Opinion
2:22-cv-1294-JD-MGB
01-24-2023
William D. Swaney, Petitioner, v. Jonathan Nance, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
William Swaney, a state prisoner proceeding pro se, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. Nos. 1, 8-1.) This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 18.) Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the petition and submit findings and recommendations to the United States District Judge. For the reasons set forth below, the undersigned RECOMMENDS that Respondent's Motion for Summary Judgment (Dkt. No. 18) be GRANTED.
BACKGROUND
Petitioner is currently housed in the Tyger River Correctional Institution of the South Carolina Department of Corrections. In 1997, an Oconee County Grand Jury indicted Petitioner for murder. (Dkt. No. 17-2 at 79.) Petitioner was represented by Christopher Olsen and James Erwin and his case proceeded to a jury trial before the Honorable Gary E. Clary, Circuit Court Judge. (See generally Dkt. No. 17-1.) The state presented evidence that Petitioner shot and killed his estranged wife, Meshann Swaney. (Id.)
Meshann's parents (Patricia and Bobby Broome) testified at trial. (Dkt. No. 17-1 at 2841.) They testified that they were at their home with Meshann and Meshann's three children on the evening of October 14, 1997. (Id.) Meshann spoke with Petitioner on the phone for approximately five minutes and appeared upset afterwards. (Id.) A few minutes later, Meshann and Mrs. Broome went out on the back porch. (Id.) Shortly after, a car passed by with its lights off. (Id.) Meshann walked into the driveway and saw that Petitioner was walking up the road. (Id.) Petitioner then shot Meshann. (Id.)
Several other witnesses testified, including Seneca Police Department officer, Phillip Bryant. (See generally Dkt. No. 17-1.) He testified that Petitioner showed up at the Seneca Police Department on the evening of October 14, 1997. (Id. at 141-47.) Officer Bryant explained that Petitioner said he thought he had shot his wife. (Id.) Petitioner told Officer Bryant that the gun he used was outside in his car. (Id.) Officer Bryant took Petitioner into a holding room and went outside to Petitioner's car, where he saw a rifle on the front seat. (Id.)
Another Seneca Police Department officer, Theodore Roundy, testified at Petitioner's trial, as well. (Id. at 147-86.) He testified that Petitioner gave a statement to the police. (Id.) Petitioner's statement explained that his wife left him about a month before the shooting. (Id.) Petitioner called her on the evening of October 14, 1997 and asked why she left him. (Id.) When he asked if he would ever see her again, she said that she did not think so. (Id.) Petitioner got in his car and drove to her parents' house. (Id.) He took a rifle from his car and shot her. (Id.) He then went back to his car and drove to the police station. (Id.) Petitioner said he was sorry he shot her. (Id.)
On April 30, 1997, Petitioner was found guilty of murder. (Dkt. No. 17-2 at 76.) That same day, he was sentenced to thirty-five years in prison. (Id. at 519.) Petitioner, represented by Robert M. Dudek, directly appealed his conviction and sentence. (See Dkt. Nos. 17-1, 17-2, 17-3, 17-4, 17-5.) In his direct appeal brief, Petitioner raised the issues of: (1) whether the court erred by refusing to allow a certain witness to testify that Petitioner's wife was having an affair; and (2) whether the court erred by refusing to instruct the jury on the law of voluntary manslaughter. (Dkt. No. 17-3 at 4.) The South Carolina Supreme Court denied and dismissed Petitioner's direct appeal on April 18, 2000. (Dkt. No. 17-5 at 1-2.) The remittitur was issued on May 8, 2000. (Dkt. No. 17-6 at 1.)
Petitioner filed an application for post-conviction relief (“PCR”) in the Court of Common Pleas for Oconee County on January 30, 2001. (Dkt. No. 17-7 at 1.) In this application, Petitioner raised the following grounds (verbatim):
1. Inneffective Assistance of Counsel; A.) Trial counsel was inneffective for failing to adequately present the theory of words and information to provide heat of passion. (B) Trial counsel ineffective for failing to request submission to jury lesser offense of voluntary manslaughter. (C) Trial counsel ineffective for failing to object to trial court's instruction of motive. (D) Trial counsel ineffective for failing to object to bolstering of state's case in closing argument.(Dkt. No. 8-1 at 4.)
The undersigned notes that Petitioner's first application for post-conviction relief is not in the record, but the Final Order of Dismissal, Notice of Appeal, Order dismissing Petitioner's appeal from the denial of his application, and filed Remittitur are in the record. (Dkt. Nos. 17-7, 17-8, 17-9, 17-10.) Petitioner does not contend that the filings related to his first application for post-conviction relief are inaccurate or unreliable. (See generally Dkt. No. 24.)
On August 9, 2004, the Honorable Alexander Macaulay, Circuit Court Judge, held an evidentiary hearing relating to Petitioner's first PCR application. (Dkt. No. 17-7 at 2.) On December 6, 2004, Judge Macaulay denied Petitioner's application and dismissed the action with prejudice. (Id. at 9.) Petitioner filed a notice of appeal. (Dkt. No. 17-8.)The appeal was dismissed on November 1, 2005 for failure to timely serve and file the petition for writ of certiorari and appendix. (Dkt. No. 17-9.) The case was remitted on November 17, 2005. (Dkt. No. 17-10.)
It appears that appellate defender Aileen P. Clare was appointed to represent Petitioner for this appeal. However, she filed a motion to appoint outside counsel due to a conflict of interest. After such motion was granted, the court appointed Petitioner's PCR counsel, Bradley Norton, to represent him. (Dkt. No. 17 at 15.)
On July 5, 2016, over ten years later, Petitioner filed a second application for PCR. (Dkt. No. 17-11.) In this second application, Petitioner raised the following grounds (verbatim):
(1) Ineffective assistance of appellate counsel. (2) The State failed to meet proof. (3) Manslaughter charge required by law. (4) Denial of due process. (5) Lack of proof aliunde.(Dkt. No. 8-1 at 4.) Petitioner later amended his application to also include a sixth ground, “Illegal sentence.” (Id.) After issuing a Conditional Order of Dismissal and allowing Petitioner to respond, the court entered a Final Order of Dismissal denying and dismissing Petitioner's second PCR application with prejudice. (Dkt. Nos. 17-12, 17-13, 17-14.) The Final Order was filed on August 15, 2018 and Petitioner did not appeal it. (Dkt. No. 17-14.)
According to Respondent, Petitioner attempted to file a second notice of appeal from Judge Macaulay's December 2004 dismissal of his first PCR action on February 25, 2020 (over fifteen years later). This appeal was dismissed without prejudice to whatever right Petitioner may have to seek relief under Austin v. State, 305 S.C. 453 (1991).
In March of 2020, Petitioner filed a third PCR application. (Dkt. No. 17-16.) In this third application for PCR, Petitioner raised the following grounds (verbatim):
(10) State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) Ineffective Assistance of Counsel - Trial Counsel
(b) Due Process Violation - Abandoned Appeal - PCR Appellate Counsel
(c) Ineffective of Counsel - Direct Appeal Counsel
(11) State concisely and in the same order the facts which support each of the grounds set out in (10):
(a) Failure to properly argue for a voluntary manslaughter jury instruction; Trial Counsel failed to center argument on inability to form malice as required for murder.
(b) Appellate counsel of representation on PCR appeal abandoned Applicant therefore Applicant was denied an opportunity to seek appellate review of his Application for PCR which was filed on January 30, 2001....
(c) Failure to properly and sufficiently center and pursuit argument on inability to perform malice as required for murder.(Dkt. No. 17-16 at 10.)
The court again issued a Conditional Order of Dismissal and allowed Petitioner a chance to respond. (Dkt. Nos. 17-18, 17-19.) In his response to the Conditional Order, Petitioner amended his third PCR application to include the ineffective assistance of counsel claim upon which this federal habeas petition is based. (Dkt. No. 17-20 at 1.) On February 17, 2022, the court denied and dismissed Petitioner's third PCR application with prejudice. (Dkt. No. 17-26.)
In its Final Order denying and dismissing the application, the court noted that the additional grounds raised in Petitioner's amended application were procedurally barred and failed on the merits. (Id. at 3-4.) The Final Order also explained that Petitioner's third PCR application must be dismissed and denied because it was filed after the statute of limitations had expired, it was improperly successive, it was barred by res judicata and laches (including Petitioner's request for review under Austin v. State, 305 S.C. 453 (1991) of the denial of his first PCR application), and continued litigation by Petitioner frustrated the need for finality of litigation. (Id. at 4-5.)
PROCEDURAL HISTORY
Petitioner filed his pro se habeas petition on April 26, 2022. (Dkt. No. 1.) In his petition, he raises the following grounds for relief (verbatim):
Ground One: Ineffective Assistance of Counsel in Violation of the Fifth, 6th and 14th Amendments
Supporting Facts: S.C. Code § 16-3-20, at the time of Petitioner's conviction used the language of either/or in imposing sentence. Petitioner asserts that 1) a sentence of 30 yrs is the maximum if life is not imposed or 2) any sentence that exceeds such minimum would be parole eligible.(Dkt. No. 8-1 at 5.) On August 19, 2022, the Warden filed a Return and Motion for Summary Judgment. (Dkt. Nos. 17, 18.) Petitioner filed a response in opposition to the Motion for Summary Judgment on October 13, 2022. (Dkt. No. 24.) On October 19, 2022, the Warden filed a reply. (Dkt. No. 25.) Accordingly, the motion is ripe for habeas review.
LEGAL STANDARD
I. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Rule 12, Rules Governing § 2254 Cases (stating courts may apply in habeas cases any of the Federal Rules of Civil Procedure to the extent they are not inconsistent with statutes or the § 2254 rules). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” The News & Observer Publ'g Co., 597 F.3d at 576 (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
II. Habeas Standard of Review
Habeas corpus in federal court exists to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation and internal quotation marks omitted). Federal habeas is neither an alternative to state-court relief nor an additional chance to appeal erroneous state-court rulings. See id. That preference for, and deference to, state courts is borne out in the various constraints placed on federal courts. See Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (stating § 2254 “imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases”); see also Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (stating § 2254 “reflect[s] a presumption that state courts know and follow the law” (citation and internal quotation marks omitted)).
Since the Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding.28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 410. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Federal courts must also defer to state courts' factual determinations, which are presumed correct until the prisoner rebuts that presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
In addition, before state prisoners may try to clear those high hurdles, two rules steer them to first pursue all relief available in the state courts. See 28 U.S.C. § 2254(b)(1). The first, known as exhaustion of remedies, requires a prisoner to present his claims to the highest state court with jurisdiction to decide them. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). A federal court cannot grant a prisoner's habeas corpus petition until he exhausts his state-court remedies. 28 U.S.C. § 2254(b)(1), (c). The second rule, called procedural default, comes into play when a prisoner failed to present a claim to the state courts at the appropriate time and has no means of doing so now. Stewart, 701 F.Supp.2d at 790. Federal courts may not consider a procedurally defaulted claim unless the prisoner shows either that he has cause for defaulting and that the alleged violation of federal law prejudiced him or that not addressing the claim would be a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In considering whether Petitioner should receive habeas relief under these standards, the undersigned has carefully considered the record before the Court.
DISCUSSION
Respondent contends that: (1) Petitioner's petition is barred by the one-year statute of limitations imposed by the AEDPA; (2) Petitioner cannot show he is entitled to equitable tolling; (3) Petitioner's sole ground for habeas relief is procedurally barred; and (4) Petitioner's sole ground for relief-ineffective assistance of counsel for failure to object to Petitioner's sentence-is meritless. (Dkt. No. 17 at 1-2.) In light of the deferential standard set by the AEDPA, the undersigned recommends granting the Warden's Motion for Summary Judgment (Dkt. No. 18).
I. Ground One
A. Statute of Limitations
Pursuant to the AEDPA, a person “in custody pursuant to the judgment of a State court” and who seeks federal habeas relief is subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The one-year period to file a § 2254 petition commences upon the latest of the following dates:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(A)-(D). Because Petitioner did not seek review by the Supreme Court of the United States, the AEDPA's one-year statute of limitations began running at the “conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment of conviction therefore became final “when his time for seeking review with the State's highest court expired.” Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)).
The one-year period to file a § 2254 petition, however, is tolled during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
Even if the limitations period is not tolled under the statute, a § 2254 petition may nevertheless be considered timely if the petitioner can demonstrate that he is entitled to equitable tolling of the limitations period. The Supreme Court recognized that the limitations period may be equitably tolled if the petitioner shows (1) he has been diligently pursuing his rights and (2) some extraordinary circumstance stood in his way, preventing him from timely filing his habeas petition. Holland v. Florida, 560 U.S. 631, 649 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Therefore, “specific circumstances . . . could warrant special treatment in an appropriate case.” Id. at 650. The Fourth Circuit has nevertheless cautioned that the application of equitable tolling should “be guarded and infrequent,” and “reserved for those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
Here, the undersigned recommends granting Respondent's Motion for Summary Judgment because the instant petition is barred by the statute of limitations. Petitioner did not timely file this petition within the one-year limitations period outlined in § 2244(d)(1)(A). Petitioner's direct appeal was dismissed by the South Carolina Supreme Court on April 18, 2000. (Dkt. No. 17-5 at 1-2.) Petitioner then had ninety (90) days to file a Petition for Certiorari to the United States Supreme Court. Thus, the AEDPA's one-year statute of limitations began running after the expiration of those ninety days, July 18, 2000.
On January 30, 2001, Petitioner filed his first PCR application. (Dkt. No. 17-7 at 1.) By that time, approximately six months had run on the AEDPA's statute of limitations. In other words, Petitioner had approximately six months remaining on the statute of limitations clock at the time he filed this first PCR application. The AEDPA statute of limitations was tolled for the pendency of his PCR action and his appeal of its denial. Petitioner's appeal of the denial of his first PCR application was dismissed on November 1, 2005, and the case was remitted back to the circuit court on November 17, 2005. (Dkt. Nos. 17-9, 17-10.) The statute of limitations thus remained tolled until, at the latest, November 21, 2005, when the remittitur was filed.(Dkt. No. 17-10 at 1.) Accordingly, the one-year statute of limitations expired in May of 2006, approximately six months after the remittitur was filed.
“South Carolina district courts have offered varied opinions on whether (1) the decision date, (2) the remittitur date, or (3) the date of receipt of the remittitur controls for purposes of calculating the statute of limitations. Brown v. Warden of Perry Corr. Inst., No. 5:22-cv-352-HMH-KDW, 2022 WL 17559867, at *5 (D.S.C. Nov. 21, 2022), adopted, 2022 WL 17555509 (D.S.C. Dec. 9, 2022) (referencing Smith v. Warden, Lieber Corr. Inst., No. 4:13-3090-BHH, 2014 WL 5503529, at *6 (D.S.C. Oct. 30, 2014); Johnson v. Warden, Lee Corr. Inst., No. 2:14-cv-0768 DCN, 2015 WL 1021115, at *9 (D.S.C. Mar. 9, 2015); Beatty v. Rawski, No. 1:13-cv-3045-MGL-SVH, 2015 WL 1518083, at *2-6 (D.S.C. Mar. 31, 2015). Out of an abundance of caution, the undersigned has used the latest possible date here.
Nonetheless, Petitioner did not file his second PCR application until July 15, 2016, over ten years after the expiration of the statute of limitations. (Dkt. No. 17-11.) Petitioner also filed a third PCR application in March of 2020, which was again well after the statute of limitations had expired. (Dkt. No. 17-16.) This federal habeas petition was filed in April of 2022-nearly eighteen years after the appropriate time to do so. (Dkt. No. 1.) His Petition was therefore untimely.
Further, Petitioner has not established that he is entitled to equitable tolling such that the untimely filing can be excused. He has not shown that he was diligent in pursuing his rights or that some extraordinary circumstance stood in his way, preventing him from timely filing his habeas petition. “[E]quitable tolling is appropriate only when the government's wrongful conduct prevents a petitioner from filing a timely petition or when extraordinary circumstances beyond the petitioner's control make timely filing impossible.” Bogan v. South Carolina, 204 Fed.Appx. 160, 160-61 (4th Cir. 2006).
Petitioner argues that he is entitled to equitable tolling because his appellate PCR counsel failed to “timely serve and file the Petition for Writ of Certiorari and Appendix in this matter.” (Dkt. No. 24 at 3.) Petitioner contends that his appellate PCR counsel, “totally abandoned Petitioner and Petitioner's PCR appeal without explanation” and that because no Johnson petition was filed, he “was not forewarned in any way [that] he would have to proceed pro se.” (Id. at 4.) Petitioner claims that he “articulated that [his] second successive [PCR] application was to address PCR Counsel, and Subsequent PCR Appellate Counsel's failure to properly file an appeal ....” (Id.)
Even construing these allegations in the light most favorable to Petitioner, they do not show that he is entitled to equitable tolling. Indeed, Petitioner did not file his second PCR application until 2016, over ten years after the South Carolina Supreme Court dismissed his appeal for “failure of appellant to timely serve and file the petition for writ of certiorari and appendix ....” (Dkt. No. 17-9 at 1.) Petitioner does not assert that he was unaware of the status of his appeal or its dismissal, nor does he claim that he attempted to contact the court or otherwise inquire about his appeal at any time between 2005 and 2016. (See generally Dkt. No. 24.) Petitioner does not provide the Court with any explanation as to why he waited so long to file his second PCR application. (See generally id.)
Ultimately, the record does not reflect that Petitioner acted with the type of diligence required for equitable tolling. See Smith v. Bodison, No. 2:09-cv-489-HFF-RSC, 2009 WL 2340648, at *8 (D.S.C. July 29, 2009) (“Petitioner's . . . failure to immediately file this action once he discovered the disposition of the PCR appeal, does not display the type of diligence necessary for application of equitable tolling.”); see also Green v. Reynolds, No. 5:15-cv-04867-RMG-KDW, 2016 WL 4411520, at *9 (D.S.C. July 11, 2016), adopted, 2016 WL 4119941 (D.S.C. July 29, 2016) (finding the petitioner was not entitled to equitable tolling because “the unduly long delay in Petitioner's action demonstrates that Petitioner did not diligently pursue his rights” where he waited seven years to take action). The undersigned therefore recommends that equitable tolling is not justified in this instance, and the petition should be dismissed as untimely. See Liburd v. Williams, No. 0:20-cv-1746-SAL-PJG, 2020 WL 6268645, at *3 (D.S.C. Oct. 26, 2020) (concluding the petitioner was not entitled to equitable tolling and noting that “diligence and extraordinary circumstances are both showings required for equitable tolling”).
B. Procedural Default
Petitioner's claims are also procedurally defaulted. Although briefly described above, the undersigned finds a more in-depth summary of the doctrine of procedural default instructive here. Courts often use the word “exhaustion” when defining “procedural default,” but under the law the doctrine of procedural default is separate from the exhaustion requirement in the habeas context. As to exhaustion, 28 U.S.C. § 2254(b)(1) requires that a petitioner exhaust his remedies in state court before a habeas petition may be granted. “In order to exhaust his collateral claims in state court, a South Carolina habeas corpus petitioner must pursue a direct appeal and/or file an application for relief under the South Carolina Post Conviction Procedure Act, SC Code Ann. §§ 17-27-10-160.” Chronister v. South Carolina, C. A. No. 2:08-3194-HMH-RSC, 2009 WL 1444507, at *9 (D.S.C. May 20, 2009). In addition to fully pursuing the remedies available in state court, a petitioner must also have previously presented to the state courts the individual claims he wishes the federal court to review in the habeas action. If he has not properly presented the claim to a state court for adjudication, it is deemed procedurally defaulted. A claim is deemed procedurally defaulted if a state court has rejected it based on an independent and adequate state procedural rule. See Coleman v. Thompson, 501 U.S. 722, 729 (1991) (“The [independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.”). But also, “[i]f claims were not exhausted in state court but would now be procedurally barred if brought in state court, then federal courts can treat the claims as if they were procedurally defaulted in the state courts.” Clagett v. Angelone, 209 F.3d 370, 378 (4th Cir. 2000).
In Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004), the Fourth Circuit explained the policy behind the procedural default doctrine and also described what it means for a claim to have been properly presented to the state court:
[The] exhaustion requirement “reduces friction between the state and federal court systems by avoiding the unseem[liness] of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (internal quotation marks and citation omitted). Thus, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”-which includes “petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” Id. at 845. And this opportunity must be given by fairly presenting to the state court “both the operative facts and the controlling legal principles” associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). In other words, the ground must “be presented face-up and squarely.” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).Longworth, 377 F.3d at 448.
To overcome the procedural default and have a claim considered by the federal habeas court, a petitioner must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
Here, Petitioner did not properly raise Ground One in state court, and he cannot show cause and prejudice, or that failure to consider Ground One will result in a fundamental miscarriage of justice. As noted, Petitioner claims that his trial counsel was ineffective because he did not object to Petitioner's thirty-five year sentence. (Dkt. No. 8-1 at 5.) More specifically, Petitioner alleges that his counsel should have objected because (1) “a sentence of 30 [years] is the maximum if life is not imposed,” and (2) “any sentence that exceeds such minimum would be parole eligible.” (Id.)
At the outset, the undersigned notes that there is no mention of Petitioner's claim relating to parole eligibility anywhere in the state court record. Because Petitioner never presented this claim in state court, it is procedurally defaulted. See Longworth, 377 F.3d at 448.
The remainder of Ground One is also procedurally defaulted. Petitioner raised the claim that his trial counsel was ineffective for failure to object to his thirty-five-year sentence for the first time in an attempted amendment to his third PCR application. (Dkt. No. 17-20 at 1.) In ruling on this application, the PCR court found that it was barred by the state statute of limitations, successiveness, res judicata, laches, and finality of convictions. (Dkt. No. 17-26.) As such, Ground One is procedurally defaulted. See Coleman, 501 U.S. at 729 (“The [independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.”).
As is more fully described in Section I.C. below, Petitioner has also failed to articulate cause and prejudice for the procedural default, or that the failure to consider this claim would result in a fundamental miscarriage of justice. See id. at 750 (“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”). The undersigned therefore recommends that the petition should be dismissed.
C. Merits
Even assuming Ground One was timely and was not procedurally defaulted, Petitioner's claims are meritless. As noted, the PCR court determined that Petitioner's third PCR application was barred by the statute of limitations, successiveness, res judicata, laches, and finality of convictions. (Dkt. No. 17-26.) The PCR court also determined that, even if Petitioner could overcome these bars, Ground One nonetheless lacked merit. (Id.) The PCR court explained:
In his amended application, Applicant raises the following additional grounds for relief (verbatim):
1. “Fifth & Fourteenth Amendment Due Process - sentence violated the allowable sentencing scheme as mandated by the South Carolina Legislature”
a. “Applicant's sentence exceeds the maximum allowable statutory penalty. The sentencing judge sentenced Applicant to a 35 year mandatory minimum sentence. The statute which was applicable to Applicant's crime did not allow a 35 year mandatory sentence, but rather a 30 year mandatory minimum sentence or a life sentence. See Carpenter v South Carolina Department of Corrections, 431 S.C. 512, 848 S.E.2d 346 (2020); State v Johnston, 333 S.C. 459, 510 S.E.2d 423 (1999); cf Chatman v SCDC, 2019 WL5061498."
2. “Sixth Amendment - Ineffective Assistance of Counsel - Plea Counsel's failure to object and challenge the judge's error in sentencing Applicant
in a way which violates the allowable sentencing scheme as mandated by the South Carolina Legislature.”
a. “Applicant's Plea Counsel failed to object to the sentencing judge's error in sentencing Applicant to a sentence which was outside the allowable statutory penalty range for Applicant's crime. The sentencing judge sentenced Applicant to a 35 year mandatory minimum sentence. The statute which was applicable to Applicant's crime did not allow a 35 year mandatory sentence, but rather a 30 year mandatory minimum sentence or a life sentence. Plea Counsel was ineffective in failing to object and challenge this error. See Carpenter v South Carolina Department of Corrections, 431 S.C. 512, 848 S.E.2d 346 (2020); State v Johnston, 333 S.C. 459, 510 S.E.2d 423 (1999); cf Chatman v SCDC, 2019 WL 5061498.”
Even if these allegations were not procedurally barred for the reasons set forth in the conditional order of dismissal, they fail on the merits. Although the Chatman opinion Applicant cites is unpublished, Applicant's claim that his sentence is illegal is incorrect for the same reasons the Court of Appeals outlined in Chatman. Like Chatman, Applicant argues his sentence is illegal because the statutory provision in effect at the time of his crime and sentence provided for either a sentence of thirty years' incarceration or one of life imprisonment. Applicant's interpretation of the applicable statutory provision is incorrect. At the time of Applicant's crime and sentence, the applicable statutory provision read in pertinent part as follows: “A person who is convicted of or pleads guilty to murder must be punished by death, by imprisonment for life, or by a mandatory minimum term of imprisonment for thirty years.” S.C. Code Ann. § 16-3-20(A) (Supp. 1997) (emphasis added) (amended 2010). As the Court noted in Chatman, nothing in this language prohibited the circuit court from sentencing Applicant to a term of imprisonment exceeding thirty years. Therefore, Applicant's sentence is legal and complies with the statute. Applicant further cites specifically to a formal opinion promulgated by the South Carolina Attorney General's Office on June 18, 2019. Even if this opinion could somehow be interpreted as newly-discovered evidence, it is completely irrelevant to Applicant's conviction and sentence. The opinion merely states that a court would likely conclude that the enactment of section 24-13-150(A) is controlling with respect to the mandatory minimum twenty-five year drug trafficking statutes. Applicant was convicted and sentenced for murder. The opinion focuses on the drug statutes only.(Id. at 2-3.)
When habeas claims are considered on the merits in state court proceedings, this Court must apply a highly deferential standard of review. See 28 U.S.C. § 2254(d). The Court may not grant relief unless a state court decision on the merits “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. That is not the case here.
To qualify as “contrary to” United States Supreme Court precedent, a state court decision either must arrive at “a conclusion opposite to that reached by [the United States Supreme] Court on a question of law” or “confront[ ] facts that are materially indistinguishable from a relevant [United States] Supreme Court precedent and arrive[ ] at a result opposite” to the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves an unreasonable application” of United States Supreme Court case law “if the state court identifies the correct governing legal rule from [the United States Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407.
This Court must presume state court findings correct unless clear and convincing evidence rebuts them. 28 U.S.C. § 2254(e)(1). Further, this Court is bound by a state court's interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (noting that “a state court's interpretation of state law . . . binds a federal court sitting in habeas corpus”). Here, the PCR court aptly considered Ground One and provided a reasonable application of the legal issue presented. In doing so, the PCR court rationally interpreted South Carolina's murder statute. The undersigned therefore finds no error in the PCR court's evaluation of the merits of Petitioner's claim. What is more, Petitioner has submitted no meaningful argument as to how the PCR court's determination of Ground One qualifies as legally or factually unreasonable, and such failure precludes relief in this Court. (See generally Dkt. Nos. 8-1, 24.) Accordingly, the undersigned recommends that
Certificate of Appealability
If the Respondent's summary judgment motion is granted, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). The undersigned sees no reason to grant a certificate of appealability and would, therefore, recommend denying the certificate of appealability.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that the Court GRANT Respondent's Motion for Summary Judgment (Dkt. No. 18). The undersigned further RECOMMENDS that the Court DISMISS this case with prejudice and DECLINE to issue a certificate of appealability.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).