Opinion
Civil Action No. 6:20-1892-TMC-KFM
12-22-2020
Kendal Carol Sudduth, Petitioner, v. M. Newton, Respondent.
REPORT OF MAGISTRATE JUDGE
The petitioner, a former state prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.
At the time of the filing of the petition in this case, the petitioner was incarcerated at the Allendale Correctional Institution in the South Carolina Department of Corrections (doc. 1 at 1). On July 13, 2020, he informed the court that he had been released (doc. 10). "The Supreme Court has articulated a presumption that 'a wrongful criminal conviction has continuing collateral consequences,' . . . such that the release from custody of a prisoner who is attacking the validity of a state conviction in a federal habeas petition does not render the petition moot." Perry v. Clarke, 739 F. App'x 199, 200 (4 Cir. 2018) (quoting Spencer v. Kemna, 523 U.S. 1, 8 (1998)).
BACKGROUND
The petitioner was indicted by the Saluda County Grand Jury in July 2013 for criminal sexual conduct with a minor, first degree (2011-GS-41-317A); criminal sexual conduct with a minor, second degree (2011-GS-41-313A); committing or attempting a lewd act upon a child (2013-GS-41-216A); sexual exploitation of a minor, second degree (2013-GS-41-205A); sexual exploitation of a minor, third degree (2013-GS-41-206A); and contributing to the delinquency of a minor (2013-GS-41-217A) (app. 171, 197-202). On July 15, 2013, the petitioner proceeded to trial before the Honorable Michael W. Baxley and a jury (id. at 171-72). The petitioner was represented by Andrew Anderson, Esquire ("Anderson") (id. at 172). The state presented its case over two days of trial, and the petitioner then changed his plea to guilty (id.). The petitioner accepted a plea bargain from the state to the following charges: sexual exploitation of a minor, second degree; sexual exploitation of a minor, third degree; and contributing to the delinquency of a minor (id.). The state dismissed the remaining charges and recommended that the court accept a sentencing cap of 15 years (id.). Judge Baxley accepted the petitioner's pleas of guilty and sentenced him to a total of 15 years, including ten years for sexual exploitation of a minor, second degree, with a consecutive term of five years for sexual exploitation of a minor, third degree, and a concurrent term of three years for contributing to the delinquency of a minor (id. at 203-05).
Underlying Facts
This matter results from the petitioner downloading, receiving, and viewing child pornography and subsequently showing the pornographic images to a minor victim (app. 27-41). On March 15, 2013, the minor victim reported to the police that the petitioner had shown her child pornography and engaged in sexual activity with her while she was under the age of 18, and the police executed a search warrant of the petitioner's home on the same date (id.). The police recovered child pornography on the petitioner's laptop, and the petitioner admitted to the police that he had downloaded child pornography on his laptop (id.). At his guilty plea, the petitioner admitted his guilt on the three charges and apologized to the victim (id. at 8-16, 51).
Direct Appeal
The petitioner did not directly appeal his guilty plea convictions or sentences (doc. 1 at 2).
PCR
On November 18, 2013, the petitioner filed a pro se application for post-conviction relief ("PCR"), raising numerous grounds (doc. 1 at 3; app. 62-73). The respondent filed its return on April 30, 2014, requesting an evidentiary hearing (doc. 22 at 4; app. 74-77). However, the petitioner was appointed Kristy Goldberg, Esquire ("Goldberg") as counsel, and Goldberg filed an amended application for PCR on October 27, 2016 (app. 79-81). In the amended application, the petitioner raised the following five grounds for relief:
(a) Ineffective assistance of trial counsel - counsel [w]as ineffective for failing to object when the Applicant received improper and inadequate notice of the charges he would be facing at trial.(Id. at 79). An evidentiary hearing was held on November 8, 2016, before the Honorable R. Keith Kelly (id. at 82). The petitioner was present at the hearing with Goldberg (id. at 82, 86). The respondent was represented by Johanna Valenzuela of the South Carolina Attorney General's Office (id. at 82).
(b) Ineffective assistance of trial counsel - counsel was ineffective for failing to object pre-trial to the fact that Applicant was charged with and later convicted of Sexual Exploitation of a Minor in the Second Degree and Third Degree.
(c) Ineffective assistance of trial counsel - counsel was ineffective for coercing the Applicant to plead guilty.
(d) Ineffective assistance of trial counsel - counsel was ineffective for failing to adequately prepare to present a defense at trial.
(e) Ineffective assistance of trial counsel - counsel was ineffective for failing to notify Applicant of his right to appeal and failing to file a notice of appeal.
At the PCR hearing, the parties clarified that the claims going forward would be those pursued within the amended PCR application that Goldberg filed on the petitioner's behalf (app. 84-86). The petitioner, Anderson, and Lori Lantz ("Lantz"), the petitioner's ex-wife, testified at the PCR hearing (id. at 87-160). After the hearing, Judge Kelly denied the petitioner's PCR application with prejudice by written order filed on May 7, 2018 (id. at 171-196).
PCR Appeal
The petitioner, represented by Joanna Delany, Esquire ("Delany"), appealed the PCR court's decision by submitting a Johnson petition for writ of certiorari to the South Carolina Supreme Court on November 13, 2018, raising the following issue:
Whether the PCR court erred in finding petitioner's guilty plea was freely, knowingly, and voluntarily tendered where petitioner was in the third day of trial and counsel agreed petitioner was under tremendous pressure as he was only given ten minutes to decide whether he should accept a plea bargain with a cap of fifteen years or face the rest of his natural life in prison, since counsel did not request any additional time to consult with petitioner?(Doc. 22-2 at 3). Delany also filed a petition to be relieved as counsel, as she reviewed the petitioner's PCR hearing and, in her opinion, the petitioner's appeal was without legal merit sufficient to warrant a new trial (id. at 14). The petitioner then filed a pro se response to the Johnson petition, raising the following three issues for consideration:
1. Whether the PCR court erred in finding petitioner's guilty plea was freely, knowingly, and voluntarily tendered where petitioner was in the third day of trial and counsel agreed petitioner was under tremendous pressure as he was only given ten minutes to decide whether he should accept a plea barg[a]in with a cap of fifteen years or face the rest of his natural life in prison, since counsel did not request any additional time to consult the petitioner?(Doc. 22-3 at 2). The appeal was transferred to the South Carolina Court of Appeals and, on October 3, 2019, the Court of Appeals denied certiorari and granted Delany's request to withdraw (doc. 22-4 at 1). The remittitur was issued on October 21, 2019, and filed with the Saluda County Clerk of Court on October 22, 2019 (doc. 22-5 at 1).
2. Whether the PCR court erred in finding petitioner's conviction of 2nd and 3rd degree exploitation of a minor violated the Double Jeopardy Clause.
3. Whether the PCR court erred in finding failed [sic] to challenge the improper charges.
FEDERAL PETITION
On May 14, 2020, the petitioner filed the instant § 2254 petition, raising the following claims for relief:
Ground One: Counsel coerced applicant to plead guilty.(Doc. 1 at 5, 7). On October 22, 2020, after receiving one extension of time, the respondent filed a motion for summary judgment (doc. 23) and a return and memorandum (doc. 22). By order filed October 23, 2020, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately and timely to the motion (doc. 24). The petitioner filed a response in opposition to the motion for summary judgment on November 23, 2020 (doc. 26).
Supporting facts: During trial, counsel made a statement while trying to convince me to plead, saying 'the judge said the jury is gonna find you guilty, you need to plead' pressuring me to take the plea.
Ground Two: Double jeopardy
Supporting facts: Applicant is convicted of the same crime twice. [Exploitation] of a minor 2nd degree and [exploitation] of a minor 3rd degree is for the same files and dates. Counsel also argued but did not move to dismiss one or the other and allowed Applicant to be convicted of the same crime twice. Both indictment read the exact same 'facts.'
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id.
Exhaustion and Timeliness
The respondent concedes that the petitioner has technically exhausted his state remedies and timely filed his federal petition (doc. 22 at 29-30).
Procedural Bar
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief on an issue after he failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion. If a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court has explained:
[State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
"[A] federal court ordinarily may not consider claims that a petitioner failed to raise at the time and in the manner required under state law unless 'the prisoner demonstrates cause for the default and prejudice from the asserted error.'" Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012) (quoting House v. Bell, 547 U.S. 518, 536 (2006)). To show cause, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule," Murray v. Carrier, 477 U.S. 478, 488 (1986), or that "the factual or legal basis for the claim was not reasonably available to the claimant at the time of the state proceeding." Roach v. Angelone, 176 F.3d 210, 222 (4th Cir. 1999). "Alternatively, Petitioner may prove that failure to consider the claims will result in a fundamental miscarriage of justice." McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). A fundamental miscarriage of justice equates to the conviction of someone who is actually innocent. However, "actual innocence" requires "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
Federal Habeas Review
Because the petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or28 U.S.C. § 2254(d). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 410 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision," and "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 101-102 (2011) (citations omitted). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1)
(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.
Ground One
The petitioner's first ground for relief alleges that trial counsel coerced and pressured him to plead guilty by stating "the judge said the jury is gonna find you guilty, you need to plead" (doc. 1 at 5). The respondent argues that the record shows that the petitioner's guilty plea was entered freely, knowingly, and voluntarily (doc. 22 at 37-50).
"It is beyond dispute that a guilty plea must be both knowing and voluntary." Parke v. Raley, 506 U.S. 20, 28 (1992); see also Boykin v. Alabama, 395 U.S. 238, 242 (1969) (A guilty plea should only be accepted where the record evidences "an affirmative showing that it was intelligent and voluntary.").
When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [incompetent].Tollett v. Henderson, 411 U.S. 258, 267 (1973); see Hill v. Lockhart, 474 U.S. 52, 56 (1985) (noting that when "a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." (internal citation and quotation marks omitted)). Because a guilty plea is a solemn, judicial admission of the truth of the charges against someone, a criminal defendant's right to contest the validity of such a plea is usually foreclosed. Blackledge v. Allison, 431 U.S. 63, 74-75 (1977). As such, statements made during a guilty plea are considered conclusive unless a criminal defendant presents reasons why he should be allowed to depart from the truth of his statements. Crawford v. United States, 519 F.2d 347, 350 (4th Cir. 1975), overruled on other grounds by United States v. Whitley, 759 F.2d 327 (4th Cir. 1985).
At the PCR hearing, the petitioner testified that he "felt like [he] was under duress to take the plea" because Anderson "made the comment that the judge said the jury is gonna find [him] guilty, [he] better take a plea" and when the petitioner told Anderson no, Anderson "asked the judge to hold on a minute and then [Anderson] sat there and kept talking to [the petitioner] and finally [Anderson] got [him] to take the plea" (app. 92). The petitioner testified that he recalled the judge talking about the charges that he was facing and the judge informing him of the 15-year sentencing cap (id. at 109). The petitioner confirmed that the court informed him of the constitutional rights he was waiving by pleading guilty, he told the court that he understood, and he waived those constitutional rights (id. at 112-13). The petitioner also recognized that he was receiving a benefit from the state since the state dismissed the more serious charges against him and the charges he was pleading guilty to carried only a maximum sentence of 23 years (id. at 109-10). The petitioner further testified that, despite his previous sworn testimony that he was guilty of the crimes at issue, he is actually not guilty and he "did what [he] was coerced to do" (id. at 111-12). Moreover, the petitioner testified that at the time of the guilty plea, he was satisfied with his attorney (id. at 113-14). The petitioner also stated that despite his understanding that he swore to tell the truth at trial, he "felt like [he] had to answer the questions that was presented with what they wanted to hear" (id. at 114). Further, the petitioner testified that he was telling the truth at the time of the PCR hearing, not during his guilty plea (id. at 111-12). Additionally, the petitioner testified that he apologized to the victim "because [his] attorney told him to do it" (id. at 117). The petitioner also stated that he "felt like [he] wasn't in the right state of mind at the time" of the guilty plea because he "was scared" (id. at 122).
Lantz, the petitioner's ex-wife, then testified at the PCR hearing and noted that Anderson essentially told the petitioner that "it's not looking good, we probably need to think about taking this plea bargain, the jury's gonna find you guilty" (app. 127). Lantz also testified that Anderson was just "strongly encouraging the guilty plea" (id.).
Anderson then testified at the PCR hearing and noted that he was prepared for trial (app. 147). Anderson testified that the petitioner had previously been offered a plea deal with a sentence maximum of three years and that he "talk[ed] about it hard" with the petitioner, but that the petitioner declined to plead guilty at that time (id. at 147-48). Anderson also testified that he did not believe he coerced the petitioner into taking the guilty plea but that he did recommend that the petitioner take it because he "thought it was going bad" and "the judge certainly thought we were guilty" (id. at 150). Moreover, Anderson testified that it was the petitioner's decision to plead guilty (id. at 151).
The PCR court found in its written order that the petitioner pleaded guilty freely, knowingly, and voluntarily (app. 187). The PCR court found that Anderson's testimony about his preparation and advice concerning the charges, the plea offers rendered by the state, the petitioner's rejection of a more favorable plea deal, and the petitioner's acceptance of the plea deal entered after the state had presented a large part of its case at trial was "very credible" and supported by the record (id. at 187-88). The PCR court also noted that Anderson addressed with the petitioner the elements of the charges, the benefits of accepting the plea bargain, and the rights waived by deciding to enter the plea (id. at 188).
In addition, the PCR court found that the petitioner's testimony on this issue was "not credible" (app. 188). Instead, the PCR court noted that the petitioner was aware of the benefit received from accepting the plea deal, the petitioner recalled accepting the guilty plea in front of the judge by engaging in the plea colloquy, the petitioner agreed to the sentencing cap of 15 years, and Lantz testified that she witnessed the petitioner and Anderson's consideration of the guilty plea and believed that counsel was only "strongly encouraging" the petitioner (id.). Further, the PCR court noted that the plea court specifically reviewed the potential sentences with the petitioner and that he was accepting the 15-year cap; the petitioner responded that he understood, wished to plead guilty, and that he was making the plea without the influence of drugs, alcohol, or medication; the plea court advised the petitioner of the waiver of his constitutional rights; the petitioner stated on three occasions that the decision to plead was his own and that no one forced him to do so; and the petitioner stated that he changed his plea to guilty because it was "just not looking good" and he had "done the math and it d[idn't] add up," so the plea offer was "the best thing" (id.). Therefore, the PCR court concluded that the petitioner "failed to meet his burden in proving he pled guilty involuntarily and unknowingly" because the record reflects that he "admitted his guilt to the plea court after being fully informed of the nature and consequences of his plea by his attorney and by the plea court[,]" the petitioner "entered the plea on his own accord" while acknowledging the wavier of certain constitutional rights, and the petitioner "cannot prove prejudice" (id. at 189).
The undersigned finds that the PCR court's rejection of the involuntary guilty plea based upon pressure by counsel ground for relief was not "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . 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). The PCR court found that in light of the guilty plea transcript and the testimony by plea counsel (despite testimony by the petitioner found to be not-credible) that the plea was freely, voluntarily, and knowingly made. The PCR court's factual determinations regarding credibility are entitled to deference. See id. § 2244(e)(1). Moreover, despite the petitioner's arguments regarding Anderson coercing him to plead guilty, the record does not support the petitioner's assertions. As such, the petitioner has failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding his involuntary guilty plea/ineffective assistance of counsel claim, and the respondent is entitled to summary judgment. Based upon the foregoing, summary judgment should be granted to the respondent on Ground One.
Ground Two
In his second ground for relief, the petitioner argues that he was convicted of the same crime twice in violation of the double jeopardy clause, through his convictions of exploitation of a minor, second degree, and exploitation of a minor, third degree (doc. 1 at 7). The petitioner further asserts that his counsel "argued but did not move to dismiss one or the other and allowed Applicant to be convicted of the same crime twice" (id.). The respondent contends that this ground is a free-standing claim that is procedurally barred (doc. 22 at 30-31). However, based on the petition, it is unclear if the petitioner is asserting a free-standing claim or an ineffective assistance of counsel claim. Therefore, out of an abundance of caution and liberally construing the petitioner's pro se petition, the undersigned will address this ground as both a free-standing claim and an ineffective assistance of counsel claim.
To the extent that the petitioner is asserting a free-standing claim, the undersigned agrees with the respondent that the claim is procedurally barred. In South Carolina, because PCR solely involves claims of ineffective assistance of counsel, the petitioner was required to pursue this free-standing claim at trial and on direct appeal to preserve it for federal habeas review. See Tompkins v. Warden, C/A No. 4:15-cv-4340-DCN-TER, 2016 WL 9000459, at *8 (D.S.C. Aug. 24, 2016) (finding that a petitioner's free-standing constitutional claim was procedurally barred because it was not presented to a state court and noting that "[a] federal court's habeas review focuses on the state court decision that already addressed the claims, not the petitioner's free-standing claims themselves."), R&R adopted by 2016 WL 9019650 (D.S.C. Sept. 14, 2016); Stogner v. Pate, C/A No. 1:12-2432-TMC-SVH, 2013 WL 1635565, at *7 (D.S.C. Feb. 27, 2013) (finding that two claims were procedurally barred from habeas review and noting that "to preserve such freestanding claims, Petitioner would have had to assert them at the trial level and pursue them on direct appeal."), R&R adopted by 2013 WL 1635564 (D.S.C. Apr. 16, 2013); Stephenson v. Taylor, C/A No. 0:06-816-RBH, 2007 WL 1068247, at *2 (D.S.C. Mar. 30, 2007) (finding that a free-standing claim was procedurally barred and noting that the claim "was an issue that should have been raised on direct appeal and could not be raised on PCR except as to ineffective assistance of counsel."). Here, while the petitioner raised the issue of ineffective assistance of counsel regarding a double jeopardy violation in his amended application for PCR and his pro se response to his PCR appeal, he failed to present the free-standing claim in state court (app. 79; doc. 22-3 at 2). The petitioner did not raise this issue before the trial court, pled guilty to both charges, and failed to file a direct appeal (doc. 1 at 7; app. 8-16, 96). Thus, the petitioner's free-standing claim is procedurally barred from federal habeas review absent a showing of cause for the default and actual prejudice or actual innocence. See Coleman, 501 U.S. at 750.
The petitioner has not shown cause and prejudice or actual innocence. If a respondent raises the affirmative defense of procedural default, it is the petitioner's burden to then show cause and prejudice or actual innocence; if not raised by the petitioner, the court need not consider the defaulted claim. Gray v. Netherland, 518 U.S. 152, 165-66 (1996); Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995). The Fourth Circuit Court of Appeals has observed that although it is always tempting to discuss the merits as an alternative reason for a conclusion, once a court finds an issue to be procedurally barred, all discussion that follows is only dicta. Karsten v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., 36 F.3d 8, 11 (4th Cir. 1993). Here, the respondent raised the affirmative defense of procedural default, and the petitioner failed to provide any assertions of cause and prejudice or actual innocence in his response to the motion for summary judgment (see generally doc. 26). Instead, the petitioner merely argues the merits of his free-standing double jeopardy claim (id. at 1-2). Therefore, procedural bar applies to the petitioner's free-standing claim.
However, to the extent that the petitioner is asserting an ineffective assistance of counsel claim, the undersigned finds that the petitioner's claim is not procedurally barred because the petitioner raised the issue in his amended application for PCR and pro se response to his PCR appeal. To be entitled to relief on an ineffective assistance of counsel claim, a petitioner must show that (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's error, the result of that proceeding would have been different. Strickland v. Washington, 466 U.S.668, 687-94 (1984). Strickland does not guarantee perfect representation, only a "'reasonably competent attorney.'" Id. at 687 (quoting McMann v. Richardson, 397 U.S. 759, 770, 771 (1970)). There is a strong presumption, however, that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case. Id. at 690.
The review of ineffective assistance of counsel claims in federal habeas is not simply a new review of the merits; rather, habeas review is centered upon whether the state court decision was reasonable. See 28 U.S.C. § 2254(d). Additionally, each step in the review process requires deference—deference to counsel and deference to the state court that previously reviewed counsel's actions:
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both "highly deferential," and when the two apply in tandem, review is
"doubly" so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.Harrington, 562 U.S. at 105 (internal citations omitted). In order to satisfy the prejudice requirement of Strickland following a guilty plea, a petitioner who alleges ineffective assistance of counsel must show that "there is a reasonable probability that, but for counsel's errors, he would not have [pled] guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985) (footnote omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The petitioner asserts that Anderson "did not move to dismiss" either of the charges at issue and "allowed Applicant to be convicted of the same crime twice" (doc. 1 at 7). At the PCR hearing, the petitioner testified that Anderson expressed a belief that the charges for second and third degree sexual exploitation of a minor constituted double jeopardy but that Anderson never presented this argument to the trial court (app. 96). During the petitioner's guilty plea, Anderson stated that he believed that there was a "high likelihood" that the petitioner would be found guilty of the charges had the trial proceeded to a jury but that he "was going to make an argument to [the court] that he couldn't be convicted of both statutes for the same items . . ." (id. at 7). Anderson testified at the PCR hearing that he considered arguing an interpretation of the statute that would bar prosecution for both second and third degree exploitation of a minor when the underlying facts concern distribution of child porn through an online peer-to-peer sharing system (id. at 158-59).
In light of the testimony and record before it, the PCR court found that the petitioner failed to meet either prong under Strickland and that "counsel exercised a reasonable professional decision in choosing not to pursue this argument in light of Applicant's decision to plead guilty because counsel could not prevail in his argument" (app. 185-86). The PCR court also indicated that Anderson testified "credibly" (id. at 185).
The PCR court's rejection of the petitioner's ineffective assistance of counsel ground for relief was not based on an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States or an unreasonable determination of the facts in light of the evidence available to the state court. 28 U.S.C. § 2254(d). The PCR court's factual determinations regarding credibility are entitled to deference, and there is a presumption of correctness that attaches to state court factual findings. See id. § 2244(e)(1); Cagle v. Branker, 520 F.3d 320, 324-25 (4th Cir. 2008).
The PCR court correctly noted that the Double Jeopardy Clause of the United States Constitution "protects only against the imposition of multiple criminal punishments for the same offense" (app. 185) (citing Hudson v. United States, 522 U.S. 93, 99 (1997) (emphasis in original)). The PCR court also noted: "'Under traditional double jeopardy analysis, multiple punishment is not prohibited where each offense calls for proof of a fact that the other does not'" (id.) (quoting State v. Cuccia, 578 S.E.2d 45, 49 (S.C. Ct. App. 2003); Blockburger v. United States, 284 U.S. 299 (1932)). Further, the court noted that "'[a] mere overlap in proof does not constitute a double jeopardy violation'" (id.) (quoting Cuccia, 578 S.E.2d at 438).
As pointed out by the PCR court, the petitioner's indictment for sexual exploitation of a minor, third degree, provided:
that he did unlawfully and while knowing the character or content of the material, did possess material that contained a visual representation of a minor engaging in sexual activity, to wit: photograph(s) and/or digital image(s) and/or digital electronic file(s) and/or film(s) of a minor child engaged in sexual activity and/or a visual representation of a minor child engaged in sexual activity as defined in Section 16-15-375(5), in violation of S.C. Code of Laws Section 16-15-410, 1976, as amended.(App. 186, 200). Moreover, the petitioner's indictment for sexual exploitation of a minor, second degree, provided:
that he did unlawfully and while knowing the character or content of the material, (1) record, photograph, film, develop, duplicate, produce, or create digital electronic file material that contains a visual representation of a minor engaged in sexual activity; or (2) distribute, transport, exhibit, receive, sell, purchase, exchange, or solicit material that contains a visual representation of a minor engaged in sexual activity, to wit: did duplicate, create, solicit or receive a photograph or digital image or digital electronic file(s) or film of a minor engaged in sexual activity as defined in Section 16-15-375(5), in violation of South Carolina Code of Laws Section 16-15-405, 1976, as amended.(Id. at 186, 202). Thus, the PCR court reasonably found that "[b]ecause a mere overlap in proof cannot constitute double jeopardy and because each charge contains elements that the other does not," the petitioner's counsel was not ineffective for failing to raise the double jeopardy argument (id. at 186). Further, the PCR reasonably found that the petitioner was not prejudiced because there existed no reasonable probability that the result of the proceeding would have been different had counsel raised the argument (id.).
As such, in light of the support in the record for the PCR court's finding that the petitioner failed to meet the first and second prongs of Strickland with respect to his ineffective assistance of counsel claim, the undersigned recommends granting the respondent's motion for summary judgment as to Ground Two.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the court recommends that the respondent's motion for summary judgment (doc. 23) be granted.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge December 22, 2020
Greenville, South Carolina
The petitioner's 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
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).