Opinion
C. A. 5:20-3834-HMH-KDW
12-06-2021
Jamaad D. Thomas, Petitioner, v. Warden of Broad River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West, Florence, South Carolina United States Magistrate Judge.
Jamaad D. Thomas (“Petitioner”) is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 56, 57. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by June 4, 2021. ECF No. 58. Petitioner filed a response on June 9, 2021, ECF No. 62, to which Respondent filed a reply on June 16, 2021. ECF No. 63.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
Petitioner was indicted by the Florence County grand jury in July 2012 for murder. App. 113-14. On April 11, 2014, Petitioner appeared before the Honorable D. Craig Brown for a plea 1 hearing. App. 1-47. Petitioner was represented by Attorney Joshua Bailey and Solicitor Ed Clements appeared on behalf of the State. Id. According to the facts presented by the solicitor, victim Jessie Brower (“Brower”) was shot in the head on his porch. App. 13. Petitioner and some of his friends were seen riding their bicycles in the vicinity of Brower's house and after the shooting, Petitioner told several individuals that he shot “Little Jessie.” App. 14-15. The solicitor also explained that one of Petitioner's co-defendants admitted to killing Brower and subsequently wrote a letter to the investigator admitting to the shooting. App. 15. After the solicitor recited the facts of the case, Petitioner informed Judge Brown that he did not believe a jury would convict him based on these facts, and therefore, he wanted to go to trial. App. 17. The proceedings were stopped, and approximately two hours later, Petitioner again appeared before Judge Brown and notified him that he wanted to proceed with his plea. App. 19-25. Petitioner entered an Alford plea to voluntary manslaughter and Judge Brown sentenced Petitioner to 28 years imprisonment. App. 24-25, 47. Petitioner did not file a direct appeal. ECF No. 1 at 2.
ECF No. 56-1
Petitioner filed an application for post-conviction relief (“PCR”) on March 9, 2015, in which he alleged he was being held unlawfully due to Brady violations, ineffective assistance of counsel, and violation of his due process rights. App. 49-55. The State filed a return on January 19, 2017. App. 56-62. A PCR evidentiary hearing was held before the Honorable Thomas A. Russo, Circuit Court Judge, on August 31, 2017, at which Petitioner and his counsel, Joshua Bailey, Esq., appeared. App. 64-101. On January 29, 2018, Judge Russo filed an order dismissing Petitioner's PCR application with prejudice, making the following findings of fact and conclusions of law:
This Court has had the opportunity to review the record in its entirety and has heard the testimony and arguments presented at the PCR hearing. This Court has further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon their credibility. This Court has weighed the testimony2
accordingly. Set forth below are the relevant findings of fact and conclusion of law as required by S.C. Code Ann. Sec. 17-27-80 (2003).
Brady Violation
This Court finds Applicant failed to present any testimony, argument, or evidence at the hearing regarding the allegation in his application that the State violated the disclosure rules of the SCRCRP Rule 5 or Brady.1 Instead, it appears Applicant's contention is Counsel did not fully and appropriately share discovery with Applicant, such that his guilty plea was rendered involuntary. That allegation is addressed below. This Court deems the allegation regarding a Brady violation to be abandoned, and the allegation is dismissed.
Ineffective Assistance of Counsel/Involuntary Guilty Plea
In a PCR action, the applicant bears the burden of proving the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Id. at 443, 334 S.E.2d at 814. The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. The courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. 668, 689 (1984). Applicant must overcome this presumption in order to receive relief. Cherry v. State, 300 S.C. 115, 118, 386 S.E.2d 624, 625 (1989).
The reviewing court applies a two-pronged test in evaluating allegations of ineffective assistance of trial counsel. Id. at 117, 386 S.E.2d at 625. First, the applicant must prove that counsel's performance was deficient. Id. Under this prong the court measures an attorney's performance by its ‘‘reasonableness under professional norms.” Id. (quoting Strickland, 466 U.S. at 688). Second, counsel's deficient performance must have prejudiced the applicant such that ‘‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. With respect to guilty plea counsel, Applicant must show that there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 (1985).
1 Brady v. Maryland, 373 U.S. 83 (1963).3
In PCR cases, an applicant asserting a constitutional violation must frame the issue as one of ineffective assistance of counsel. Al-Shabazz v. State, 338 S.C. 354, 36364, 527 S.E.2d 742, 747 (2000) (citations omitted). An applicant alleging his guilty plea was induced by ineffective assistance of counsel must prove counsel's advice was not “within the range of competence demanded of attorneys in criminal cases.” Lockhart, 474 U.S. at 56. Further, “[t]hat a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing.” McMann v. Richardson, 397 U.S. 759, 770 (1970). Rather, “whether a plea of guilty is unintelligent ... depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.” Id. at 771.
The record must establish the defendant had a full understanding of the consequences of his plea and the charges against him. Dalton v. State, 376 S.C. 130, 138, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). A defendant's knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and ‘‘may be accomplished by colloquy between the court and defendant, between the court and defendant's counsel, or both.” Roddy v. State, 339 S.C. 29, 34, 528 S.E.2d 418, 421 (2000) (citing State v. Ray, 310 S.C. 431, 437, 427 S.E.2d 171, 174 (1993)). Further, “[a] guilty plea is a solemn, judicial admission of the truth of the charges” against the applicant; thus, an applicant's right to contest the validity of such a plea is usually foreclosed. Dalton, at 137-38, 654 S.E.2d at 874 (citing Blackledge v. Allison, 431 U.S. 63 (1977)). Therefore, admissions “made during a guilty plea should be considered conclusive unless [an applicant] presents valid reasons why he should be allowed to depart from the truth of his statements.” Id. (citing Crawford v United States, 519 F.2d 347 (4th Cir. 1975); Edmonds v. Lewis, 546 F.2d 566 (4th Cir. 1976)). Additionally, “the transcript of the guilty plea hearing will be considered to determine whether any possible error by counsel was cured by the information conveyed at the plea hearing.” Id. at 138-39, 654 S.E.2d at 874 (citing Wolfe v. State, 326 S.C. 158, 165, 485 S.E.2d 367, 370 (1997)).
Applicant testified he was arrested for murder, and Counsel was appointed to represent him. Applicant testified he met with Counsel a short time later, and they discussed the charges, possible sentences, and evidence against him. Applicant testified he did not discuss possible defenses with Counsel, and he was not sure if he had any viable defense. Applicant testified he gave one name of a potential witness to Counsel, and he believed Counsel's investigator talked to that person. Applicant testified there were several videotaped witness statements he never reviewed or received a transcript for, although Counsel watched the tapes, and they discussed the contents.
Applicant testified he told Counsel he wanted a trial every time they met, and he also told the judge he wanted a trial rather than to continue with a guilty plea. Applicant testified the judge allowed him to take a break to confer with Counsel4
about how to proceed, and the Solicitor was also involved in the meeting. Applicant testified he ultimately pleaded guilty because of the statements he had not seen. Applicant testified he could have made a better decision about whether to plead guilty or proceed with a trial if he had seen the statements, but he was not certain he would have changed his mind and gone to trial. Applicant further testified he still had not seen the statements, though he had requested them from Counsel. Applicant testified his decision would depend on the content of the statements. However, Applicant acknowledged on cross-examination, after the break to confer with Counsel, he never informed the plea judge he had not seen the statements, and instead averred he was satisfied with Counsel and did not have any more questions.
Counsel testified he did not recall the specific number of meetings he had with Applicant, but his practice is to have the initial meeting within thirty days. Counsel testified he generally meets with his clients once a month or once every two months, with longer and more frequent meetings as trial approaches. Counsel testified he usually does not have discovery available at the first meeting, but he sends it to the client as it is received.
Counsel testified there were a significant number of witnesses in the case, mostly people who had seen Applicant and his codefendant in the neighborhood and several witnesses who were inside the house where the shooting took place. Counsel testified the witnesses could place Applicant at various points around the neighborhood both to and from the shooting location. Counsel further testified he went over every statement with Applicant, although he did not have the ability to play the videos for Applicant in jail. Counsel testified some of the statements had been transcribed by the Solicitor's Office, which he received in discovery, and he reviewed the remaining interviews and decided not to have them transcribed. Counsel also testified he took detailed notes of the non-transcribed interviews and went over them with Applicant to determine if Applicant knew the witnesses or had any information to offer in response to the statements. Counsel testified, in total, he received one CD with eight statements, one CD with five statements, and one CD containing Applicant's statement; he estimated he received three to four transcripts.
Counsel testified that at first Applicant wanted to plead guilty, later decided he wanted a trial, then changed back to wanting to plead guilty. Counsel testified that when they arrived for the guilty plea, Applicant was given the choice to plead guilty that day or begin trial the following Monday. Counsel testified he was prepared for trial. Counsel testified he had not uncovered anything in his review of the discovery that would lead him to call defense witnesses, but he had prepared questions for cross-examination of all of the State's witnesses.
Counsel also testified, in the days leading up to trial, Applicant indicated he would accept an offer of ten years, but Solicitor Clements would not agree. Counsel testified he instead negotiated a reduced charge of voluntary manslaughter with no sentencing recommendation so the defense could argue for whatever they felt was appropriate. Counsel testified the State's theory was the shooting was done as part5
of a gang initiation, and the Solicitor was really after the gang leaders, but Applicant would not cooperate. Counsel testified it was Applicant's decision to proceed with the guilty plea. Counsel testified he advised Applicant a conviction was likely at trial, but the ultimate decision was up to Applicant. Counsel testified that although he felt he could attack some points in the State's case, mitigation was difficult because there was no way to get around the fact that two kids on bikes had done the shooting, and Applicant had been identified as one of them.
Counsel testified Applicant requested a trial during the guilty plea colloquy, and they were able to take a break to meet with applicant and his family before resuming the plea. Counsel testified the Solicitor was only present to see what Applicant's decision was, and he did not participate in the meeting. Counsel testified Applicant wanted to talk to his family and was able to do so. Counsel also testified he fully explained the plea, including the import of Alford.
Regarding Applicant's claim that his guilty plea was induced by ineffective assistance of counsel, this Court finds Applicant has failed to meet his burden of proof. This Court finds Applicant's testimony regarding Counsel's ineffectiveness was not credible, while also finding Counsel's testimony is credible. This Court finds Counsel provided effective assistance in this case and Applicant's decision to plead guilty was made freely and voluntarily. Counsel conferred with Applicant on multiple occasions, during which Counsel discussed the pending charges, the State's evidence, possible defenses and courses of action, and answered all of Applicant's questions. Additionally, Counsel conveyed the State's plea offer to Applicant, who had ample time to confer with Counsel and his family before making a decision. This Court further finds credible Counsel's testimony that he discussed all witness statements with Applicant and made Applicant aware of the contents of those statements, even if Applicant did not personally view the videos. See, e.g., Hyman v. State, 397 U.S. 35, 723 S.E.2d 375 (2012) (finding defense counsel was not deficient, nor was defendant prejudiced, where the State allowed defense counsel to view a videotape of the controlled drug buy prior to the plea, but refused to allow defendant himself to watch it). Further, Applicant testified he could not say for certain if viewing the videos would have changed his decision to plead guilty.
This Court finds the record reflects Applicant's plea was entered freely, voluntarily, knowingly, and intelligently. Applicant was aware there were witness statements he had not seen when he entered his guilty plea, and the plea waived his right to challenge those statements. Additionally, this Court finds Applicant was not subject to any time constraints, as his trial would not have started until the following week. The plea judge explained the charge to Applicant, including the maximum penalty. Tr. pp. 7, 19. The plea judge also went through Applicant's constitutional rights multiple times and questioned Applicant as to whether he understood those rights and wished to give them up to plead guilty. Tr. pp 9-10, 20-21. Applicant agreed that he did. Tr. p. 21. Importantly, even after stopping his guilty plea to reconsider, Applicant told the plea judge he was satisfied with his attorney, that Counsel had6
done everything Applicant had asked of him, and he did not need any more time to discuss this matter with Counsel. Tr. pp. 21-22. Applicant further told the plea judge no one had threatened him or made him any promises to get him to plead guilty, and he was doing so of his own accord. Tr. pp. 22-23. This Court therefore finds Applicant understood the terms of the plea and entered into it freely and voluntarily.
Therefore, this Court finds Applicant has failed to prove the first prong of the Strickland test - that Counsel failed to render reasonably effective assistance under prevailing professional norms. Applicant failed to present compelling evidence that Counsel committed either errors or omissions in his representation of Applicant.
This Court also finds Applicant has failed to prove the second prong of Strickland - that he was prejudiced by Counsel's performance. This Court also finds that the record fully supports the knowing and voluntary nature of Applicant's guilty plea. See Roddy v. State, 339 S.C. 29, 34, 528 S.E.2d 418, 421 (2000) (holding defendant's knowing and voluntary waiver of statutory or constitutional rights in a guilty plea “must be established by a complete record, and may be accomplished by colloquy between court and defendant, between court and defendant's counsel, or both.”). In addition, Applicant has presented no evidence or valid reasons why he should be allowed to depart the truth of his statements made at the plea. See Dalton, 376 S.C. at 137, 654 S.E.2d at 874 (“[Admissions] made during a guilty plea should be considered conclusive unless [an applicant] presents valid reason why he should be allowed to depart from the truth of his statements.). This Court concludes Applicant has not met his burden of proving Counsel failed to render reasonably effective assistance such that his guilty plea was rendered involuntary. The allegation is hereby denied and dismissed.
CONCLUSION
Based on all the forgoing, this Court finds and concludes Applicant has not established any constitutional violations or deprivations before or during his plea and sentencing proceedings. Counsel was not deficient nor was Applicant prejudiced by Counsel's representation. Therefore, this PCR application must be denied and dismissed with prejudice.App. 104-12.
Petitioner appealed from the denial of PCR. Deputy Chief Appellate Defender Wanda H. Carter of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. ECF No. 56-2. Attorney Carter filed a Johnson petition for writ 7 of certiorari in the South Carolina Supreme Court on November 19, 2018, raising the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors of Anders v. California, 386 U.S. 738 (1967), to post-conviction appeals). Anders requires that counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
The PCR judge erred in denying petitioner's allegation that his plea was not given voluntarily because counsel failed to reveal all of the state's evidence against him and therefore his decision to plead guilty was not an informed decision.Id. at 3. Petitioner's counsel asserted the petition was without legal merit and requested permission to withdraw from further representation. Id. at 9.
On or about March 18, 2019, Petitioner filed a pro se brief in which he raised the following issues:
(1) The PCR judge erred in denying Petitioner's allegation that his guilty plea was induced by ineffective assistance of counsel.
(2) The PCR judge erred in that the record reflects Petitioner's plea was entered freely, voluntarily, knowingly, and intelligently.ECF No. 56-4 at 2.
The South Carolina Supreme Court transferred Petitioner's appeal to the Court of Appeals, and on September 18, 2020, the Court of Appeals denied the petition for certiorari and granted counsel's request to withdraw. ECF No. 56-7. The remittitur was issued on October 14, 2020. ECF No. 58-8.
Petitioner filed this federal petition for a writ of habeas corpus on November 2, 2020. ECF No. 1. 8
II. Discussion
A. Federal Habeas Issues
Petitioner states the following ground in his petition:
Ground One: Involuntary plea
Supporting Facts: The PCR judge erred in denying allegation that my plea was not given voluntarily because counsel failed to reveal all the state's evidence against me and therefore my decision to pled guilty was not an informed decision.
Ground Two: Ineffective Assistance of Counsel in Investigation, preparation
Supporting Facts: The PCR judge erred in denying allegation that guilty plea was induce by ineffective assistance of counsel because I (Petitioner) and counsel was “unaware” of witness statements he had not knowledge of when guilty plea was entered Defense counsel made not efforts to investigate newly discovered evidence for preparation. The PCR judge erred in giving counsel testimony credibility the he discussed all that witness statements with I (Petitioner) and made I (Petitioner) aware of the contents of these statements.ECF No. 1 at 5-7 (errors in original).
B. Standard for Summary Judgment
Summary judgment is appropriate “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). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing 9 law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the 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 at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see 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.” Id. at 410. 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. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 10 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 in a similar manner 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.
a. 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 the11
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. 28 U.S.C. § 2254(b)(1)(A). 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 be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR in the South Carolina courts. A PCR 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.
In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007, decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
The United States Supreme Court has held that “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 12 when that review is part of the ordinary appellate review procedure in the State.” O 'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). 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)). That is to say, 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).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court “outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan.” 559 S.E.2d at 854. As such, it is an “extraordinary” remedy under O'Sullivan, “technically available to the litigant but not required to be exhausted, ” Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the South Carolina Court of Appeals without more is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the South Carolina Court of Appeals.
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the 13 doctrine applied when a petitioner who seeks habeas corpus relief as to an issue 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.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, 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 explains:
. . . [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).
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 v. Murray, 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), superseded by 14 statute on other grounds (AEDPA).
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. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts in limited circumstances in which 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 that a “fundamental miscarriage of justice” has occurred. Murray, 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 which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of “cause, ” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. 15
D. Analysis
1. Procedurally-Barred Grounds
Respondent argues the portion of Petitioner's Ground Two argument where he contends his counsel was ineffective because he failed to review and investigate all the witness statements in his case is procedurally defaulted. ECF No. 56 at 10-11. The undersigned agrees as these claims were not ruled upon by the South Carolina appellate courts and therefore are not preserved for review. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (holding issue not properly raised to state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas); Pruitt v. State, 423 S.E.2d 127 (S.C. 1992) (holding issue must be raised to and ruled on by the PCR judge in order to be preserved for review); SCRCP 59(e) (providing avenue for any party to move to alter or amend a judgment). Consequently, federal habeas review of the Petitioner's Ground Two claims concerning counsel's failure to review and investigate certain witness statements are barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Matthews v. Evatt, supra.
2. Cause and Prejudice
Petitioner has not shown sufficient cause and prejudice to excuse the default of a portion of his Ground Two claims. 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 claim 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 existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's 16 procedural rule. Murray, 477 U.S. at 488. Petitioner fails to articulate cause for procedurally defaulting on a portion of his Ground Two claims. Petitioner had a plea hearing in which he raised no objection, a PCR hearing, and a PCR appeal in which to raise these issues. However, he failed to raise them, raise them properly, or preserve the issues for habeas review. Petitioner cannot establish cause and prejudice because he has abandoned the opportunities to preserve these issues. Petitioner has failed to meet this burden. See 28 U.S.C. § 2254; Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990) (“Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court.”); Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir. 1996) (holding that to show prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different); Rodriguez, 906 F.2d at 1159 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent”) (citing Murray).
In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). To pass through the actual-innocence gateway, a petitioner's case must be “truly extraordinary.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The court's review of the record does not support a showing of actual innocence. Therefore, the procedural bar applies to a portion of Petitioner's Ground Two claims concerning counsel's failure to review and investigate all the witness statements in his case. 17
3. Merits Review
In Ground One, Petitioner alleges the PCR judge erred in denying his allegation that his plea was involuntary and uninformed because counsel failed to reveal all the State's evidence against him. ECF No. 1 at 5. In Ground Two, Petitioner claims the PCR judge erred when he denied Petitioner's allegation that his guilty plea was induced by ineffective assistance of counsel because Petitioner was not made aware of certain witness statements prior to entering his guilty plea. Id. at 7.
At the PCR evidentiary hearing, Petitioner testified he met with his attorney shortly after his attorney was appointed, and they discussed the murder charges, possible sentences, and the State's evidence. App. 67-69. Petitioner stated he and his counsel also talked about the witness statements in his case and what those statements said, but Petitioner did not see the statements. App. 69-70. Petitioner testified he and his counsel did not talk about possible defenses to his murder charge and Petitioner stated he did not know if he had a defense because he had not seen the statements. App. 71. Petitioner said he saw three statement transcripts, his own and two other individuals, but he did not see the three statements that led to his arrest, including his codefendant's statement. Id. Petitioner testified he told counsel he wanted to go to trial, and when he identified a witness he wanted counsel to investigate, counsel sent a private investigator to interview this person. App. 72-73. Petitioner stated he made the decision to enter a plea because he did want to go to trial blind not knowing who said what. App. 73. Petitioner testified that during his plea colloquy he informed the judge he wanted a trial, but following a break where he spoke with his family and his attorney, who advised Petitioner to take the plea, Petitioner decided to proceed with his plea. App. 72-75. Petitioner stated he “could have made a better decision of whether to pled [sic] guilty or not” if he had seen the witness statements. App. 75. 18
Petitioner's plea counsel testified he met with Petitioner at least once every two months. App. 81-82. Counsel stated he did not recall the State identifying 55 witnesses in Petitioner's case, but the State did have witnesses who placed Petitioner moving between one location and the shooting location. App. 82. Counsel testified he and Petitioner thoroughly reviewed all the witness statements counsel received, but Petitioner did not have an opportunity to see any of the statements because counsel did not have the necessary equipment. App. 83-84. Counsel stated he listened to the audio or watched the video of all the statements, and he took notes which he shared with Petitioner. App. 89. Counsel stated he and Petitioner discussed going to trial and counsel had prepared cross-examination for all the witnesses he thought the State would call. App. 85. Counsel testified he did not discover anything that would have presented a “real defense” and they were not going to call any witnesses. Id. Counsel said, leading up to the trial, Petitioner wanted to entertain an offer and counsel was able to have murder charge reduced to manslaughter but there was no sentencing recommendation. Id. Counsel testified it was Petitioner's decision not to go to trial and his decision to plead to manslaughter. App. 85-86.
In rejecting Petitioner's ineffective assistance of counsel claim, the PCR court found Petitioner failed to meet his burden of proof. App. 110. The court found credible counsel's testimony that he conferred with Petitioner on multiple occasions and discussed the pending charges and all the witness statements. Id. The court also found counsel conveyed to Petitioner the State's plea offer, and Petitioner had time to confer with his counsel and his family before making the decision to enter a plea. Id. The court also noted Petitioner could not say he would have changed his decision to enter a plea if he had viewed the videos. Id.
The PCR court also found Petitioner's involuntary plea claim to be without merit. Id. The court explained that Petitioner was aware there were witness statements he had not seen when he 19 entered his plea, and that his plea waived his right to challenge those statements. Id. The court noted that Petitioner stopped his plea hearing, and after taking time to reconsider, Petitioner told the judge he was satisfied with his attorney and he was entering his plea of his own accord. App. 111. The court found Petitioner understand the terms of the plea and entered into it freely and voluntarily. Id.
In support of his summary judgment motion, Respondent contends the PCR court's ruling was not an unreasonable application of law or fact that would entitle Petitioner to habeas relief. ECF No. 56 at 17-19. Respondent further argues Petitioner cannot demonstrate his plea was unintelligently made. Id. at 19-21.
In response, Petitioner argues his counsel was ineffective because he did not make all the transcripts of the potential prosecution witnesses' statements available for Petitioner's review. ECF No. 62 at 5-6. Petitioner also contends his counsel was ineffective when he failed to conduct a thorough investigation of Petitioner's case before advising Petitioner to enter a plea. Id. at 16- 19. Petitioner argues his plea was not voluntary and he could not make an informed decision to go to trial or enter a plea because he was not privy to all the State's evidence, i.e. the audio and video recorded statements. Id.
Petitioner also argues his counsel was ineffective because he was unaware of all the witnesses the State was planning to call at the trial and therefore counsel did not adequately investigate his case. ECF No. 62 at 2-5. As noted supra, this ground was not raised to or ruled on by the South Carolina appellate courts, and therefore is procedurally barred.
Addressing Petitioner's claims, the undersigned finds the evidence presented at the hearing supports the PCR court's finding that Petitioner and his counsel discussed his pending charges, the State's evidence, and the contents of all the witness statements. The understand further finds the PCR court reasonably found that Petitioner failed to show his guilty plea was induced by 20 ineffective assistance of counsel, especially in light of Petitioner's admission that “he could not say for certain if viewing the videos would have changed his decision to plead guilty.” App. 110. The PCR court's factual findings are based, in part, on its assessment that counsel's testimony was more credible than that of Petitioner. The PCR court's credibility determination is entitled to deference in this action. Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.”); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”). Petitioner may overcome this presumption of correctness only by showing “‘clear and convincing evidence to the contrary.'” Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Petitioner has shown no cause to discount the PCR court's credibility determination and the undersigned can find no basis in the record on which to overturn the state court decision.
Addressing Petitioner's involuntary plea claim, the undersigned finds the PCR court's finding that Petitioner was aware that there were witness statements he had not seen when he entered his plea was supported by the evidence in the record. Further, the PCR court reasonably found Petitioner waived his right to challenge these statements. Additionally, at the plea hearing, Petitioner stated he fully discussed his case with his counsel; he did not need additional time to speak with his counsel and he understood those talks; he understood the charges he was facing and the potential penalties; he wanted to enter an Alford plea to voluntary manslaughter; he understood his constitutional rights and that entering a plea gave up those rights; he was satisfied with his counsel's services; he did not have any complaints about the way his counsel handled his case; 21 and he entered an Alford plea freely, voluntarily, knowingly, and intelligently. App. 9-10, 1925. In light of the evidence presented, the undersigned finds the PCR court made reasonable findings of fact and reasonably applied federal law in denying Petitioner's involuntary guilty plea claim.
The undersigned finds Petitioner's ineffective assistance of counsel and involuntary guilty plea arguments are insufficient to satisfy the Strickland test. Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination in finding Petitioner was not prejudiced by trial counsel's failure to show Petitioner the audio/video recordings of the State's witness statements. Petitioner has also failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding his ineffective assistance of counsel and involuntary guilty plea claims. Accordingly, Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of these issues. Williams v. Taylor, 529 U.S. 420 (2000); Bell v. Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000); 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). The undersigned recommends Petitioner's habeas petition be dismissed.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's Motion for Summary Judgment, ECF No. 57, and the Petition be denied.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.” 22
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 2317
Florence, South Carolina 29503
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). 23