief are without merit. Accordingly, Petitioner's motion for an evidentiary hearing [Doc. 30] should be denied.
Motion to Strike and to Vacate
Petitioner's motion to strike and to vacate appears to be a motion to strike Respondent's return and motion for summary judgment and a motion to vacate Petitioner's guilty plea. [Doc. 36.] Specifically, Petitioner “moves to strike [Respondent's] boiler-[plate] defenses.” [Id. at 1.] Petitioner contends Respondent has identified an additional DVD that he was previously unaware of. [Id.] Petitioner argues this new DVD is prejudicial to him and constitutes a violation of his rights under the Fifth and Fourteenth Amendments. [Id.] Additionally, Petitioner moves to “vacate [his] void plea” pursuant to Rule 11 of the Federal Rules of Criminal Procedure because “he did not understand the full significance of his plea, nor did he know about exculpatory evidence” in the form of two DVDs. [Id. at 1-2.]
By way of response, Respondent argues that the defenses asserted in the return and memorandum of law are not boilerplate defenses but are meritorious defenses showing that Petitioner's claims are procedurally barred, not cognizable, and have no factual or legal merit. [Doc. 38 at 2.] Additionally, Respondent argues that Petitioner's assertion “that there are actually 2 DVDs that he was never aware of and not shown before his pleas is not credible based on the State court record.” [Id. (emphasis in original).] Finally, Respondent argues that Petitioner is not permitted to have his guilty pleas vacated in this habeas action pursuant to Rule 11. [Id. n.2.] The Court agrees with Respondent on each argument as explained below.
First, to the extent Petitioner's motion is a motion to strike Respondent's return, it should be denied. Federal Rule of Civil Procedure 12(f) allows a court, acting either on its own or on motion made by a party, to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Whether to grant a motion to strike under Rule 12(f) is within the sound discretion of the court, see GTSI Corp. v. Wildflower Int'l, Inc., No. 1:09-cv-123, 2009 WL 2160451, at *4 (E.D. Va. July 17, 2009), but striking a defense under Rule 12(f) is generally disfavored because it is a drastic remedy and motions to strike are “‘often sought by the movant simply as a dilatory tactic, '” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 at 647 (2d ed. 1990)). Here, contrary to Petitioner's assertion, Respondent's return contains valid defenses applicable to the merits of Petitioner's claims.
Next, to the extent Petitioner's motion is a motion to strike Respondent's motion for summary judgment, it should be denied because Rule 12(f) “applies only to “‘pleading[s]'” and, “[b]ecause [Respondent's] motion is not a pleading, Rule 12(f) provides no authority for striking it.” Goss v. Williams, No. 2:18-cv-2938-BHH-MGB, 2019 WL 7900173, at *3 (D.S.C. June 19, 2019), Report and Recommendation adopted by 2020 WL 502635 (D.S.C. Jan. 31, 2020), appeal dismissed, 814 Fed.Appx. 776 (4th Cir. 2020); see also Guessford v. Penn. Nat'l Mut. Cas. Ins. Co., No. 1:22-cv-260, 2013 WL 12136501, at *3 (M.D. N.C. May 24, 2013).
Further, to the extent that Petitioner's motion seeks to strike from the record the two DVDs referenced in the parties' submissions, the undersigned finds that the motion should be denied as the DVDs are part of the state court record and are relevant to the Court's evaluation of the merits of the present habeas action. The undersigned will address the relevance of the DVDs below in its analysis of Petitioner's claims and the merits of Respondent's defenses and arguments.
Finally, Petitioner cannot vacate his guilty plea under Rule 11 in this action and his motion therefore should be denied. Accordingly, for the reasons above, Petitioner's motion to strike and to vacate [Doc. 36] should be denied.
Motion to Appoint Counsel, for Estoppel, and for an Evidentiary Hearing
Next, Petitioner has filed a motion [Doc. 41], which appears to include three separate requests: (1) a motion to appoint counsel, (2) a motion for estoppel, and (3) a motion for an evidentiary hearing. Respondent contends Petitioner is not entitled to any of the relief that he requests in the motion. [Doc. 44.] The Court agrees and will address each request in turn below.
Petitioner's motion to appoint counsel should be denied. While there is no constitutional right to appointed counsel in a civil case, Whisenant v.Yaum, 739 F.2d 160, 163 (4th Cir. 1984) (holding that 28 U.S.C. § 1915 does not authorize compulsory appointment of counsel), abrogated on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989), this Court may exercise its discretion to appoint counsel for an indigent in a civil action, 28 U.S.C. § 1915(d); see Smith v. Blackledge, 451 F.2d 1201, 1203 (4th Cir. 1971). However, the Fourth Circuit has stated that counsel should be appointed only in exceptional circumstances, which “will turn on the quality of two basic factors-the type and complexity of the case, and the abilities of the individuals bringing it.” Brock v. City of Richmond, 983 F.2d 1055 (4th Cir. 1993) (internal quotation marks omitted) (quoting Whisenant, 739 F.2d at 163). Upon review, the pleadings and documents filed in this case fail to demonstrate that exceptional circumstances exist warranting the appointment of counsel at this stage in the proceedings. The undersigned further notes that Petitioner has demonstrated the ability to adequately litigate his case by bringing this action on his own behalf and filing numerous motions and responses to Respondent's filings. Accordingly, Petitioner's motion to appoint counsel should be denied.
Next, Petitioner's motion for estoppel should be denied. Petitioner's motion for estoppel appears to be related to his assertion that he only recently learned of a second DVD that was not provided to him prior to his guilty plea. [Doc. 41 at 2.] Petitioner appears to argue that the existence of this DVD was “suppressed” and that its contents is “excu[l]patory in nature.” [Id.] Petitioner seems to ask that Respondent be estopped from relying on the existence and/or contents of the DVD to be used “to establish[ ] guilt.” [Id.] Petitioner's argument is without merit. As discussed in detail below, the State did not improperly withhold the DVD evidence from Petitioner or his counsel and the contents of the DVD are not exculpatory in nature. As such, upon review of the parties' arguments and the evidence before the Court, the undersigned finds that Petitioner's motion for estoppel is without merit and should be denied.
In sum, Petitioner's trial counsel testified that he submitted Brady requests to the prosecutor, that he reviewed the prosecutor's file, that he discussed all of the evidence against Petitioner with him, and that he would have reviewed the DVDs with Petitioner had they been in the file. [Doc. 18-1 at 65-68.] Additionally, the undersigned notes that the solicitor provided copies of the two DVDs, which contained surveillance footage, to Petitioner's trial counsel on March 11, 2015, prior to the plea hearing. [Doc. 18-4 at 20.] And, critically, the contents of the DVDs are incriminating and not exculpatory in nature.
Finally, Petitioner's motion for an evidentiary hearing should be denied for the reasons already stated. Therefore, each and every request in Petitioner's motion to appoint counsel, for estoppel, and for an evidentiary hearing [Doc. 41] should be denied.
Motions for Summary Judgment
Next, the parties have filed cross-motions for summary judgment. Respondent argues he is entitled to summary judgment on all claims raised in the Petition. [Doc. 18.] The Court agrees. Additionally, the Court finds that Petitioner's motion for default and/or for summary judgment is without merit and should be denied.
Applicable Law
Under the AEDPA, a federal court may not grant habeas relief unless the underlying state court decision was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court, id. § 2254(d)(2). The Supreme Court has held the “contrary to” and “unreasonable application of” clauses present two different avenues for relief. Williams, 529 U.S. at 405. The Court stated there are two instances when a state court decision will be contrary to Supreme Court precedent:
A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . . A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.Id. at 405-06. Additionally, a state court decision is an unreasonable application of Supreme Court precedent when the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. at 407-08; see also Richter, 562 U.S. at 102 (“Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. . . . It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). Finally, a decision cannot be contrary to or an unreasonable application of Supreme Court precedent unless applicable Supreme Court precedent exists; without applicable Supreme Court precedent, there is no habeas relief for petitioners. See Virsnieks v. Smith, 521 F.3d 707, 716 (7th Cir. 2008); Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008).
As noted, Petitioner appears to assert claims concerning his trial counsel's ineffective assistance. In Strickland v. Washington, the United States Supreme Court established that, to challenge a conviction based on ineffective assistance of counsel, a prisoner must prove two elements: (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. 466 U.S. 668, 687 (1984). To satisfy the first prong, a prisoner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. To satisfy the second prong, a prisoner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The Supreme Court has cautioned that “[j]udicial scrutiny of counsel's performance must be highly deferential, ” and “[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
Discussion
Claim One
In Claim One, Petitioner alleges that trial counsel was ineffective for failing to investigate his case. [Doc. 1 at 7.] Respondent, on the other hand, maintains that he is entitled to summary judgment on this claim because the record shows that trial counsel fully investigated both of the incidents noted above and the facts underlying each of the charges against Petitioner. [Doc. 18 at 29-35.]
Petitioner does not provide an explanation for Claim One in his Petition and he provides no argument in his subsequent filings regarding his assertion that his attorney failed to investigate the facts of the crimes. In any case, the record before the Court is clear that trial counsel provided competent representation and fully investigated both the carjacking incident and the burglary incident.
The closest thing to an argument on Claim One is a letter from Petitioner dated November 7, 2021. [Doc. 47.] In that letter, Petitioner reiterates that his trial counsel “did [not] investigate this case properly.” [Id. at 1.] He further states that Stevens said “all the evidence [pointed] at [Petitioner]” even though DNA from other individuals was present at the scene and other individuals were shown on the surveillance footage. [Id.] Petitioner states that, if Stevens “had properly [in]vestigate[d] this case[, ] thing[]s would [have] been different” and that it was “false to take the plea.” [Id. at 1-2.] Petitioner states Stevens did not show him the first DVD until March 24 or 25, 2015, and that he only recently learned of the second DVD. [Id.] Despite these assertions, Petitioner does not explain what more his trial counsel could have done to investigate his case and what, if anything, further investigation would have yielded such that Petitioner would have gone to trial rather than plead guilty or changed the case in favor of Petitioner in any meaningful way.
At the PCR hearing, Petitioner's trial counsel testified that he reviewed a guilty-plea checklist with Petitioner and discussed the different sentences and different defenses applicable to Petitioner's charges. [Doc. 18-1 at 63.] Stevens testified that, based on the charges and Petitioner's prior criminal history, he potentially could have been sentenced to life without parole (“LWOP”); however, the State agreed to recommend a sentence of 30 years, if Petitioner pled guilty. [Id. at 64.] The State notified Petitioner and Stevens that it intended to seek LWOP if the case proceeded to trial. [Id.] Stevens testified that he pulled the indictments and sentencing sheets for Petitioner's prior charges and convictions from the clerk's office records to confirm that he would have been exposed to LWOP had he gone to trial and lost. [Id.]
At the PCR hearing, Petitioner was asked, “Did you actually get served with a notice of intent to seek life without parole?” [Doc. 18-1 at 62.] Petitioner responded, “Yeah. Yes, sir.” [Id.]
Stevens testified that, after having conversations with Petitioner about his case and before the plea hearing, he wrote a 15-page letter for Petitioner detailing “everything” related to the case. [Id. at 65.] Specifically, he detailed all of the charges, the elements of each charge, the possible sentences for the charges, the possibility of receiving an LWOP sentence if convicted, the different witnesses involved, and the evidence involved, both direct and circumstantial. [Id. at 65-66.] Stevens testified that, as to the carjacking incident, the victim would testify concerning the facts of that incident and would identify Petitioner as the perpetrator. [Id. at 66.] Stevens also testified that he understood the State would likely introduce a video of Petitioner's car leaving a convenience store following the victim's car. [Id. at 67.] Stevens testified that the video was shown at Petitioner's brother's trial and that Petitioner “did testify pretty much acknowledging everything including his own activity and action and involvement in the matter” and that his testimony “pretty much confirmed what was actually on the video.” [Id. at 68.] Although Stevens testified that he could not find the video in his file at the time of the PCR hearing, he stated that he reviewed the State's entire file on March 18 prior to the plea hearing and that, if he had access to the video, he would have gone over it, and if the State had not had the video in the file, he would have opposed its admission at trial. [Id. at 67-68.] Stevens testified that he visited the crime scene with his own investigator to check everything out and see where everything occurred. [Id. at 68.]
Stevens testified that police recovered Petitioner's phone from the victim's vehicle, that the phone contained Petitioner's fingerprint, and that his DNA was present in the vehicle. [Id. at 69.] Stevens testified that he reviewed all of the evidence with Petitioner in the letter and what the State would present, including statements by the investigators regarding the fingerprint and DNA evidence. [Id. at 69-70.] Stevens testified that he hired, through ex parte funding, his own DNA expert to evaluate the State's DNA evidence. [Id. at 70.] Stevens testified that he filed specific Brady motions related to the DNA evidence and provided all of that information to his DNA expert. [Id.] As to the DNA expert's opinion, Stevens testified, “to put it bluntly, he indicated we had a problem.” [Id.] Stevens testified that the DNA expert asked if they could explain why Petitioner's DNA was present, “because everything was done right” by the investigators. [Id.]
Stevens testified that he also obtained funding to hire two experts to review the fingerprint evidence. [Id.] According to Stevens, those two experts reviewed everything and concluded that “it[ was] a good print.” [Id.] Based on the opinions of the experts that he hired, Stevens testified that Petitioner “had problems when it [came] to the forensic evidence” and Stevens discussed that with Petitioner. [Id.] Stevens testified that he discussed possible defenses Petitioner might have, particularly in light of the forensic evidence. [Id.]
Stevens testified that, on August 26, 2014, he met with Petitioner to discuss the DNA evidence and suggested one option would be to “fight them getting a buccal swab through a Schmerber hearing, ” but Petitioner instructed him to not fight it. [Id. at 71.]
Stevens testified that he met with Petitioner on September 10, 2014, after which there was a hearing and Petitioner was served with the indictments related to the burglary incident. [Id.] Stevens testified that, although the carjacking incident and burglary incident were separate incidents, the State was proceeding on all charges stemming from both incidents together. [Id.] Stevens testified that Petitioner wanted to know about his bond, and they had discussions about that. [Id.] However, Petitioner stated he did not want to request a bond reduction. [Id.]
Stevens testified that he was “gearing up for trial, ” continuing “to discuss discovery the entire time, ” and started working with Attorney Wyman, who would serve as second chair at the trial. [Id. at 72.] Stevens testified
[i]t was March 6th that [Petitioner] indicated that he did not want to go forward with a trial because he was very concerned if he was convicted he would get LWOP. And I think that was a legitimate concern. He wanted us to try to negotiate with the prosecutor for a plea possibly to give names of two others and testify against them regarding the carjacking.[Id.] After the March 6 conversation with Petitioner, Stevens contacted the prosecutor to discuss the possibility of a plea offer. [Id.] Stevens testified that he was “trying to basically get as low as we possibly can” with a sentence. [Id.] Stevens testified that the prosecutor agreed to a plea agreement and would recommend a sentence with a 30-year cap stemming from the first degree burglary charge. [Id.]
Stevens testified that he reviewed a guilty-plea checklist with Petitioner and that both Stevens and Petitioner signed it. [Id. at 73.] The guilty-plea checklist was admitted into evidence at the PCR hearing. [Id.] Stevens testified that most of his representation was focused on preparing for trial and that he switched his focus to negotiating a plea after the conversation with Petitioner on March 6. [Id. at 74.] Stevens testified that he always “go[es] over everything top to bottom” with every client. [Id. at 75.]
Petitioner raised Claim One in his PCR. The PCR court properly addressed trial counsel's performance under the standards set forth in Strickland and Hill. Regarding Petitioner's claim that trial counsel was ineffective in failing to investigate DNA evidence, the search warrant for his phone, and fingerprint analysis, the PCR court noted as follows:
Applicant failed to show how further investigation by Counsel would have benefited Applicant at trial. Applicant's assertion Counsel should have investigated further is purely speculative. Applicant did not present what Counsel would have found if he had hired an investigator sooner or done further investigation. Notwithstanding the fact this Court does not find Counsel deficient for failing to investigate, a court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Strickland, 466 U.S. 668. “The applicant's mere speculation what the witnesses' testimony would have been cannot, by itself, satisfy the applicant's burden of showing prejudice, ” State v. Glover, 318 S.C. 496, 498-499, 458 S.E.2d 538, 540. “Failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to the result.” Moorehead v. State, 329 S.C. 329, 496 S.E.2d 415 (1998). The only evidence Applicant presented regarding witness testimony or further investigation was speculation on the part of Applicant. This Court finds Applicant failed to prove he was prejudiced by any lack of investigation by Counsel.
Having reviewed the pleadings, considered the applicable law, and reflected upon the testimony provided at the evidentiary hearing, this Court finds Applicant's allegation that his guilty plea was involuntary to be meritless. Applicant failed to present any evidence that Counsel's performance or advice was deficient or that he was prejudiced by the deficiency.
Further, the evidence against Applicant was overwhelming. Applicant gave a written confession to the crime and was linked to the crime by fingerprints, DNA evidence, and Applicant's phone which was left at the scene. Based on the testimony, this Court also finds the evidence against Applicant was overwhelming and any error of Counsel would not have prejudiced Applicant. Therefore, Applicant cannot prove prejudice where the evidence against [him] was overwhelming. See Harris v. State, 377 S.C. 66, 79, 659 S.E.2d 140, 147 (2008).
Accordingly, this Court finds Applicant failed to prove Counsel failed to properly investigate. This Court also finds Applicant failed to prove he was prejudiced by Counsel's lack of investigation such that there was a reasonable probability Applicant would have insisted on trial rather than plead guilty. Accordingly, this Court denies and dismisses this allegation.
[Doc. 18-1 at 95-96.]
Because the PCR court applied the correct legal standard and the record fails to demonstrate the court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from Supreme Court precedent, the Court concludes the state court's decision was not contrary to applicable Supreme Court precedent. Thus, this Court must analyze “whether the state court's application of the Strickland standard was unreasonable.” Richter, 562 U.S. at 101.
This Court cannot find that the PCR court's application of Strickland was unreasonable. As the PCR court noted, Petitioner's claim that counsel failed to properly investigate is speculative. Indeed, Petitioner has not identified for this Court any deficiencies in his trial counsel's investigation of his case. And, significantly, the PCR court found that, even if Petition could show that his trial counsel's investigation was deficient, he could not show that he suffered any prejudice because “the evidence against [him] was overwhelming.” [Doc. 18-1 at 96.] As the PCR court noted, Petitioner “gave a written confession to the [burglary incident] and was linked to the crime[s] by fingerprints, DNA evidence, and [his] phone which was left at the scene” of the carjacking incident. [Id.]
The undersigned agrees and concludes that the transcripts from Petitioner's plea hearing and PCR hearing show that his trial counsel thoroughly and exhaustively investigated the case. As noted, Petitioner's trial counsel had numerous conversations with Petitioner, he wrote a 15-page letter outlining every aspect of the case, he discussed Petitioner's constitutional rights with him, he discussed the charges and possible penalties for each charge, he discussed the possibility that Petitioner could be sentenced to LWOP if convicted, he reviewed the State's evidence with Petitioner, he went to the prosecutor's office and reviewed the State's file, he walked the crime scene with an investigator, he hired fingerprint and DNA experts to evaluate the State's evidence and the experts reported that the fingerprint and DNA evidence were unfavorable to Petitioner, and he prepared the case to go to trial. And, importantly, trial counsel testified that Petitioner decided he did not want to go to trial because he preferred to negotiate a plea and a recommended sentence so that he would not risk a sentence to LWOP.
Overall, the PCR court concluded that trial counsel's actions were reasonable, and Petitioner has not demonstrated that the PCR court unreasonably applied Strickland in coming to that conclusion. Petitioner has also not shown that the PCR court's conclusion was the result of unreasonable factual findings. The speculation that Petitioner offers about his trial counsel's failure to investigate is insufficient to demonstrate by clear and convincing evidence that the PCR court's factual findings are not entitled the presumption of correctness afforded them by 28 U.S.C. § 2254.
On this record, the Court cannot find that the PCR court's application of Strickland was unreasonable or that its decision was contrary to or an unreasonable application of Supreme Court precedent. Nor can the Court find that the PCR court's decision was the result of an unreasonable determination of the facts in light of the evidence presented in state court. For these reasons, the Court concludes that Petitioner is not entitled to habeas relief on Claim One and summary judgment should be granted to Respondent on that ground.
Claim Two
In Claim Two, Petitioner appears to allege that trial counsel was ineffective for failing to object to the trial court's incorrect sentence for the carjacking charge. [Doc. 1 at 7.] Respondent contends that he is entitled to summary judgment because this claim is moot as Petitioner's sentence was corrected in the state court PCR proceedings and he is not entitled to any further relief on that claim. [Doc. 18 at 35-37.]
At the plea hearing, the sentencing court sentenced Petitioner to 30 years on the carjacking charge as follows:
On indictment 2014-GS-38-0803, for taking or attempting to take a vehicle by force and great bodily harm, likewise you are hereby committed to the State Department of Corrections for a period of 30 years.
[Doc. 18-1 at 28.] Although the State recommended a 30-year sentence at the plea hearing and the sentencing court sentenced Petitioner to a 30-year sentence on the carjacking charge, the maximum sentence for carjacking without great bodily injury is 20 years under South Carolina law. See S.C. Code Ann. § 16-3-1075(B)(1) (“Upon conviction for this offense [of carjacking, which is defined as taking, or attempting to take, a motor vehicle from another person by force and violence or by intimidation], a person must[ ] be imprisoned not more than twenty years.”). Petitioner's trial counsel explained at the PCR hearing that this was an error made at the plea hearing and he failed to correct it. Specifically, Attorney Stevens testified at the PCR hearing that he understood that the carjacking charge carried only 20 years. [Doc. 18-1 at 63.] In fact, Stevens testified, when he reviewed the guilty-plea checklist with Petitioner, the checklist indicated 20 years for the crime of carjacking. [Id. at 64.] According to Stevens, he “totally missed it at the hearing” and he “even put 20 years for the carjacking sentence in the notice of appeal [he] filed immediately after” the hearing. [Id.] Stevens testified that he “missed it” and “should have moved for a motion to reconsider the sentence on the carjacking sentence orally or in writing.” [Id.] However, Stevens also testified that, in addition to the carjacking, Petitioner also pled guilty to a first degree burglary charge that carried a sentence of 30 years and that the overall recommendation for all of the charges, based on that charge, was a 30-year sentence. [Id.]
Although the issue was not raised during the plea hearing or in Petitioner's direct appeal, both the State and PCR counsel stipulated at the PCR hearing that the carjacking sentence was erroneous and requested that the PCR court correct the sentence. The PCR court addressed this argument in its order and corrected Petitioner's sentence as follows:
This Court agrees with [Petitioner's] assertion that his sentence was unlawful. The maximum sentence for carjacking without great bodily injury is twenty years. [Petitioner] was sentenced to thirty years on that charge. However, the plea deal offered by the State and accepted by [Petitioner] was for a recommendation of thirty years and [Petitioner] received concurrent thirty-year sentences for Burglary 1st degree and Armed Robbery.
[Petitioner] was not prejudiced because the sentence he received was not altered by the incorrect sentence on Carjacking and the plea deal he agreed to, incarceration for thirty years, is the sentence he received. Therefore, this Court finds [Petitioner] failed to prove he was prejudiced by Counsel's lack of investigation such that there was a reasonable probability [Petitioner] would have insisted on trial rather than plead guilty. This Court also finds [Petitioner's] guilty plea was voluntarily, intelligently, and knowingly made. This Court, with the consent of the State and [Petitioner], resentenced [Petitioner] to twenty years' incarceration on his Carjacking charge during the PCR hearing. Therefore, this Court dismisses the allegation [Petitioner's] guilty plea was involuntary based on the unlawful sentence.[Id. at 94-95.]
Petitioner's argument in the present action that he is entitled to relief as to counsel's ineffective assistance related to the improper sentence on the carjacking charge is without merit. The undersigned first observes that the PCR court applied the correct legal standard and the record fails to demonstrate the PCR court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from Supreme Court precedent. Thus, the state court's decision was not contrary to applicable Supreme Court precedent. Likewise, the PCR court's application of the Strickland standard was not unreasonable.
Additionally, although the PCR court properly denied Petitioner's claim that his guilty plea was involuntary based on the unlawful sentence, the court corrected his incorrect sentence. Thus, because the PCR court already corrected Petitioner's sentence, he is not entitled to any further relief and his claim is moot. Thus, the Court concludes that Petitioner is not entitled to habeas relief on Claim Two, and the undersigned recommends that summary judgment be granted to Respondent on that ground.
Claim Three
In Claim Three, Petitioner appears to argue that his trial counsel was ineffective in failing to review a DVD with him and failing to review his confession to the burglary charge with him. [Doc. 1 at 7.] Petitioner asserts that, had counsel reviewed his confession, he would have requested a Jackson v. Denno hearing. [Id.] Respondent, on the other hand, argues that both issues presented in this claim were waived and abandoned in the state court. [Doc. 18 at 37.]
As an initial matter, the undersigned agrees with Respondent that Petitioner waived these two issues in the state court. The PCR court did not address these two issues in its order of dismissal separately from its discussion of the failure to investigate claim, and Petitioner did not file a motion to alter or amend the order to have the two issues addressed. Additionally, Petitioner did not raise the issues in his appeal from the denial of his PCR. Accordingly, Petitioner waived and/or abandoned these two issues in the state court.
Even if Petitioner had preserved these issues for review, his claim would nevertheless be without merit. As noted, the PCR court address counsel's performance, including his handling of the DVDs and Petitioner's confession to the burglary incident, in its evaluation of Petitioner's claim that trial counsel failed to properly investigate the case. This Court has analyzed that claim in the section above and finds that Petitioner is not entitled to relief on Claim Three for the reasons already stated in Claim One. Nevertheless, the Court will briefly address each issue below.
The DVDs
At the PCR hearing, Petitioner testified that trial counsel never reviewed the DVDs with him and that he did not even know DVDs existed until after he pled guilty. [Doc. 18-1 at 60.] On the other hand, trial counsel testified as follows. Stevens noted he could not locate the DVDs in his file at that the time of the PCR hearing. [Id. at 67.] However, he testified that he reviewed the prosecutor's entire file prior to the plea hearing. [Id. at 68.] He testified that, if he had had a DVD in his file, he would have gone over it. [Id.] Additionally, he testified that, if he had not had a DVD of video surveillance, then he would have opposed its admission at trial. [Id.] Stevens noted that it was “unlikely” that he did not have the DVDs before Petitioner's plea hearing. [Id. at 77.] Stevens testified that he would have received the DVDs before the plea hearing because he “asked for everything” and he “filed not just one but multiple specific Brady motions.” [Id. at 78.] And, although Stevens could not recall whether he specifically asked for the DVDs, the State had an obligation under Brady to turn them over without a specific demand. [Id.]
Specifically, Stevens testified that he did not have a physical copy of the DVDs in his file at the PCR hearing, but that the DVDs might have been placed into storage in a separate location. [Doc. 18-1 at 80.]
Critically, Stevens testified that, regardless of whether the DVDs were in his file, “the video that was later shown at [Petitioner's] brother's trial when [Petitioner] did testify pretty much acknowledg[ed] everything including his own activity and action and involvement in the matter. What was testified to at trial pretty much confirmed what was actually on the video.” [Id. at 68.] Stevens went on to explain that the DVDs showed the victim leave a location and Petitioner and other men who were with him leave a convenience store parking lot and follow the victim in Petitioner's truck. [Id.]
The Court makes the following observations. First, Petitioner has failed to put forth evidence showing that his trial counsel failed to review the DVDs in his preparation of Petitioner's case or failed to discuss the contents of those DVDs with him. The record shows that the solicitor served copies of the DVDs on Petitioner's trial counsel and Stevens testified that he reviewed the solicitor's entire file and discussed all of the evidence with Petitioner. There is simply no evidence, other than Petitioner's unsubstantiated assertion, that trial counsel failed to evaluate and discuss the contents of the DVDs with him. And, the contents of the DVDs incriminated Petitioner and provided no favorable evidence for him. Thus, Petitioner cannot plausibly argue that he would not have pled guilty had he known about the contents of the DVDs.
The Burglary Confession
Next, Petitioner appears to argue that trial counsel failed to discuss his burglary confession with him and that, if he had, Petitioner would have requested a hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964). In Jackson, the Supreme Court held that a criminal defendant has a “constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession.” 378 U.S. at 376-77.
However, Petitioner has failed to produce any credible evidence that trial counsel was ineffective regarding Petitioner's confession. The undersigned has reviewed the evidence and testimony of record and has reviewed Petitioner's written confession [Doc. 18-8 at 71-72] and waiver of rights [id. at 70] and concludes that Petitioner's confession was freely and voluntarily made and that his rights were not violated. Petitioner has not explained his contention that his confession was involuntary. And, any such contention is unsupported by the record. Accordingly, Petitioner has failed to show that his trial counsel's representation was deficient under Strickland.
The undersigned notes that, although the PCR court did not address the voluntariness of Petitioner's confession separately from its evaluation of Petitioner's claim that trial counsel's investigation was deficient, the court did point to Petitioner's written confession as part of the “overwhelming” evidence against Petitioner. “In a federal habeas proceeding, the ultimate determination of a Miranda waiver is a mixed question of law and fact which merits independent consideration by the district court. However, a state court's determination of the facts underlying the voluntariness of a confession are still entitled to a presumption of correctness.” King v. Stevenson, No. 0:12-cv-949-CMC-PJG, 2013 WL 3148406, at *2 n.1 (D.S.C. June 19, 2013) (citations omitted). Here, there is no evidence to show that the state court proceedings resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. Moreover, Petitioner has failed to rebut by clear and convincing evidence the presumption that the factual determinations of the state court are correct.
Additionally, Petitioner cannot establish that there was a factual basis for his trial counsel to request a Jackson v. Denno hearing. “Petitioner does not offer any evidence that his statement was coerced, unknowing, or involuntary, nor has he made any allegations that [anyone] made promises or threats or trickery in questioning Petitioner.” Galbreath v. Cartledge, No. 1:14-cv-110-RMG, 2015 WL 1011316, at *22 (D.S.C. Mar. 5, 2015), Report and Recommendation adopted by 2015 WL 1143181 (D.S.C. Mar. 13, 2015). Petitioner has not shown that the state court's analysis of this issue, to the extent it addressed the issue, misapplied clearly established federal law, or even if there were an error, that it was unreasonable. See Williams, 529 U.S. at 410.
Accordingly, the Court concludes that Petitioner has failed to create a genuine factual dispute as to either of the Strickland prongs regarding either of the two issues contained in Claim Three, and the Court recommends that summary judgment be granted to Respondent on Claim Three as well.
Claim Four
Finally, as to Claim Four, it is unclear whether Petitioner intends to raise a Brady violation claim. The Petition merely asserts that DVD evidence was withheld. [Doc. 1 at 7.] Although Petitioner provides no other context or allegations in his Petition, he appears to assert that this purported nondisclosure constitutes a Brady violation. Thus, out of an abundance of caution and giving liberal construction to the pro se Petition, the Court will treat the Petition as asserting a Brady violation claim with respect to the two DVD recordings of surveillance footage. In any case, to the extent Petitioner is raising such a claim, that issue was abandoned in the state court and the claim lacks merit.
To prove a Brady violation, a habeas petitioner must show that the evidence was (1) favorable to him; (2) material; (3) in the possession of the prosecution before trial; and (4) not disclosed to him upon request. See United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001). Stated otherwise, Brady mandates the disclosure of favorable evidence when it “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v.
Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).Watkins v. Rubenstein, 802 F.3d 637, 642 (4th Cir. 2015). The Supreme Court has identified three fundamental components to a Brady claim: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the state; and (3) the evidence must be material to the defense, that is prejudice must ensue. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In a habeas action, such as this one, the cause and prejudice showing necessary to overcome a defaulted Brady claim “‘parallel[s] two of the three components of the alleged Brady violation itself.'” Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting Strickler, 527 U.S. at 282). “Thus, the required showing of cause corresponds to the Brady requirement that the petitioner show that the state suppressed the evidence[, and t]he showing of prejudice required to excuse a procedural default corresponds to the Brady prejudice requirement.” Walker v. Kelly, 589 F.3d 127, 137 (4th Cir. 2009) (citations omitted).
Here, Petitioner appears to contend that the prosecutor violated Brady in failing to produce before trial the two DVD recordings of surveillance video taken from a scene related to the carjacking incident. Petitioner's claim fails for a number of reasons.
First, Petitioner has failed to demonstrate that the prosecutor suppressed the DVDs and failed to disclose them prior to the plea hearing. At the PCR hearing, Petitioner testified that he did not see the DVDs or even know they existed until after he pled guilty. [Doc. 18-1 at 60.] However, his trial counsel testified that he submitted multiple Brady requests, reviewed the prosecutor's entire file, and discussed all of the evidence with Petitioner. [Id. at 77-81.] Further, the record clearly shows that the solicitor provided copies of the two surveillance videos to Petitioner's trial counsel on March 11, 2015, prior to the plea hearing. [Doc. 18-4 at 20.] Petitioner has simply failed to produce evidence showing the solicitor suppressed the DVDs or otherwise committed a Brady violation.
Second, even if the prosecutor had failed to disclose the DVDs, there is no evidence that the nondisclosure would have harmed Petitioner. Indeed, Petitioner advances no argument whatsoever that the DVDs contain exculpatory evidence or any evidence favorable to him. To the contrary, the surveillance videos squarely place Petitioner at the scene of the crime and appear to incriminate him as to the events giving rise to the charges against him. As such, Petitioner has failed to establish evidence that the DVDs were favorable to his defense. See Walker v. Kelly, 589 F.3d 127, 140 (4th Cir. 2009) (“In order to establish a Brady violation, the evidence suppressed by the state ‘must be favorable to the accused, either because it is exculpatory, or because it is impeaching.'” (citation omitted)).
In sum, Petitioner waived and/or abandoned any Brady violation claim in the state court and he has failed to show cause and actual prejudice to overcome his failure to litigate that claim. And, even if the Court were to reach the merits of the claim, Petitioner has simply not shown a Brady violation because the solicitor disclosed the DVDs to Petitioner's counsel and the contents of those DVDs are not favorable to Petitioner.
Petitioner's Motion for Default and/or Summary Judgment
Finally, the Court briefly addresses Petitioner's motion for default and/or summary judgment. [Doc. 22.] In his motion, Petitioner argues he is entitled to default judgment and/or summary judgment because Respondent failed to file a response to the Petition in a timely manner. [Id. at 2.] As to the claims raised in his Petition, Petitioner contends he has satisfied the relevant standards applicable to habeas petitions and the undisputed facts of the case support his claims for relief. [Id. at 3-8.] However, Petitioner does not provide any argument concerning the merits of his specific claims and instead simply reiterates the applicable standards for default judgment and summary judgment.
Petitioner's arguments are without merit. For the reasons explained above, the undersigned finds that Respondent is entitled to summary judgment on all claims raised in the Petition and that Petitioner is not entitled to summary judgment on any claim. Petitioner has not forecasted any evidence to support his claims, he has not identified any disputed material facts, and he has not cited any law to support his arguments.
Additionally, default judgment is not warranted in this case. Contrary to Petitioner's assertions, the Respondent timely filed a reply to the Petition. As noted, Petitioner commenced this action on March 23, 2021, by filing a Petition for writ of habeas corpus on the standard court form. [Doc. 1.] The Court conducted an initial screening of the Petition and, by Order dated March 30, 2021, instructed Petitioner to bring the case into proper form by paying the applicable filing fee and resubmitting his Petition with his signature because he had failed to sign the original document. [Doc. 5.] Petitioner complied with the Court's Order by filing an application to proceed in forma pauperis, which the Court granted [Doc. 10], and submitting a signed copy of his Petition, which was entered on April 20, 2021 [Doc. 1-2]. On April 22, 2021, the Court entered an Order authorizing service of process and directing Respondent to file a return and memorandum, which was due by June 11, 2021. [Doc. 11.] On June 8, 2021, Respondent filed a motion for extension of time, which the Court granted on June 9, 2021, setting a new deadline for a responsive pleading of July 12, 2021. [Doc. 16.] Then, on July 12, 2021, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 18; 19.] That same day, Respondent filed a certificate of service, noting Respondent served his return and memorandum and motion for summary judgment on Petitioner by placing copies in the United States Mail. [Doc. 18-9.] The parties then filed numerous motions, replies, and responses. Based on this review of the docket, the undersigned concludes that Respondent's responsive pleading was timely filed and Petitioner's argument to the contrary is without merit. Petitioner is not entitled to a default judgment.
Accordingly, for these reasons, Petitioner's motion for default and/or summary judgment should be denied.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Respondent's motion for summary judgment [Doc. 19] be GRANTED and the Petition [Doc. 1] be DENIED and DISMISSED. Further, the undersigned recommends that Petitioner's motion for default/summary judgment [Doc. 22], motion for evidentiary hearing [Doc. 30], motion to strike and/or to vacate [Doc. 36], and motion to appoint counsel, for estoppel, and for an evidentiary hearing [Doc. 41] each be DENIED.
IT IS SO RECOMMENDED.