Opinion
C. A. 1:20-04264-DCC-SVH
08-18-2022
Eric Ancrum, Petitioner, v. State of South Carolina; Bryan P. Stirling, Director of the SCDC, and Warden Rafael Vergara of CoreCivic, Respondents.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
Eric Ancrum (“Petitioner”) is an inmate at the Tallahatchie County Correctional Institution in Mississippi. Through counsel, Petitioner filed this 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 Respondents' amended return and motion for summary judgment. [ECF Nos. 44, 45]. The motion having been fully briefed [ECF Nos. 56, 59], it is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondents' motion for summary judgment be granted.
I. Factual and Procedural Background
According to the state court record,
[Petitioner] was indicted at the June 2006 term of the Charleston County Grand Jury for trafficking cocaine (more than 400 grams) (2006-GS-10-4066), possession with intent to distribute cocaine within proximity of a school (2006-GS-10-4069), manufacturing cocaine base crack (2006-GS-10-4070), possession of a firearm during the commission of a violent crime (2006-GS-10-4071), and manufacturing cocaine base crack within proximity of a school (2006-GS-10-4188). He was also indicted at the October 2006 term for trafficking cocaine base (200-400 grams) (2006-GS-10-9674) and PWID cocaine base within proximity of a school (2006-GS-10-9675).[ECF No. 12-1 at 15-16]. He proceeded to a jury trial on October 8, 2007, on these seven charges before the Honorable George C. James, Circuit Court Judge. Id. at 91 et seq. At trial, Petitioner was represented by John Delgado, Esq., and William Nettles, Esq. Id. The jury found Petitioner not guilty of possession of the firearm charge, but otherwise found him guilty as charged. [ECF No. 12-10 at 11-16]. In accordance with state law and due to Petitioner's previous convictions, Judge James sentenced Petitioner to life without parole for trafficking cocaine (400 grams or more), trafficking cocaine base crack (200 grams or more), possession with intent to distribute cocaine within proximity of a school, and possession with intent to distribute cocaine base within proximity of a school. [ECF No. 12-10 at 26-27]. Judge James sentenced Petitioner to fifteen years' imprisonment for manufacturing cocaine base and fifteen years' imprisonment for manufacturing crack cocaine within proximity of a school. Id. at 27. The sentences were ordered to run concurrently. Id. at 26-27.
Petitioner did not timely serve a notice of appeal on opposing counsel. [ECF No. 12-1 at 10-12]. Consequently, the appeal was dismissed on October 24, 2007, and the remittitur was issued on November 9, 2007. See id.
On March 25, 2008, Petitioner filed a pro se application for postconviction relief (“PCR”) in which he asserted ineffective assistance of counsel based on trial counsel's failure to file the notice appeal with the solicitor or with the Attorney General. Id. at 25-31. On November 18, 2009, after briefing by the State, Petitioner appeared for an evidentiary hearing before the Honorable Kristi Lea Harrington, Circuit Court Judge (“PCR Court”), who heard testimony from Petitioner and attorneys Delgado and Nettles. [ECF No. 12-10 at 33-34]. Petitioner was represented by Stephen Schmutz, Esq., and Anthony P. Lamantia III, Esq. (“PCR counsel”), who raised additional grounds of ineffective assistance of trial counsel on Petitioner's behalf. Id. at 33-37. On December 14, 2009, the PCR Court issued an order (“PCR Order”) granting Petitioner a belated appeal pursuant to White v. State, 208 S.E.2d 35 (1974) (allowing for belated review of a direct appeal that is properly presented with a PCR appeal), but denying relief on all other allegations and dismissing his application. [ECF No. 12-1 at 15-22].
Petitioner appealed and, on January 17, 2011, filed a petition for writ of certiorari asking, “Did the PCR court err in denying Petitioner's request for a new trial based upon his claims of ineffective assistance of counsel?” [ECF No. 12-11 at 4-16]. The South Carolina Supreme Court denied the petition on May 14, 2012 [ECF No. 12-14], and issued the remittitur on June 7, 2012 [ECF No. 12-15].
Although Petitioner had been granted a White v. State appeal in his first PCR action, PCR counsel never filed the appeal. As such, Petitioner filed a second PCR action requesting to file such an appeal, which was granted, and to which the State consented. [ECF No. 12-16]. Tristan M. Shaffer, Esq., represented Petitioner in the second PCR action, as well as in this habeas corpus action. See id. Petitioner subsequently filed a White v. State appeal asking, “Did the trial court err in instructing the jury that actual knowledge of the presence of an item is evidence of the Petitioner's intent to control its disposition or use?” [ECF No. 12-20 at 4]. The South Carolina Court of Appeals issued a per curiam opinion affirming Petitioner's conviction and finding that Petitioner had failed to object to the jury charge or request another charge at his trial:
Because there is sufficient evidence to support the PCR judge's finding that Petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant certiorari on Petitioner's petition and proceed with a review of the direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).
On direct appeal, Petitioner argues the trial court erred in instructing the jury that actual knowledge of the presence of drugs was strong evidence of Petitioner's intent to control their disposition or use. Because Petitioner failed to object to the jury charge as given at his trial or request an additional charge, we affirm pursuant to Rule 220(b), SCACR and the following authorities: Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the [trial court] to be preserved for appellate review.”); State v. Williams, 266 S.C. 325, 335, 223 S.E.2d, 38, 43 (1976) (“The rule in this state is firmly established that failure to object to a charge, or failure to request an additional charge when the opportunity is afforded, constitutes a waiver of any right to complain on appeal of an alleged error in the charge.”); State v. Stone, 285 S.C. 286, 387, 330 S.E.2d, 286287 (1985) (explaining a party must object to a jury charge as given or request an additional charge when provided the opportunity to do so to preserve the issue for appellate review).
[ECF No. 12-22]. The remittitur was issued on October 29, 2020. [ECF No. 12-23].
Petitioner filed the instant writ of habeas corpus on December 9, 2020, and Respondents' return and motion for summary judgment were filed on March 30, 2021. [ECF Nos. 1, 12, 13]. On July 16, 2021, the undersigned issued a report and recommendation, recommending the district judge grant Respondents' motion. [ECF No. 25].
On October 6, 2021, Petitioner filed a motion to amend/correct his petition for writ of habeas corpus, which the district judge granted on November 15, 2021. [ECF Nos. 29, 34]. Plaintiff filed his amended petition on November 30, 2021. [ECF No. 37]. The previously-issued report and recommendation was deemed moot, and the matter was recommitted to the undersigned. [ECF No. 39].
Respondent filed the currently-pending amended return and motion for summary judgment as to Petitioner's amended petition on January 18, 2022. [ECF No. 44, 45].
II. Discussion
A. Federal Habeas Issues
Petitioner raises the following ground for relief:
Ground One: Sixth Amendment violation-Trial Counsel was ineffective in failing to object to the jury instructions that actual knowledge of drugs is evidence of a defendant's intent to control their disposition or use.
Supporting Facts: The trial court repeatedly instructed the jury that actual knowledge of the presence of the various drugs was . . . evidence of Petitioner's intent to control its disposition or use. Petitioner asserts that trial counsel should have objected to this jury instruction based to the following: 1) the charge negates the prosecution's requirement to prove dominion and control in order to establish constructive possession under state law; 2) this language constitutes a charge on the facts; and 3) this language violates due process by relieving the state's requirement prove dominion and control.
Ground Two: Sixth Amendment violation-Trial Counsel was ineffective in failing to object to the constructive possession jury instruction.
Supporting Facts: Essentially, the trial court defined constructive possession as “the Defendant had dominion and control or had the right to exercise dominion and control over either the drug itself of the property which [the drugs were] found.” ....Petitioner asserts the following: 1) This is not a correct definition of constructive possession; 2) This constitutes a charge on the facts which is prohibited by the South Carolina Constitution; 3) This language violates due process in that it relieves [the prosecution of] its burden to prove an element of the offense because the State need no prove construction possession but can merely prove dominion and control of the property in which the drugs were found; 4) this language constitutes an unconstitutional presumption.
Ground Three: Sixth Amendment violation-Trial Counsel was ineffective in failing to object to the Constructive possession jury instruction.
Supporting Facts: Trial Counsel did not object when the Trial Court informed the jury concerning the following inference: “The Defendant's knowledge and possession may be inferred when [the drugs are] found on the property under Defendant's control.” .... Petitioner asserts that this language is a charge on the facts which is prohibited by the South Carolina Constitution.[ECF No. 37 at 5-10 (spelling and punctuation slightly altered)].
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 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 Antiterrorism and Effective Death Penalty Act (“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. § 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 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. 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 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 OSullivan.” 559 S.E.2d at 854. As such, it is an “extraordinary” remedy under OSullivan, “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 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 Court of Appeals.
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the 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 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.
D. Analysis
Petitioner argues habeas relief should be granted for trial counsel's ineffectiveness for failing to object to three jury instructions, all concerning what the jury must find to determine whether Petitioner was in possession of the relevant drugs. Respondent asserts habeas relief should be denied because (1) the petition is barred by the statute of limitations; (2) these grounds are procedurally defaulted; and (3) in the alternative, these grounds lack merit.
1. Statute of Limitations
Under the AEDPA, a § 2254 petition must be filed within one year of the date on which the state court judgment became final by the conclusion of direct review or the expiration of the time for seeking review. 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled during the pendency of a properly-filed state post-conviction action. § 2244(d)(2).
Here, the parties disagree about the application of § 2244 to the facts of this case. Petitioner asserts that his direct appeal became final, and, thus, the one-year statute of limitations began to run, following the conclusion of his belated direct appeal in October 2020. [ECF No. 56 at 3]. As such, he contends the court should consider timely both his petition filed December 9, 2020, and his amended petition, where Plaintiff filed his motion to amend on October 6, 2021. Id.
On the other hand, Respondent argues the clock began to run on Petitioner's statute of limitations on October 22, 2007, 10 days after his sentencing, where Petitioner failed to timely file and serve a notice of appeal. [ECF No. 44 at 14]. According to Respondent, Petitioner's first PCR application filed on March 25, 2008, stopped the clock; however, the clock resumed on June 8, 2012, when the remittitur was returned to the Circuit Court after the South Carolina Supreme Court denied certiorari in the first PCR appeal. Id. Respondent contends the statute of limitations ran on January 5, 2013. Id. Based on Respondents' calculations, this action is time-barred, as Petitioner did not file his second PCR action until well after the federal statute of limitations expired, and he did not file the instant habeas action until December 9, 2020. Id. at 14-15.
To resolve the parties' competing statute-of-limitations calculations, the undersigned looks to Jimenez v. Quarterman, 555 U.S. 113 (2009), in which the Supreme Court addressed the application of § 2244 to out-of-time direct appeals. In Jimenez, the Court held as follows:
[W]here a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet “final” for purposes of § 2244(d)(1)(A). In such a case, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” must reflect the conclusion of the out-oftime direct appeal, or the expiration of the time for seeking review of that appeal.
555 U.S. at 121. Thus, Petitioner is correct: the statute of limitations did not begin to run until the conclusion of his White v. State appeal. Therefore, this action is timely.
Respondent attempts to distinguish Jimenez by arguing this case is a belated review of direct appeal issues during a PCR appeal and not an out-oftime direct appeal. [ECF No. 44 at 15]. Respondent has not provided support for his argument that Jimenez is not applicable, only identifying a distinction without a difference. The undersigned concludes the amended petition is not barred by the statute of limitations.
Respondent admits that in this district, such attempts to distinguish White v. State appeals from the type of appeal considered in Jimenez have been largely unsuccessful. [See ECF No. 44 at 16 (citing Helton v. Yeldell, C/A No. 5:19-2789-DCC-KDW, 2020 WL 4719890, at *4 (D.S.C. Mar. 18, 2020) (“Because Petitioner was granted a belated direct appeal pursuant to White v. State, 108 S.E.2d 35 (1974), the statute of limitations for filing a § 2254 petition restarted.”), adopted by Helton v. Warden of Leath Corr. Inst., Case C/A No. 5:19-02789-DCC, 2020 WL 3056043 (D.S.C. June 9, 2020); Bryant v. Warden, Lieber Corr. Inst., C/A No. 0:13-2491 DCN, 2014 WL 2919145, at *5-*6 (D.S.C. June 26, 2014))]. Respondent identifies an earlier case in this District, Wilder v. McCabe, C/A No. 3:11-187-MBS, 2012 WL 831484 (D.S.C. Mar. 12, 2012), where a petitioner refused to consent to a White v. State
Respondent has withdrawn the argument that, even if the court rejected Respondents' interpretation of Jimenez, Grounds Two and Three of the amended petition are still time-barred. [ECF No. 44 at 17, ECF No. 59 at 2 n.2 (citing Angles v. Dollar Tree Stores, Inc., 494 Fed.Appx. 326, 329 (4th Cir. 2012))].
2. Procedural Default and Cause
Petitioner admits his Grounds are procedurally defaulted, but asserts he can overcome the procedural bar via Martinez v. Ryan, 566 U.S. 1, 9 (2012). [ECF No. 56 at 5].
As referenced above, in Coleman v. Thompson, 501 U.S. at 755, the Supreme Court held that ineffective assistance of counsel will constitute cause to excuse procedural default only if it is an independent constitutional violation. Subsequently in Martinez, the Court recognized a narrower exception to the rule established in Coleman, holding that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” The Supreme Court identified the boundaries of the Martinez exception as follows:
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review appeal and thus delayed in filing his appeal, and that time was counted against him in calculating the statute of limitations. 2012 WL 831484 at *2-*3. This case is not akin to Wilder in that the delay in filing Petitioner's White v. State brief is attributable to PCR counsel's error, not Petitioner's.
collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington. To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.Id. at 14 (internal citation omitted).
In accordance with Martinez, to overcome the procedural default of his grounds for relief, Petitioner must establish that PCR counsel was deficient in failing to present the ground and Petitioner was prejudiced as a result. Petitioner must also show that the ineffective-assistance-of-trial-counsel (“IATC”) claim itself is a substantial one by showing it has merit.
3. The Underlying IATC Claims
All Grounds asserted by Petitioner concern the following jury instructions:
To prove possession of cocaine, the State has to prove beyond a reasonable doubt that the Defendant had the power and intent to control the disposition or use of the cocaine. Possession may be either actual or constructive, just as I referenced earlier. Actual possession means that the cocaine was in the actual physical custody of the Defendant. Constructive possession means that the Defendant had dominion and control over either the cocaine itself or the property on or in which the cocaine was found.
I tell you again that mere presence at the scene where drugs are found is not enough in and of itself to prove possession.
Actual knowledge of the presence of the cocaine is evidence of the Defendant's intent to control its disposition or use. The
Defendant's knowledge of the presence of the cocaine and possession of the cocaine may be inferred when the substance is found on property under the Defendant's control. Again, however, that inference is simply an evidentiary fact to be taken into account by you, if at all, along with the other evidence in this case and is to be given the weight you think it should have. Two or more persons may have joint possession of a drug.[ECF No. 12-9 at 95-96 (emphasis added)].
a. Ground One
In Ground One, Petitioner asserts trial counsel should have objected to the “actual knowledge” instruction included above that “[a]ctual knowledge of the presence of the cocaine is evidence of the Defendant's intent to control its disposition or use.” [ECF No. 56 at 6]. As explained earlier, because this ground is procedurally defaulted, Petitioner must show that his underlying claim is substantial to overcome the procedural default pursuant to Martinez.
Generally, to prevail on an ineffective assistance of counsel claim, a petitioner must show (1) that trial counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a “strong presumption” that trial counsel's representation fell within the “wide range of reasonable professional assistance,” and the errors must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 21 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
Because this issue was not raised in the PCR action, trial counsel were not questioned about it during the evidentiary hearing. [See ECF No. 12-10 at 40-73, 86-109]. Moreover, Petitioner has not provided any evidence as to counsel's recognition of, investigation of, or decision-making on this issue. Instead, Petitioner primarily offers reasons the jury instruction was improper, and he implies that an objection to the “actual knowledge” instruction would have been consistent with the defense argument that Petitioner was merely present at the time the police executed the search warrant. [ECF No. 56 at 6-11]. Petitioner's arguments do not acknowledge that “[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. Strickland directs that “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. Petitioner has not met his burden of demonstrating that there is some merit to his assertion that trial counsel were deficient. He has provided no evidence concerning trial counsel's strategic decisions, or lack thereof, in failing to object to the “actual knowledge” instruction. “It should go without saying that the absence of evidence cannot overcome the ‘strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'” Burt v. Titlow, 571 U.S. 12, 17 (2013) (quoting Strickland, 466 U.S. at 689).
To the extent Petitioner argues that no reasonable counsel could have failed to object to the “actual knowledge” instruction, Respondent contends the “actual knowledge” instruction was proper under state law at the time of Petitioner's trial. The South Carolina Supreme Court reviewed a similar instruction in a case predating Plaintiff's trial and found counsel was not unreasonable in failing to object to the instruction. See Solomon v. State, 443 S.E.2d 540, 529 (S.C. 1994) (holding a PCR judge had properly rejected the claim that trial counsel should have objected to the trial court's charge that “‘actual knowledge of the presence of [a] controlled substance is strong evidence of intent to control disposition'” based on the argument that “the trial judge's use of the word ‘strong' amounted to a comment on the facts or an opinion on the weight of the evidence”); see State v. Kimbrell, 362 S.E.2d 630, 631 (S.C. 1987) (“Because actual knowledge of the presence of the drug is strong evidence of intent to control its disposition or use, knowledge may be equated with or substituted for the intent element.” (citing State v. Lane, 245 S.E.2d 114 (1978))). Solomon remained good law until overruled in State v. Cheeks, 737 S.E.2d 480 (S.C. 2013). But Cheeks was decided years after
Petitioner's 2007 trial and months after the conclusion of Petitioner's first PCR action. Thus, trial counsel could not have relied upon Cheeks in objecting to the “actual knowledge” instruction.
Petitioner submits three arguments he believes trial counsel should have raised had they objected to the “actual knowledge” instruction: (1) the “actual knowledge” instruction violated the Due Process Clause by shifting the burden of the prosecution to prove constructive possession; (2) the “actual knowledge” instruction violated state law, as it was a charge on the facts in violation of the South Carolina Constitution; and (3) the “actual knowledge” instruction violated state and federal law by negating the mere presence instruction. [ECF No. 56 at 6-11]. Two of these arguments-that the “actual knowledge” charge undermines the “mere presence” charge and that the “actual knowledge” charge is an improper expression of the judge's view on the weight of the evidence-were eventually accepted by the South Carolina Supreme Court in Cheeks. See 737 S.E.2d at 484. But Petitioner asserts that even without the guidance by Cheeks, “the legal underpinnings of Petitioner's issue predate Petitioner's trial.” [ECF No. 56 at 11 n.4]. Even accepting Petitioner's argument, these same legal arguments were similarly available at the time of Solomon, yet the South Carolina Supreme Court found trial counsel was not ineffective for failing to object to the “actual knowledge” instruction. Counsel are not expected to anticipate changes in the law in order to provide reasonable assistance under federal law. See Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir. 1995) (“[T]he case law is clear that an attorney's assistance is not rendered ineffective because he failed to anticipate a new rule of law.”); United States v. Montecinos, Criminal No. 3:080590, 2017 WL 8941181, at *2 (D.S.C. Aug. 7, 2017) (“A change in law does not render . . . counsel ineffective for failing to anticipate it.”); see also Ramos v. Louisiana, 140 S.Ct. 1390, 1420 (2020) (“[T]he Courts of Appeals have consistently held that an attorney is not ineffective for failing to anticipate or advocate for the overruling of a constitutional precedent of this Court.”) (Kavanaugh, J., concurring in part).
Without any evidence as to trial counsel's strategy, or lack thereof, in failing to object to the jury instruction, and with the applicable state case law supporting the charge as given at Petitioner's trial, the undersigned cannot find that Petitioner has demonstrated a substantial claim of deficiency and resulting prejudice from trial counsel's representation. Accordingly, Petitioner has not met his burden under Martinez.
b. Ground Two
In Ground Two, Petitioner asserts trial counsel should have objected to the “constructive possession” instruction included above that “[c]onstructive possession means that the Defendant had dominion and control over either the cocaine itself or the property on or in which the cocaine was found.” [ECF No. 56 at 11].
Here, as also discussed above concerning Ground One, Petitioner has not met his burden of demonstrating merit that trial counsel were deficient where he has provided no evidence concerning trial counsel's strategic decisions, or lack thereof, in failing to object to the “actual knowledge” instruction. Also, to the extent Petitioner argues that no reasonable counsel could have failed to object to the “constructive possession” instruction, Respondent contends the “constructive possession” instruction as a whole was proper under state law at the time of Petitioner's trial and has been recently upheld.
As recently stated by the South Carolina Supreme Court:
[I]t is now clear that to prove trafficking (when based on possession) or simple possession, the State must prove two elements. First . . . the State must prove the defendant had either actual physical custody of the drugs, or the right or power to exercise control over the drugs .... the second element is now stated as the defendant must have knowledge of the drugs and the intent to control their disposition or use ....
In this case, the trial court began its jury instruction correctly, informing the jury the State must prove both required elements to convict Stewart of trafficking or simple possession. The trial court stated, “To prove possession, . . . the State must prove beyond a reasonable doubt the defendant had knowledge of, power over, and the intent to control the disposition or use of the drugs involved.” As the court continued, however, it informed the jury, “Constructive possession means that the defendant had dominion and control or the right to exercise dominion and
control over either the drugs itself or the property upon which the drugs were found.”
This is the statement to which Stewart objected. If we considered the statement only in isolation as a complete definition of constructive possession, the statement would be problematic. The primary problem would be that the statement ignores the second element we described above..... If we consider the statement to which Stewart now objects only in isolation, it failed to convey both elements to the jury. However, we do not consider jury instructions in isolation, but as a whole. State v. Herndon, 430 S.C. 367, 371, 845 S.E.2d 499, 502 (2020). When considered as a whole, the trial court's definition of constructive possession adequately conveyed both elements to the jury. Therefore, we find no error in the trial court's definition of constructive possession.State v. Stewart, 858 S.E.2d 808, 810-12 (S.C. 2021) (certain citations omitted)), reh'g denied (June 16, 2021).
Here, too, Judge James explained to the jury that the State must show more than that the defendant had dominion and control of the drugs or the premises on which the drugs were found. He explained the State must prove the defendant had the power and intent to possess the drugs and/or control their distribution. He explained to the jury that possession could be actual or constructive. Judge James also charge the jury that the State also had to prove criminal intent. He also explained on several occasions that mere presence at the location were drugs were found, or where a crime was being committed, was not sufficient to convict. He instructed the jury the State must prove beyond a reasonable doubt that the defendant had the power and intended to possess the drugs or control their distribution or use.
Petitioner argues trial counsel should have objected to the “constructive possession” instruction because the trial court's definition of constructive possession violates the Due Process Clause by shifting the burden from the prosecution to prove dominion and control of the drugs, relying on State v. Adams, 352 S.E.2d 483, 486 (S.C. 1987), and also citing to State v. Ellis, 207 S.E.2d 408 (S.C. 1974) (holding “constructive possession occurs when the person charged with possession has dominion and control over either the drugs or the premises upon which the drugs were found.” [ECF No. 56 at 13].
The relevant portion of Adams is as follows:
Further, the trial judge charged the jury that articles in a dwelling house “must be deemed to be in the constructive possession of the person controlling the house in the absence of evidence to the contrary.” The jury could have taken this language to require appellant to rebut the State's evidence. This instruction impermissibly shifted the burden of proof to appellant to disprove possession which is an element of the offense charged. Moreover, the error could not be harmless in view of appellant's asserted defense that he had no knowledge of the presence of the drugs and that another person was using his residence in his absence immediately prior to the search.
The trial judge's charge tracks language found in [Ellis], which is no longer valid. The proper charge on constructive possession is to instruct the jury that the defendant's knowledge and possession may be inferred if the substance was found on premises under his control. The trial judge should explain to the jury that it is free to accept or reject this permissive inference of
knowledge and possession depending upon its view of the evidence.Adams, 352 S.E.2d at 486 (1987) (certain citations omitted), overruled by Stewart, 858 S.E.2d 808.
The constructive possession language overruled in Adams was not the language Judge James instructed, and the language suggested by Adams as proper was not overruled until 2021 in Stewart. As explained by the South
Carolina Supreme Court in 2021, addressing both Adams and Ellis:
In Ellis, the Court held the State presented evidence to support an inference of knowledge and possession sufficient to survive a directed verdict motion. Heroin belonging to the defendant's foster son was found in a guest bedroom in her home, the guest room was adjacent to her own bedroom, and she entered the guest room at least twice a week. In support of our holding, we stated “Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession” . .
. . We discussed in each case the inference of knowledge and possession, but we did not suggest in any of the cases the trial court should explain the inference to the jury.
In Adams, this Court misinterpreted these decisions and directed trial courts to explain the inference of knowledge and possession to a jury. The challenged charge in this case was taken almost verbatim from Adams, in which we stated, “The proper charge on constructive possession is to instruct the jury that the defendant's knowledge and possession may be inferred if the substance was found on premises under his control” .... The inference is a valid one for the jury to draw, and the trial attorneys may argue to the jury whether the inference should be drawn. The jury instruction explaining the inference, however, is improper. We overrule Adams on that point. The jury charge instructing a jury it may infer knowledge or possession when a
substance is found on property under the defendant's control should no longer be given.Stewart, 858 S.E.2d at 812-13 (certain citations omitted).
As with Ground One, without any evidence as to trial counsel's strategy, or lack thereof, in failing to object to the jury instruction, and with the applicable state case law supporting the charge as given at Petitioner's trial, the undersigned cannot find that Petitioner has demonstrated a substantial claim of deficiency and resulting prejudice from trial counsel's representation. Accordingly, Petitioner has not met his burden under Martinez.
c. Ground Three
In Ground Three, Petitioner asserts trial counsel should have objected to the inference instruction included above that “Defendant's knowledge and possession may be inferred when a substance is found on the property under the Defendant's control.” [ECF No. 56 at 15].
Here, as also discussed above concerning Grounds One and Two, Petitioner has not met his burden of demonstrating merit that trial counsel were deficient where he has provided no evidence concerning trial counsel's strategic decisions, or lack thereof, in failing to object to the inference instruction. Additionally, Petitioner's argument fails for the same reason as discussed above, that the objected-to instruction was not overturned until 2021. Compare Stewart, 858 S.E.2d 808, and Adams, 352 S.E.2d at 486. On May 19, 2021, the South Carolina Supreme Court held for the first time the jury instruction, previously approved in Adams, that: “The defendant's knowledge and possession [of a controlled substance] may be inferred when a substance is found on the property under the defendant's control [.],” was no longer good law and should no longer be given to juries. Stewart, 352 S.E.2d at 812-13.
Petitioner argues he is not relying on Stewart, but that the jury charge was on the facts in violation of the State constitution. However, Petitioner cites to no case law, nor is the court aware of any, holding prior to 2021 that this jury instruction was improper for this reason or any other. See Kornahrens, 66 F.3d at 1360 (“[T]he case law is clear that an attorney's assistance is not rendered ineffective because he failed to anticipate a new rule of law.”).
As with Grounds One and Two, without any evidence as to trial counsel's strategy, or lack thereof, in failing to object to the jury instruction, and with the applicable state case law supporting the charge as given at Petitioner's trial, the undersigned cannot find that Petitioner has demonstrated a substantial claim of deficiency and resulting prejudice from trial counsel's representation. Accordingly, Petitioner has not met his burden under Martinez.
4. The Ineffective-Assistance-of-PCR-Counsel Claim
Petitioner has also failed to offer evidence to support his argument that PCR counsel was ineffective for failing to argue that trial counsel should have objected to the jury instructions discussed above. Petitioner asserts that PCR counsel “inexplicably” failed to raise the issues, and he asserts that “[t]he failure of First PCR Counsel to raise this issue is one potential issue of fact which justifies the denial of Respondents' Motion for Summary Judgment.” [ECF No. 56 at 11 & n.5, see also id. at 14-15, 17]. However, Petitioner does not identify any issue of fact concerning PCR counsel's performance. He offers little more than speculation that PCR counsel must have been deficient. But in evaluating PCR counsel's performance, the court must follow Strickland and begin with the presumption that counsel's representation was reasonable and then consider the evidence that rebuts that presumption. Petitioner has identified no such evidence.
The undersigned cannot speculate based on the record before the court that PCR counsel performed unreasonably in failing to raise the issues addressed above. For this additional reason, Petitioner has not met his burden under Martinez.
5. No Cause and Prejudice
Petitioner's grounds for habeas relief are procedurally barred. He has not met his Martinez burden of demonstrating ineffective assistance of PCR counsel or a substantial claim of ineffective assistance of trial counsel. He has not asserted any other cause and prejudice to overcome the procedural default of Grounds One, Two, or Three. Because the procedural bar stands, Petitioner has failed to meet his burden under § 2254 and is not entitled to relief.
Given the recommendation above, it is unnecessary to address Respondents' additional arguments that the petition should be dismissed based on the overwhelming evidence of Petitioner's knowledge and intent to possess the drugs and their distribution and where the convictions at issue were not based on mere presence. [See, e.g., ECF No. 44 at 23-26]. Additionally, Petitioner has not argued, nor responded to Respondents' argument asserting otherwise, that there has been a miscarriage of justice in this case, defined as actual innocence. See id. at 38.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondents' motion for summary judgment and dismiss the petition with prejudice.
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.”
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 901 Richland Street Columbia, South Carolina 29201
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).