Opinion
C. A. 8:22-cv-02290-SAL-JDA
02-16-2023
Leviticus D. Young, Petitioner, v. Warden T. James, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 22.] Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Proceeding pro se, Petitioner filed this Petition for writ of habeas corpus on July 13, 2022. [Doc. 1.] On October 27, 2022, Respondent filed a return and memorandum to the petition and motion for summary judgment. [Docs. 21; 22.] On October 28, 2022, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 23.] Petitioner filed a response in opposition to the motion for summary judgment on December 2, 2022. [Doc. 26.] Respondent filed a reply on December 7, 2022. [Doc. 28.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on July 13, 2022. [Doc. 1-2 at 1 (envelope stamped received by prison mailroom on July 13, 2022).]
Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted.
BACKGROUND
Petitioner is confined in the South Carolina Department of Corrections pursuant to orders of commitment of the Greenville County Clerk of Court. [Doc. 1 at 1.] In March 2015, Petitioner was indicted for first-degree assault and battery, armed robbery, and possession of a weapon during the commission of a violent crime. [App. 326-29. The State subsequently dropped the weapons charge and, on January 11-12, 2017, Petitioner proceeded to trial on the remaining charges, first-degree assault and battery and armed robbery, before the Honorable Robin B. Stilwell, Circuit Court Judge. [App. 1-324.] Petitioner was represented at trial by attorney Lauren Taylor. [App. 1.] The jury found Petitioner guilty of both charges and Judge Stilwell sentenced him to concurrent terms of ten years' imprisonment for first-degree assault and battery and 18 years' imprisonment for armed robbery. [App. 317-24, 330-31.]
The Appendix can be found at Docket Entry Numbers 21-1 and 21-2.
Petitioner filed a pro se notice of intent to appeal on January 26, 2017, along with an explanation as to why he was unable to file the notice within the ten-day time limit. [Doc. 21-3.] On May 5, 2017, the South Carolina Court of Appeals dismissed Petitioner's appeal for failure to timely serve notice. [Doc. 21-4.] The remittitur issued on May 23, 2017. [Doc. 21-5.]
PCR Proceedings
Petitioner filed a pro se application for post-conviction relief (“PCR”) on August 7, 2017, alleging ineffective assistance of trial counsel for failing to file a notice of appeal, moving to quash the indictment, or challenging the court's subject matter jurisdiction. [App. 332-39.] On April 19, 2018, after briefing by the State, the Honorable Frank Addy, Circuit Court Judge, held an evidentiary hearing, at which Petitioner was represented by R. Mills Ariail, Jr. [App. 340-44 (State's Return), 345-82 (Evidentiary Hearing).] Judge Addy denied and dismissed Petitioner's PCR application by Order filed June 6, 2018. [App. 383-96.]
Petitioner timely appealed and, through Appellate Defender Katherine H. Hudgins, filed a petition for writ of certiorari asserting the PCR Court erred in finding his trial counsel was not ineffective for failing to file a notice of appeal. [Doc. 21-6.] Along with the petition for writ of certiorari, Petitioner's appellate counsel filed a brief pursuant to White v. State, 208 S.E.2d 35 (S.C. 1974). [Doc. 21-7.] The State filed a return, agreeing that the PCR Court had erred and that Petitioner was entitled to belated White v. State appeal. [Doc. 21-8.] The South Carolina Supreme Court transferred the matter to the Court of Appeals [Doc. 21-9], which granted Petitioner's petition for writ of certiorari and proceeded with review of his belated direct appeal [Doc. 21-10]. Petitioner presented one issue in his White v. State brief: did the trial judge err in refusing to suppress surveillance camera footage that only showed the front of the business where the crimes were committed?
In White v. State, the South Carolina Supreme Court held that if the PCR court determines that the applicant never voluntarily and intelligently waived his right to appeal, on appeal of the PCR court's decision, the South Carolina Supreme Court will review the trial record as if a direct appeal had been timely perfected to determine if there was reversible error. 208 S.E.2d 35, 39-40 (S.C. 1974).
[Doc. 21-11 at 4.] On March 23, 2022, after full briefing by both parties, the Court of Appeals affirmed Petitioner's conviction. [Docs. 21-12 (Brief of Respondent); 21-13 (Petitioner's Reply Brief); 21-14 (Order).] The remittitur issued on April 19, 2022. [Doc. 21-15.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on July 13, 2022. [Doc. 1.] Petitioner raises the following grounds and supporting facts, quoted substantially verbatim:
GROUND ONE: Ineffective assistance of Counsel, in violation of Petitioner's Federal Sixth Amendment rights.
Supporting facts: In this case, it is irrefutable Petitioner from the onset of this case was denied his Sixth Amendment right to counsel. Evidence by the S.C. Supreme Court granting White v. State ‘belated appeal'. However, this White appeal failed to correct additional deficiencies without the course of Petitioner's pursuit for justice in his case. Therefore, Petitioner respectfully requests this Honorable United States District Court “to take ‘Judicial Notice' to this initial claim, for which by law, will require remanding this case back to State court for proper adjudication.
GROUND TWO: See Attached, Requesting Summary Judgment to Remand back to State Court for exhaustion.
Supporting facts: . . . Ineffective assistance of counsel in that counsel failed to move to quash the indictment for armed robbery, when the weapon charges were dismissed.
GROUND THREE: The Court lacked subject-matter jurisdiction to try the Applicant for armed robbery.
Supporting facts: The court after dismissing the weapon charges did not have subject-matter-jurisdiction to even try the armed robbery case without a weapon.
GROUND FOUR: Counsel failed to object to “hands of one hands of all theory”.
Supporting facts: . . . the indictment failed to include this prosecution theory. Yet the court “amended within the court's charge,” outside the presence of the grand jury. For which is a due process violation, regardless of whether South Carolina considers (hands of one hands of all) a theory, statutory offense, or other facts which could impermissibly ‘broaden the scope of the indictment'.
[Docs. 1 at 5, 7, 8, 10; 1-1 at 6-7.] The case is now ripe for review.
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Habeas Corpus
Generally
Because Petitioner filed the Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision,” and “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101-02 (2011). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment. S.C. R. Civ. P. 59(e). Failure to do so will result in the application of a procedural bar to that claim by the Supreme Court of South Carolina. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
In Bostick v. Stevenson, 589 F.3d 160 (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 uniformly and strictly enforced the failure to file a motion pursuant to Rule 59(e) as a procedural bar. 589 F.3d at 162-65. 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.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 1727-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3), 243. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:
. . . [State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed, 468 U.S. at 10-11.
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915.
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances-where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or where a “fundamental miscarriage of justice” has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
As an alternative to demonstrating cause for failing to raise the claim, the petitioner may show a miscarriage of justice. To demonstrate a miscarriage of justice, the petitioner must show he is actually innocent. See Carrier, 477 U.S. at 496 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of someone who is actually innocent”). Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). To demonstrate this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
DISCUSSION
Respondent asserts that Petitioner has exhausted his state remedies but that all four of his federal habeas grounds are procedurally barred from this Court's review. [Doc. 21 at 21-23.] The Court agrees. While Petitioner raised his four federal habeas grounds in his PCR application, he raised only one issue in his PCR appeal-whether the PCR court erred in finding Petitioner's trial counsel not ineffective for failing to file a notice of intent to appeal. [See App. 333-34 (PCR Application); Doc. 21-6 at 3 (petition for writ of certiorari).] That issue was, thus, properly preserved for federal habeas review. However, both the State and the South Carolina Court of Appeals sided with Petitioner, found Petitioner's trial counsel ineffective, and cured any resulting prejudice by granting Petitioner a belated direct appeal. The state courts have thus resolved that issue in Petitioner's favor. All other grounds Petitioner raised in his PCR application and not on PCR appeal, including the four grounds raised in his federal habeas Petition, are procedurally barred and the Court cannot consider their merits absent a showing of cause and actual prejudice or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750; Carrier, 477 U.S. at 495-96.
The only other issue properly preserved for federal habeas review is Petitioner's White v. State direct appeal issue-whether the trial court erred in refusing to suppress surveillance camera footage. [See Doc. 21-11 at 4.] However, Petitioner has not raised that issue in his Petition.
Petitioner does not address Respondent's assertion of procedural default in his response to Respondent's motion for summary judgment. [See generally Doc. 26.] However, in his Petition and supporting memorandum Petitioner acknowledges that his federal habeas grounds have not been presented to the State's highest court and argues this Court should take “judicial notice” of those claims, as they were raised in his PCR application, “in order to afford [Petitioner] the fair one bite at the PCR apple.” [Docs. 1 at 5-12 (asserting that each ground was not raised to the State's highest court due to a “state created procedural err[or]”); 1-1 at 1-5 (asking the Court to take “judicial notice” of his PCR claims).] Petitioner asserts the issues raised in his PCR application were deserving of further review and that not presenting them in his PCR appeal denied him the right to a full and fair adjudication of those claims, which, under South Carolina law, includes an appeal. [Doc. 1-1 at 1-5, 8.] He thus asks this Court to “remand” his case and grant habeas corpus so he “may gain relief in state court” or exhaust his state court remedies. [Id. at 8.]
Petitioner's argument misses a critical element of exhaustion and procedural default-it is the petitioner's responsibility to comply with state court rules and raise his claims at the appropriate time under those rules. If a petitioner fails to comply with the state court's rules, he must show this Court that his failure was due to something other than his own mistake, inadvertence, or misunderstanding. Here, Petitioner argues his PCR claims should have been raised in his PCR appeal. Thus, liberally construed, Petitioner's assertion is that his PCR appellate counsel was ineffective for failing to present the remainder of his PCR claims in the Petition for Writ of Certiorari. However, ineffective assistance of appellate counsel is neither a cognizable freestanding claim in federal habeas nor a legally valid reason to excuse procedural default. See Davila v. Davis, 137 S.Ct. 2058, 2065-66 (2017) (declining to “extend Martinez [v. Ryan] to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel”); Martinez v. Ryan, 566 U.S. 1, 17 (2012) (creating a narrow exception to general rules of procedural default for claims of ineffective assistance of post-conviction counsel for failure to raise claims of ineffective assistance of trial counsel).
In addition, to the extent Petitioner has challenged the sufficiency of the PCR process, that is not a cognizable federal habeas issue either. See Lawrence v. Branker, 517 F.3d 700, 716-17 (4th Cir. 2008) (holding that a due process claim related to state post-conviction proceedings was not cognizable on federal habeas review because “[a] state prisoner has no federal constitutional right to post-conviction proceedings in state court”); Bryant v. State of Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (“[C]laims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief.”). Further, Petitioner's argument arises from the simple fact that his claims were not raised on PCR appeal, rather than an alleged malady in the state court's process for hearing claims.
Finally, Petitioner has not asserted he is actually innocent of his crimes, either in the claims he attempts to raise here or those presented to the state courts, and thus fails to show a miscarriage of justice warranting review of his federal habeas grounds, despite the procedural default. See Schlup v. Delo, 513 U.S. 298, 326-28 (1995) (equating “miscarriage of justice” with “actual innocence” and emphasizing the need for “extraordinary” circumstances to set aside procedural default).
Accordingly, Petitioner has technically exhausted his available state court remedies, but his claims are barred from further consideration by the state courts pursuant to independent and adequate state procedural rules, and he has failed to show reason for this Court to set aside the procedural default and consider his claims on the merits. For these reasons, all four of Petitioner's grounds for federal habeas relief remain procedurally defaulted and the Court recommends granting Respondent's motion for summary judgment in its entirety.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment [Doc. 22] be GRANTED, and the Petition be DENIED.
IT IS SO RECOMMENDED.