Opinion
C. A. 8:20-cv-00800-TLW-JDA
01-05-2022
Marie Assa'ad-Faltas, Petitioner, v. State of South Carolina, City of Columbia South Carolina, Respondents.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Marie Assa'ad-Faltas (“Petitioner”), proceeding pro se, brings this habeas corpus action under 28 U.S.C. § 2254. This matter is before the Court on Respondents' motion for summary judgment [Doc. 58] and Petitioner's motions to strike and for default and summary judgment [Doc. 70], for an evidentiary hearing [Doc. 80], for humanitarian accommodation in document filing [Doc. 92], and for judicial notice of intervening events [Doc. 97]. 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.
Petitioner argues the Federal Rules of Civil Procedure allow her to assert a claim under 42 U.S.C. § 1983 along with her habeas grounds and advances a constitutional challenge to South Carolina's Uniform Post-Conviction Procedure Act, contending grants of post-conviction relief should not be appealable. [See, e.g., Docs. 1 at 1; 80 at 4; 83 at 1.] The Court addresses this claim in its analysis of Ground Eleven.
Petitioner filed this Petition for writ of habeas corpus on February 19, 2020. [Doc. 1.] On April 27, 2021, Respondents filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 57; 58.] The same day, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment/dismissal procedure and the possible consequences if she failed to adequately respond to the motion. [Doc. 60.] Since then, and related to Respondents' motion for summary judgment, Petitioner has filed (a) a motion to strike Respondents' return and memorandum and motion for summary judgment, for default, and for summary judgment [Doc. 70]; (b) a preliminary response in opposition to Respondents' motion for summary judgment [Doc. 71]; (c) a sur reply, reply, supplemental opposition, and motion for evidentiary hearing [Docs. 80; 81]; and (d) another sur reply or reply [Doc. 83]. Related to their motion for summary judgment and Petitioner's subsequent filings, Respondents have filed (a) a response in opposition to Petitioner's motion [Doc. 75]; (b) a reply [Doc. 76]; and (c) another reply [Doc. 82]. On August 19, 2021, the Court ordered additional briefing regarding grounds that had not been addressed in previous filings. [Doc. 86.] On September 10, 2021, Respondents filed their additional briefing [Doc. 89], and on September 29, 2021, Petitioner filed her additional briefing [Doc. 91]. Petitioner also filed a motion for humanitarian accommodation in document filing [Doc. 92], to which Respondents have filed a response and amended response [Docs. 94; 95], and a motion for judicial notice of intervening events [Doc. 97].
Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondents' motion for summary judgment be granted and Petitioner's motions be denied.
BACKGROUND
In October 2011, the City of Columbia cited Petitioner for violating several ordinances related to accumulated trash, leaves, or debris on her property (the “Unlawful Acts” charges). [App. 614-16. Petitioner had several other pending cases in Columbia Municipal Court and on March 12, 2013, pursuant to an order from the South Carolina Supreme Court, the Honorable Carl L. Solomon, Municipal Court Judge, held a status conference on all matters in which Petitioner was a party and heard pretrial motions related to the Unlawful Acts charges. [App. 30-121.] At that time, Petitioner was represented by Theodore N. Lupton (“Pretrial Counsel”). [App. 30.] Petitioner proceeded to trial on the Unlawful Acts charges on April 11, 2013, and was represented by Orin G. Briggs (“Trial Counsel”). [App. 201-474.] The jury found Petitioner guilty [App. 464], and Judge Solomon sentenced her to 30 days in jail [App. 590-91].
The Appendix can be found at Docket Entry Numbers 57-1 through 57-7.
The Municipal Court Clerk had appointed multiple attorneys to represent Petitioner, all of whom asked to be relieved for various reasons. [App. 6-7.] The Honorable James R. Barber, III, Municipal Court Judge, personally appointed Lupton based on his experience and ability to handle a “difficult client.” [App. 7.] Lupton moved to be relieved as counsel one month after his appointment due to Petitioner's verbal abuse and harassment. [App. 8-11.] Petitioner joined in Lupton's motion and requested to represent herself. [App. 14, 20.]
Direct Appeal
Petitioner appealed to the Richland County Court of Common Pleas “based on an alleged violation of the due process clauses of the State and Federal Constitutions, on the absence of specific authority to adopt said ordinances, and the law against greater local penalties established in Beachfront Entertainment, Inc. d/b/a Bert's Bar v. Town of Sullivan's Island, 666 S.E.2d 912 (S.C. 2008).” [App. 645.] On December 13, 2013, the Honorable Alison Renee Lee, Circuit Court Judge, heard appellate arguments. [App. 647-755.] Petitioner proceeded pro se; however, her previously appointed appellate attorney, Tristan M. Shaffer, was present throughout the hearing. [App. 647.] At the hearing, Petitioner raised the following grounds, as enumerated by the appellate court:
1. the City's definition of “rubbish” is preempted;
2. the City does not have authority to regulate things affecting health and safety based upon sovereignty principles;
3. Petitioner was selectively prosecuted;
4. the City gathered information from an illegal entry without a search warrant, which should be suppressed;
5. the ordinances are void for vagueness;
6. the jury pool was tainted;
7. Petitioner did not have a jury of her peers because immigrants do not have the right to sit on juries;
8. Petitioner was prejudiced because she did not have the last word; and
9. Petitioner was not qualified as an expert witness.[App. 757-58.] Judge Lee affirmed Petitioner's conviction on August 19, 2014. [App. 756-71.] Petitioner filed a motion for reconsideration [Doc. 57-9], which Judge Lee denied on October 24, 2014 [App. 773-76]. In her order denying the motion for reconsideration, Judge Lee addressed the following additional issues:
1. jurisdiction of the trial court;
2. incorrect facts in the August 19, 2014 order;
3. Petitioner's right to self-representation in criminal cases;
4. Petitioner's right to be tried by a judge whose interests are not adverse to hers;
5. Petitioner's right to not be prosecuted by a City attorney; and
6. Petitioner's right to a speedy trial.[App. 773-76.]
Petitioner appealed to the South Carolina Court of Appeals. [App. 778.] The Court of Appeals ordered Petitioner to obtain new counsel and, when she failed to do so, the court dismissed her appeal. [App. 779.] Petitioner filed a petition for rehearing on January 16, 2015. [App. 780-81.] The Court of Appeals construed the petition as a motion to reinstate but determined that it could not take any action on the motion because Trial Counsel was no longer counsel of record. [Doc. 57-8.] Petitioner also filed a pro se petition for a writ of certiorari in the Supreme Court of South Carolina and moved for the appointment of counsel. [App. 782.] On May 6, 2015, the Supreme Court dismissed the petition and denied Petitioner's motion as moot. [App. 783.] The Court of Appeals issued the remittitur on June 4, 2015. [App. 784.]
Due to Petitioner's “long history of vexatious filings and inappropriate conduct toward” the South Carolina state courts, the Supreme Court of South Carolina has placed restrictions on Petitioner's right to proceed pro se before any of the state's courts. [Doc. 57-17.]
Post-Conviction Relief Proceedings
On March 3, 2016, Petitioner, proceeding pro se, filed an application for post-conviction relief (“PCR”). [App. 785-89.] The PCR application alleged Petitioner was being held in custody unlawfully based on the following grounds and factual allegations, quoted substantially verbatim:
(a) The conviction has severe collateral consequences on me.
The conviction can be pulled under my name and prevented me from getting housing, loans, and can be an obstacle to citizenship.
(b) I was forced to have counsel and he was stunningly ineffective and harmful.
Please see the federal habeas case for more details of how ineffective and harmful Orin Briggs was.
(c) The very existence of Columbia's Municipal Court violates the Federal Constitution.
Please see transcript of 13 December 2013 hearing before Judge Lee.
(d) The ordinance(s) under which I was falsely convicted violate(s) both the federal and S.C. Constitutions in many ways which my forced counsel was too ineffective to raise.[App. 786.] Petitioner also filed three pro se supplements to her application. [App. 790-860.] On July 12, 2016, the court appointed Leah Moody (“PCR Counsel”) to represent Petitioner. [App. 862.] Through PCR Counsel, Petitioner amended her application to include the following grounds:
1. Trial counsel was ineffective by failing to object to/or raise prior to or during trial the following issues:
a. Preemption regarding the definition of rubbish prior to or contemporaneous to any discussions at trial;
b. the City of Columbia's Municipal Court System violates the doctrine of Separation of Powers because the City's executive branch is the same as the judicial branch;
c. the City's actions constituted a taking of the Applicant's land;
d. Applicant's right to a trial by jury of her peers of immigrants and the statutory violation as to the number of jurors required in the venire;
[App. 877.]e. Prejudice based on the Applicant's right to make the final argument to the jury.
A hearing was held on December 7, 2016, at which Petitioner testified on her own behalf. [App. 880-974.] The parties reconvened on June 14, 2017, for testimony from Pretrial and Trial Counsel. [App. 976-1000; Am. App. 1001-54. On June 14, 2018, the PCR court found Trial Counsel was deficient for not raising “the issue of whether the local ordinance was preempted by state law and state Department of Health and Environmental Control (DHEC) regulations” and Petitioner was prejudiced by counsel's failure to move to dismiss on that basis. [Am. App. 1059-60.] The PCR court found “[a]ll other issues” Petitioner raised were “patently without merit.” [Am. App. 1060.] The State filed a motion to reconsider [App. 1064-68], which the PCR court denied on June 29, 2018 [Am. App. 1070].
The Amended Appendix can be found at Docket Entry Number 57-19.
The State appealed [Doc. 57-10] and filed an amended petition for writ of certiorari in the Supreme Court of South Carolina [Doc. 57-11]. The petition asserted the following as the sole issue presented:
Did the PCR court err in finding trial [counsel] ineffective for failing to raise at trial the issue of whether the local City of Columbia rubbish ordinance was preempted by state law and Department of Health and Environmental Control regulations where the City had the power to enact its ordinance, where the ordinance was consistent with the Constitution and general law of the state, and where there is nothing to indicate the intention
of the legislature to preempt the ability of local municipalities to regulate property maintenance?[Doc. 57-11 at 3.] Petitioner, through appellate defender Jessica M. Saxon, filed a return to the State's petition and submitted the following additional sustaining grounds: (1) failure to challenge the applicability of the ordinances to the property and (2) failure to challenge the sufficiency of the jury pool. [Doc. 57-12.] On February 19, 2020, the Supreme Court of South Carolina granted the State's petition, reversed the PCR court's decision, and reinstated the municipal court conviction. [Doc. 57-13.] Petitioner filed a petition for rehearing on April 3, 2020. [Doc. 57-14.] The court denied her petition and issued the remittitur on May 22, 2020. [Docs. 57-15; 57-16.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on February 19, 2020. [Doc. 1.] The Court dismissed her petition on May 1, 2020, while her petition for rehearing was pending before the state supreme court. [Doc. 16.] Petitioner moved for reconsideration and, on January 29, 2021, the Court granted her motion. [Doc. 29.]
Petitioner asserts the following grounds for relief:
As previously explained, Petitioner's grounds for relief include allegations from her original 25-page, typed, single-spaced petition and from her petition on the Court's standard form. [Doc. 86 at 1.]
GROUND ONE: Denial of constitutional right to self-representation
Supporting facts: Petitioner petitioned the Supreme Court of South Carolina to hold that the statutes used to arrest, re-arrest, impose bond, and prosecute her were unconstitutional; however, the “court reacted with a series of ever-growing limitations on [her] right to advocate pro se in S.C. s[t]ate courts.” [Doc. 1-2 at 5.]
GROUND TWO: Ineffective assistance of counsel
Supporting facts: “My forced counsel at pretrial and trial were shockingly ineffective and often harmful. I was denied appellate counsel altogether but was not allowed to prosecute my direct appeals pro se.” [Id. at 7.]
Pretrial counsel was ineffective for: (1) not attending jury qualification [id.]; (2) sending abusive emails insisting that Petitioner was “clearly guilty, ” a “paranoid narcissist, ” and “one step away from needing a criminal responsibility exam, ” all after the City prosecutor had written to pretrial counsel that the City would not accept remediation from Petitioner because “the City need[ed] a conviction” [id.]; (3) not informing Petitioner of the defense strategy other than to pressure her to plead guilty [Doc. 1 at 8, 18-19]; (4) “refus[ing] to argue that the charge, even if proven, can legitimately carry jail time” [id. at 8]; (5) not timely securing an order of substitution [id.]; (6) not sharing his defense strategy with trial counsel [id. at 8, 18-19]; (7) failing to “detect and argue” that the International Property Maintenance Code does not apply to vacant land [id. at 15-16, 17-18]; and (8) failing to subpoena John Ansell as a witness [id. at 19].
Trial counsel was ineffective for: (1) threatening to slap Petitioner and yelling at her to “shut up” [Doc. 1-2 at 7]; (2) refusing to let her testify on redirect, stating, “You already killed yourself with the jury” [id.]; (3) “refus[ing] to argue questions crucial to the charges against her and to the possible sentence in the case underlying No. 13-1280 (4th Cir.)” [Doc. 1 at 9]; (4) failing to “detect and argue” that the International Property Maintenance Code does not apply to vacant land [id. at 15-16]; and (5) failing to understand the underlying facts of the case and timeline of events [id. at 17].
PCR counsel was ineffective for: (1) failing to raise all available claims [id. at 1] and (2) “refus[ing] to file an opposition to the State's motion for reconsideration,
which would have been a good opportunity to brief the additional sustaining grounds” [id. at 10].
PCR appellate counsel was ineffective for failing to raise all additional sustaining grounds in opposition to the State's petition for a writ of certiorari, particularly the ground that the State may not appeal PCR decisions. [Id. at 1, 11.]
GROUND THREE: Denial of statutory right to a sufficient number of venire jurors from which to draw a panel and constitutional right to a jury representative of the community and a jury of peers
Supporting facts: “The trial was called and continued six times because Columbia's Municipal Court (“CMC”) did not summon enough jurors. The S.C. statu[t]e governing jury trials in S.C. magistrate and municipal courts mandates the summoning of at least 40 venire jurors; and S.C. case law re[q]uires the presence of at least 30 qualified jurors from among whom to draw a panel. On [Petitioner's] trial day, there were only 24 venire jurors. That small number, below the statutory and case-law specifications, is statistically impossible to represent the diverse community. Nor were lawfully admitted permanent resident aliens allowed on the jury.” [Doc. 1-2 at 8.]
“When a jury was convened, it was tainted by Officer[] Hempe's and . . . Judge Bogan's actions.” [Doc. 1 at 11.]
GROUND FOUR: Denial of the right to the last argument
Supporting facts: South Carolina was the only state where a criminal defendant may have the last word only if she did not put any evidence in defense, which had the effect of punishing those who tried to mount a complete defense and/or rewarding those who did not. Petitioner challenged this rule at the trial court level and raised it again at the first stage of direct appeal. By the time PCR was granted on other grounds, the Supreme Court of South Carolina had ruled in
State v. Beaty that the older last-argument rule violated due process rights. [Doc. 1-2 at 10-11.]
GROUND FIVE: Sovereignty
Supporting facts: The City of Columbia is not a sovereign and, thus:
(1) the CMC is not a court because only a sovereign may own and operate a court [Doc. 1 at 1-2, 11]; (2) it may not criminalize any conduct [id. at 11]; and (3) the City prosecutor has no authority to prosecute criminal offenses [id.]. [See also Id. at 24.]
GROUND SIX: Conflict of interest
Supporting facts: (1) The City prosecutor and his office “were/are adverse to Petitioner in civil matters” [id. at 11]; (2) “City of Columbia's Council appoints [the CMC] judges who, as agents of Petitioner's adversaries cannot possibly be fair to her and, in fact, were extremely one-sided and unfair” [id.]; and (3) “Petitioner was tried before Carl L. Solomon who represents the City and now shares private office space with Columbia Mayor Steve Benjamin, for whose election and re-election Solomon had campai[g]ned” [id.].
GROUND SEVEN: Denial of Sixth Amendment right to a speedy trial [id.]
GROUND EIGHT: Prosecutorial misconduct
Supporting facts: (1) “Petitioner tried early to show that the charge is baseless as merely marking the boundaries of one's land cannot be an unlawful act[ b]ut [a City employee] told Petitioner ‘Trash is whatever I say trash is' and instructed his subordinate . . . to selectively prosecute Petitioner” [id. at 12]; and (2) the City prosecutor “abused his usurped powers and prevented Petitioner from” arguing selective prosecution before the Municipal Court judge [id. at 12-14].
GROUND NINE: The PCR court correctly decided the preemption issue [id. at 18]
GROUND TEN: The PCR court incorrectly decided the takings issue
Supporting facts: The PCR court “did not heed developments in the law in the full year between [the] ruling from the bench and [the] two-page written order summarily branding everything else as ‘patently without merit.'” [Id. at 24 (internal citation and emphasis omitted).].
GROUND ELEVEN: Decisions granting post-conviction relief should not be appealable
Supporting facts: “SC PCR grants should be unappealable because they descended from habeas proceedings which were historically heard ex parte and because SC's appellate courts['] glacial pace of adjudicating appeals of PCR grants deny the criminal defendant's rights to speedy retrial where the PCR grant is affirmed.” [Id. at 11, 15.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe her 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 her. 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
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.(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.
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 her 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). 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.
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. § 17-27-90; 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 (citing Coleman, 501 U.S. at 735 n.1; Teague, 489 U.S. at 297-98; George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
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
Procedurally Barred Claims
Respondents assert that all but one of Petitioner's grounds are either procedurally defaulted or not cognizable on federal habeas review. The Court agrees that the majority of these claims were not properly raised to the state's highest courts and are now procedurally barred.
Direct Appeal Claims
Petitioner raised Grounds One, Three, Four, Five, Six, Seven, and Eight to the Richland County Court of Common Pleas in her direct appeal, and the court considered the claims contained within those grounds. [See App. 774-75 (Ground One discussed in appellate order on motion to reconsider), 768-70 (Ground Three addressed in order affirming conviction), 770 (Ground Four addressed in order affirming conviction), 758-60 (Ground Five addressed in order affirming conviction), 775-76 (Ground Six addressed in appellate order on motion to reconsider), 776 (Ground Seven addressed in appellate order on motion to reconsider), 766 (Ground Eight addressed in order affirming conviction).] After the Court of Common Pleas affirmed her conviction and denied her motion to reconsider, Petitioner filed a notice of appeal containing Trial Counsel's signature in the South Carolina Court of Appeals. [App. 778.] On November 18, 2014, the Court of Appeals relieved Trial Counsel as counsel of record and ordered Petitioner to obtain new counsel within 30 days or the appeal would be dismissed. See South Carolina Appellate Case Management System, available at https://ctrack.sccourts.org/public/caseSearch.do (uncheck “Exclude Closed Cases” and search by case number 2014-002346) (last visited Jan. 3, 2022). The court dismissed Petitioner's appeal when she failed to comply with its order. [App. 779.] Petitioner filed a petition for rehearing, purportedly through Trial Counsel [App. 780-81], but the court took no action on this motion because Trial Counsel was no longer Petitioner's counsel of record [Doc. 57-8]. Petitioner also filed a pro se petition for a writ of certiorari in the Supreme Court of South Carolina [App. 782], which the court dismissed pursuant to Rule 242(a) and (c), SCACR [App. 783 (stating the Supreme Court “will only review final decisions of the Court of Appeals and a decision is not final for purposes of review until a petition for rehearing or reinstatement has been acted on by the Court of Appeals”)]. Accordingly, because these grounds were not fairly presented to the Supreme Court of South Carolina, they are procedurally barred from federal habeas review absent a showing of cause and actual prejudice. See Coleman, 501 U.S. at 750 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review); Wainwright, 433 U.S. at 87; Matthews, 105 F.3d at 915.
Although the notice of appeal contains Trial Counsel's name and signature [App. 778], Trial Counsel testified during the PCR evidentiary hearing that he represented Petitioner only at trial and not in any of her appeals [App. 998].
See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
None of Petitioner's filings before the Court of Appeals stated the issues she wished to raise.
The petition for writ of certiorari did not state the issues Petitioner wished to raise.
Petitioner also requested the appointment of counsel to represent her in her certiorari action. [App. 782.] The Supreme Court denied Petitioner's request for counsel as moot given the dismissal of her petition. [App. 783.]
Petitioner asserts the procedural rule the state courts relied on to dismiss her appeal was not adequate and independent. [Doc. 70 at 4.]; see Burket v. Angelone, 208 F.3d 172, 183 (4th Cir. 2000) (“[A] federal habeas court may not review constitutional claims when a state court has declined to consider their merits on the basis of an adequate and independent state procedural rule.”). A state procedural rule is adequate if it is regularly or consistently applied by the state courts, Johnson v. Mississippi, 486 U.S. 578, 587 (1988), and it is independent if it does not depend on a federal constitutional ruling, Ake v. Oklahoma, 470 U.S. 68, 75 (1985). Where a state procedural rule is both adequate and independent, it will bar consideration of the merits of claims on habeas review, unless the petitioner demonstrates cause for the default and prejudice resulting therefrom or that a failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
Petitioner frames the procedural rule as a “rule against non-lawyers appearing pro se in [the state] appellate courts” and contends the rule is not consistently applied because the state courts have allowed an unnamed disbarred attorney to represent herself in her appeal. [Docs. 1 at 1; 70 at 4.] However, the record demonstrates that the South Carolina Court of Appeals dismissed Petitioner's appeal not simply because she was pro se, but because she had failed to comply with a court order directing her to obtain new counsel. [App. 779.] As this Court has explained before, Petitioner has no constitutional right to proceed pro se “‘on direct appeal from a criminal conviction.'” Assa'ad-Faltas v. McMaster, No. 3:20-1809-TLW-SVH, 2020 WL 7481739, at *8 (D.S.C. May 26, 2020) (quoting Martinez v. Cal.Ct.App., 4th Appellate Dist., 528 U.S. 152, 163 (2000)), Report and Recommendation adopted by 2020 WL 7425868 (D.S.C. Dec. 18, 2020), aff'd, 853 Fed.Appx. 851 (4th Cir. 2021). Petitioner failed to obtain counsel after the Court of Appeals directed her to do so; therefore, the court dismissed the appeal. [App. 779.] And the Supreme Court of South Carolina dismissed Petitioner's petition for writ of certiorari because the Court of Appeals' decision was not final when Petitioner filed her writ of certiorari. [App. 783 (citing Rule 242(a) and (c), SCACR; Aiken Speir, Inc. v. Henry, 486 S.E.2d 492 (1997)).] Based on this record, the Court finds that the state courts declined to consider their merits on the basis of adequate and independent state procedural rules.
Nor can Petitioner show cause for this court to excuse the default of these claims. “‘[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to” her. Coleman, 501 U.S. at 753. Petitioner fails to meet this standard. Accordingly, the Court finds that Grounds One, Three, Four, Five, Six, Seven, and Eight are procedurally barred.
Additionally, some of these grounds-Ground One, asserting a right to represent herself in a criminal appeal; Ground Three, to the extent it asserts Petitioner was denied her statutory right to a certain number of venire jurors; and Ground Four, asserting she was denied her right to the last argument-do not assert violations of the Constitution, laws, or treaties of the United States, and are thus not cognizable for federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (?In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).
PCR Claims
Petitioner raised some of her claims of ineffective assistance of counsel to the PCR court. [See App. 785-860, 877, 880-974.] The PCR court issued a two-page order finding Trial Counsel “deficient for not addressing the issue of whether the local ordinance was preempted by state law and state Department of Health and Environmental Control (DHEC) regulations” and “[a]ll other issues raised by” Petitioner “patently without merit.” [Am. App. 1059-60.] The State appealed the PCR court's ineffective-assistance-of-counsel finding, thus preserving that issue. [See Doc. 57-11 at 3.] Petitioner then raised two additional sustaining grounds-that Trial Counsel was ineffective for (1) failing to challenge the applicability of the ordinances to Petitioner's property and (2) failing to challenge the sufficiency of the jury pool-thus preserving those claims. [Doc. 57-12 at 13-19]; see I'On, LLC v. Town of Mount Pleasant, 526 S.E.2d 716, 723 (S.C. 2000) (“Of course, a respondent may abandon an additional sustaining ground . . . by failing to raise it in the appellate brief.”). However, any remaining claims that were raised to the PCR court but were not raised in the PCR appeal are defaulted.
Petitioner's Ground Two alleges ineffective assistance of various counsel, and Grounds Nine and Ten assert that the PCR court correctly and incorrectly decided various ineffective-assistance-of-counsel claims.
Petitioner argues her claims are not defaulted because South Carolina court rules do not require a respondent to assert additional sustaining grounds on PCR appeal. [Doc. 71 at 2-4.] Although a respondent is not required to brief additional sustaining grounds to have those grounds addressed in the PCR appeal, she must do so to properly present those grounds to the state's highest court and, thus, preserve the issues for federal habeas review. See I'On, 526 S.E.2d at 723; see also Matthews, 105 F.3d at 915. Here, Petitioner bypassed her opportunity to raise these claims to the state's highest court when she failed to raise them as additional sustaining grounds during the State's PCR appeal. Petitioner also asserts “the Fourth Circuit's law is: a winning S.C. PCR applicant preserves for federal review her claims without listing additional sustaining grounds to state appellate court. She need only have presented her grounds to the state PCR trial court.” [Id. at 4 (emphases omitted).] However, Petitioner does not support that proposition with any case law or other citation.
To the extent Petitioner blames the default on her PCR appellate counsel's failure to list or argue all additional sustaining grounds [see, e.g., Docs. 1 at 1; 71 at 2-3], ineffective assistance of PCR appellate counsel cannot excuse procedural default, Johnson v. Warden of Broad River Corr. Inst., No. 12-7270, 2013 WL 856731, at *1 (4th Cir. Mar. 8, 2013) (holding PCR appellate counsel error cannot constitute cause under Martinez exception); cf. Davila v. Davis, 137 S.Ct. 2058, 2064-65 (2017) (declining to extend Martinez exception to claims of ineffective assistance of appellate counsel). Accordingly, the Court finds that Ground Ten and portions of Ground Two are procedurally barred.
Additional Default Issues
Petitioner further argues the Court should apply the “look through” doctrine from Wilson v. Sellers, 138 S.Ct. 1188 (2018), to find any claim raised during her municipal, circuit, or PCR court proceedings fully exhausted. [Docs. 40; 41; 43.] Wilson concerns how a federal habeas court discerns the reasoning underlying a state court's adjudication of a claim when the state court decision “does not come accompanied with . . . reasons, ” such as when a state supreme court decision consists of only “a one-word order.” Id. at 1192. In that circumstance, federal habeas courts “look through” the unexplained decision and presume it adopted the reasoning of the last decision to expressly analyze the relevant issues. Id. However, nothing in Wilson changed the requirement that “a habeas petitioner must fairly present [her] claim to the state's highest court.” Matthews, 105 F.3d at 911 (emphasis added).
Petitioner also contends she exhausted her claims through pro se filings to the Supreme Court of South Carolina that Respondents did not include in the record. [Doc. 70 at 1-5.] Petitioner further admits the state court did not consider these filings. [Id. at 5.] The court would not have considered Petitioner's pro se filings in the PCR appeal because Petitioner was represented by counsel. See State v. Stuckey, 508 S.E.2d 564, 564 (S.C. 1998) (“[Because] there is no right to hybrid representation, substantive documents filed [pro se] by a person represented by counsel are not accepted unless submitted by counsel.”). This is an independent and adequate state court rule, thus precluding review of the merits by this Court.
Non-Cognizable Claim
In Ground Eleven, Petitioner contends that decisions granting PCR applications should not be appealable to any of the state courts. This claim is not a cognizable federal habeas claim because it does not challenge Petitioner's conviction or sentence and, instead, concerns South Carolina's PCR procedure. See 28 U.S.C. § 2254(a) (a petitioner may obtain relief from a state court judgment “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States”); Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008) (holding that there is “no federal constitutional right to post-conviction proceedings in state court” and, thus, “even where there is some error in state post-conviction proceedings, a petitioner is not entitled to federal habeas relief because the assignment of error relating to those post-conviction proceedings represents an attack on a proceeding collateral to detention and not to the detention itself”). Because this ground does not assert a violation of the Constitution, laws, or treaties of the United States, it is not cognizable for federal habeas review. See Estelle, 502 U.S. at 68.
Petitioner also appears to assert Ground Eleven as a § 1983 claim that South Carolina's Uniform Post-Conviction Procedure Act (“the Act”) is unconstitutional. [Doc. 1 at 11.] Petitioner indicated she does not seek § 1983 damages for her conviction but seeks “both § 2254 re-invalidation of that conviction and a § 1983 declaration that §§ 17-27-100 and 110, SC Code of Laws, and Rule 243(a), SCAR . . . are unconstitutional as violating Double Jeopardy in cases where a PCR grant is functionally equivalent to acquittal and of the Sixth Amendment right to speedy retrial where the PCR only grants a new trial but the State's appeal interposes an average of three years' delay.” [Doc. 83 at 1 (emphasis omitted).] However, Petitioner has named the State of South Carolina and the City of Columbia as the purported Defendants to her § 1983 claim, and the State of South Carolina and the City of Columbia are not persons subject to suit under § 1983. See, e.g., Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“We hold that neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); Garvin v. Owen, No. 2:09-cv-0202-HMH-RSC, 2009 WL 653007, at *4 (D.S.C. Mar. 12, 2009) (holding that Aiken County and Aiken City are not “persons” under § 1983), aff'd, 340 Fed.Appx. 169 (4th Cir. 2009). Accordingly, to the extent Petitioner attempts to raise Ground Eleven as a § 1983 claim, Respondents are entitled to summary judgment.
Because the Court finds that the State of South Carolina and City of Columbia are not persons subject to suit under § 1983, the Court declines to address Respondents' remaining arguments regarding Petitioner's § 1983 claim or whether it is appropriate for Petitioner to bring this claim as a § 1983 claim. However, the Court notes that her allegation that the Act violates the Sixth Amendment right to speedy trial has been addressed previously by the Court. See Assa'ad-Faltas, 2020 WL 7481739, at *9.
For all of these reasons, Respondents' motion for summary judgment should be granted as to as to Grounds One, Three, Four, Five, Six, Seven, Eight, Ten, and Eleven and as to the claims in Ground Two not raised to the Supreme Court of South Carolina on PCR appeal.
Merits of Remaining Claims
Petitioner's remaining claims assert that Trial Counsel was ineffective for (1) failing to challenge the applicability of the ordinances to Petitioner's property, (2) failing to challenge the sufficiency of the jury pool, and (3) failing to argue the local ordinance was preempted by state law and DHEC regulations.
Under the AEDPA, a federal court may not grant habeas relief unless the underlying state court decision was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court, id. § 2254(d)(2). The Supreme Court has held the “contrary to” and “unreasonable application of” clauses present two different avenues for relief. Williams, 529 U.S. at 405. The Court stated there are to instances when a state court decision will be contrary to Supreme Court precedent:
A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . . A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.Id. at 405-06. Additionally, a state court decision is an unreasonable application of Supreme Court precedent when the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. at 407-08; see also Richter, 562 U.S. at 102 (“Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. . . . It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”).
When evaluating a habeas petition based on a claim of ineffective assistance of counsel, assuming the state court applied the correct legal standard-the Supreme Court's holdings in Strickland-“[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Richter, 562 U.S. at 101. “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.; see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (stating judicial review of counsel's performance is “doubly deferential when it is conducted through the lens of federal habeas”). Consequently, 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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the habeas court must determine whether it is possible for fairminded jurists to disagree that the arguments or theories supporting the state court's decision are inconsistent with Supreme Court precedent. Id.
In Strickland v. Washington, the United States Supreme Court established that to challenge a conviction based on ineffective assistance of counsel, a prisoner must prove two elements: (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. 466 U.S. 668, 687 (1984). To satisfy the first prong, a prisoner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. To satisfy the second prong, a prisoner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The Supreme Court has cautioned that “[j]udicial scrutiny of counsel's performance must be highly deferential, ” and “[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
Failure to Challenge Applicability of Ordinances to Property
Petitioner asserts Trial Counsel was ineffective for failing to argue that the International Property Maintenance Code (“IPMC”) does not apply to vacant land. [Doc. 1 at 15-16.] Respondents submit this claim is defaulted and lacks merit. [Doc. 89 at 2, 5-7.]
Petitioner presented this claim in one of her supplements to her PCR application [App. 790], and referenced it during the PCR evidentiary hearing [App. 915, 962]. The PCR court did not specifically address the claim in either the oral or written order. [See Am. App. 1049-54, 1059-60.] And, although Petitioner presented this issue as an additional sustaining ground in her return to the State's petition for a writ of certiorari [Doc. 57-12 at 13-17], the Supreme Court did not address it [see Doc. 57-13]. Petitioner requested rehearing based in part on the court's failure to address her additional sustaining grounds, including whether trial counsel was ineffective for failing to challenge the applicability of the ordinances to her property [Doc. 57-14 at 5-9], but the court summarily denied her request [Doc. 57-15]. Accordingly, it is unclear what the reasoning was behind the state court's decision. Therefore, this Court “must determine what arguments or theories . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Richter, 562 U.S. at 102; see also Id. at 98 (“[D]etermining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining [its] reasoning.”).
Petitioner was charged with violations of City of Columbia Ordinance Numbers 8-41 and 8-32 and IPMC § 307.1. [App. 614.] Petitioner asserts the IPMC does not apply to vacant land and thus did not apply to her property, an argument she contends Trial Counsel should have raised to the trial court. Section 307.1 of the IPMC provides that “[a]ll exterior property and premises, and the interior of every structure, shall be free from any accumulation of rubbish or garbage.” IPMC § 307.1 (2006) (emphasis added). The IPMC defines “exterior property” as “[t]he open space on the premises and on adjoining property under the control of owners or operators of such premises.” Id. § 202. “Premises” is defined as “[a] lot, plot or parcel of land, easement or public way, including any structures thereon.” Id. Neither of these definitions requires that a building exist on the land. Further, the IPMC's scope includes “all existing residential and nonresidential structures and all existing premises, ” id. § 101.2 (emphasis added), and it expressly applies to “all matters affecting or relating to structures and premises, ” id. § 102.1 (emphasis added).
Petitioner supports her argument by citing to Merriam-Webster's dictionary definition of “premises.” [Doc. 91 at 8.] However, where the IPMC defines a term, that definition controls when interpreting its provisions. See IMPC § 201.1 (“Unless otherwise expressly stated, the following terms shall, for the purposes of this code, have the meanings shown in this chapter.”). Thus, under the IPMC, even vacant land falls within the definition of exterior property and premises, and Trial Counsel had no basis on which to argue § 307.1 did not apply to Petitioner's property. Trial Counsel cannot be ineffective for failing to raise a meritless argument. Thus, this Court cannot find that the state court decision was contrary to or an unreasonable application of federal law or that it was based on an unreasonable determination of the facts.
For these reasons, Respondents' motion for summary judgment should be granted as to Petitioner's claim in Ground Two that Trial Counsel was ineffective for failing to challenge the applicability of the ordinances to her property.
Failure to Challenge Sufficiency of the Jury Pool
Petitioner asserts Trial Counsel was ineffective for failing to challenge the sufficiency of the jury pool, which she contends was deficient because she was denied her statutory right to a sufficient number of venire jurors from which to draw a panel and her constitutional right to a jury representative of the community and a jury of her peers, specifically lawfully admitted permanent resident aliens. [Doc. 1 at 21-24; see also Doc. 1-2 at 8 (raising a direct claim that Petitioner was denied her statutory right to a sufficient number of jurors and her constitutional right to a jury representative of the community and of her peers).] However, when Petitioner raised the issue as an additional sustaining ground to the Supreme Court of South Carolina, she asserted only that Trial Counsel was ineffective for failing to object to the number of jurors present. Accordingly, her claim that Trial Counsel was ineffective for failing to object to the jury pool because it did not include lawfully admitted permanent resident aliens is procedurally barred, and the Court addresses this claim only with respect to the number of jurors in the jury pool.
Petitioner raises her challenge to the jury pool as both an ineffective assistance of counsel claim for Trial Counsel's failure to challenge the jury pool [Doc. 1 at 21-24] and as a direct claim that her rights were violated by the deficient jury pool [Doc. 1-2 at 8]. As previously indicated, the direct claim in Ground Three is procedurally barred because it was not fairly presented to the Supreme Court of South Carolina and Petitioner cannot establish cause to excuse the default. With respect to the ineffective-assistance-of-counsel claim regarding the failure to challenge the jury pool, although the Court did not previously list this as an ineffective-assistance-of-counsel claim when it construed Petitioner's grounds for relief [Doc. 86 at 1-5], it is now clear that Petitioner intended to raise this as an ineffective-assistance-of-counsel claim [Doc. 1 at 21-24]. Because both parties have also addressed it as an ineffective-assistance-of-counsel-claim in their briefings regarding summary judgment, the Court will also address this claim.
Although her additional sustaining ground argued that she had a constitutional right to a jury that is representative of the community where she resides [Doc. 57-12 at 18], this issue was raised to the Supreme Court in the context of having enough prospective jurors in the jury pool to result in a jury that is representative of her peers [id. at 18-19].
On this issue, the PCR court found:
[Ground] D is the right to a trial of jury by her peers of immigrants and the statutory violation. That's in direct conflict with what our own Constitution and United States Constitution says about qualifications of jurors. I'm not free to go opposed to that as a trial judge. So, [I] do not regard that as a valid issue.[Am. App. 1052.] According to the record, the jury was qualified the Monday before Petitioner's trial, and Trial Counsel moved to strike the jury on grounds other than the number of jurors in the pool. [See App. 125-26, 212-19, 232.] At the PCR evidentiary hearing, Trial Counsel testified that he took Petitioner's case with less than 24-hours' notice because he had represented her off and on for about 20 years, mostly pro bono, and was familiar with the property and the charges against her. [App. 980-81.] Regarding this particular issue, Trial Counsel stated he
made the decision that - - I think we were six or seven, eight [jurors] short or something like that. I just felt like that that judge wasn't going to give it the time of day and on appeal it, it would not be a definitive reason for the appellate court to send it back to the trial court.[App. 989.] Trial Counsel testified several times that he felt the trial judge was hostile toward him and Petitioner. [See App. 989, 991-96.] He also testified to a general practice of limiting himself to five or six arguments due to a belief that “the more issues you discuss, the more likely you are to weaken your strongest arguments.” [App. 992.]
The record before the Court does not include a transcript of the jury qualification or otherwise indicate how many jurors were empaneled.
Based on this testimony alone, the PCR court could have reasonably found Trial Counsel made a reasonable tactical decision in declining to challenge the sufficiency of the jury pool. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, 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.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” (internal citation omitted)). Moreover, the South Carolina Court of Appeals has interpreted the same language applicable here and found
Additionally, Petitioner's trial had already been continued a number of times [see Doc. 1-2 at 8], and the municipal court had been instructed to move Petitioner's cases [App. 31]. The trial court had also already denied Trial Counsel's motion for continuance. [App. 140.]
there is no provision . . . specifically establishing a minimum number of jurors required to be present in the jury pool before jury selection can proceed. The plain wording of [the statute] requires only that a person selected by the presiding [judge] draw a minimum of forty jurors to serve for a one week term. It does not require that forty jurors be present and available in the jury pool before jury selection can proceed for a trial.State v. Johnson, 721 S.E.2d 786, 790 (S.C. Ct. App. 2012). The court emphasized that “the plain terms of the statute require only that forty individual names be drawn and ordered to appear” and that “[t]he legislature has set forth no specified number of jurors required to be present and available in the jury pool before jury selection can proceed.” Id. at 791. Thus, Trial Counsel had no legal basis on which to challenge the number of jurors present on the day of jury selection, and he cannot be found ineffective for failing to make a meritless argument. Petitioner has failed to show the PCR court unreasonably decided this claim, and Respondents' motion for summary judgment should be granted as to Petitioner's claim that Trial Counsel was ineffective for failing to challenge the sufficiency of the jury pool.
Johnson addressed S.C. Code Ann. §§ 22-2-80-120, which govern the drawing and composing of juries in magistrate courts and are incorporated by reference into § 14-25-165. See S.C. Code Ann. § 14-25-165(a)(1) (“The drawing and composing of juries for single trials or terms of court must be conducted, with necessary changes, according to the statutes relating to the drawing and composing of juries in magistrates courts, except as otherwise specifically provided by this chapter.”).
Failure to Raise the Preemption Issue
Petitioner asserts that the PCR court correctly decided that Trial Counsel was ineffective for failing to argue that the city's definitions of rubbish and sanitary conditions were preempted by the state law. [Doc. 1 at 18.]
The PCR court ruled on this issue from the bench, stating:
. . . I am going to grant the petition for post-conviction relief based on ground A, and that is the ineffectiveness of counsel in not putting forth the argument of preemption with respect to the state law with regard to the definition of rubbish and the definition of sanitary conditions.
Judge Lee frames the issue this way. It's the very first issue she discusses on page 3 of her order of August the 19th, 2014. She discusses the issue of - - that was a direct appeal issue, which is whether the city's definition of rubbish is preempted by state law. That's a very valid, and I think the only valid, ground[] in the recited grounds, and Judge Lee says this:
The only mention of preemption during any proceedings was when appellant briefly stated the issue without any specificity of whether the state law preempted the field or not in her motion for a new trial. It was not presented directly as the case was being tried, only on post-trial motion. This argument was not specific - - not made specifically for the definition of rubbish, and it seemed it was made in relation to whether state law preempts the city's ability to criminalize the conduct.
And Judge Lee concludes:
Appellant did not raise the issue of preemption of the definition prior to or during the trial, and there was no specific objection regarding preemption contemporaneous to any discussions at the trial.
Therefore, this argument was not sufficiently preserved for appeal.
Now, that is in part a failing of both counsel, but it is clear that the strategy of her original counsel, Mr. Lupton, was to pursue an attack on the technical sufficiency of the city's ordinance, and he focused on the definition of the crime for which she was charged. Although it is not clear in the material I have whether his focus was directly on what Judge Lee talked about, what I am talking about, and what you, Ms. Moody, clarified in the material you filed, which is the preemption argument, and that is I don't know how the court would - - how the - - a higher court [would] look at that. But it is a very valid argument and might have been and I think was (A) the most powerful argument to be made but (B) the only really valid one to be made.[Am. App. 1049-1051.] Additionally, in the written order of dismissal, the PCR court stated:
This Court conducted a post-conviction relief hearing on this matter and attempted to focus in on the only issue of merit: whether Applicant's counsel was deficient for not addressing the issue of whether the local ordinance was preempted by state law and state Department of Health and Environmental Control (DHEC) regulations. This Court finds Counsel was deficient for not raising this issue at trial. A Motion to Dismiss based on this issue could have changed the outcome of the case and the failure to make said motion prejudiced Applicant.[Am. App. 1060.] The Supreme Court of South Carolina reversed the PCR court's decision, reasoning:
Respondent's argument that the City's definition of rubbish is preempted by DHEC's definition is without merit. The City's ordinances were adopted pursuant to state statute and are not preempted by DHEC regulations. See S.C. Code Ann. § 6-9-60 (2004 & Supp. 2019); Town of Hilton Head Island v. Fine Liquors, Ltd., . . . 397 S.E.2d 662, 664 ([S.C.] 1990) (“[F]or there to be a conflict between a state statute and a municipal ordinance ‘both must contain either express or implied conditions which are inconsistent or irreconcilable with each other. Mere differences in detail do not render them
conflicting. . . . Where no conflict exists, both laws stand.'” (quoting McAbee v. S. Ry. Co., . . . 164 S.E.2d 444, 335 ([S.C.] 1932))). Further, there is no evidence the General Assembly intended DHEC's definition of rubbish to preempt the field of residential property maintenance or municipal code enforcement in regard to rubbish, and Respondent fails to identify any authority demonstrating intended or actual preemption in this area. See Bugsy's v. City of Myrtle Beach, . . . 530 S.E.2d 890, 893 ([S.C.] 2000) (stating that to preempt an entire field, “an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way”). Accordingly, trial counsel was not deficient in failing to raise this argument. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating in order to establish a claim of ineffective assistance of counsel, a PCR applicant must prove (1) counsel's performance was deficient and (2) that deficient performance prejudiced the applicant's case). Therefore, the PCR court's decision finding trial counsel ineffective in failing to present the preemption argument at trial is reversed, and the municipal court conviction is reinstated.[Doc. 57-13 at 2-3 (some alterations in original).]
The Court has carefully reviewed all of Petitioner's filings and, although Petitioner asserts the PCR court correctly decided the preemption issue, she has failed to explain how the Supreme Court of South Carolina's decision unreasonably applied Strickland or was based on an unreasonable determination of the facts. [See Doc. 1 at 18.] Petitioner therefore offers no substantive rebuttal to this Court's mandated (1) great deference to the state court's decision, especially here where it turned on interpretation of state law, and (2) presumption that Trial Counsel acted reasonably. Accordingly, Respondents' motion for summary judgment should be granted as to Ground Nine.
Petitioner's Motions
Petitioner has moved (1) to strike Respondents' return and motion for summary judgment, (2) for default judgment on her § 1983 claim that PCR grants should be unappealable, (3) for summary judgment, (4) for an evidentiary hearing, and for “[h]umanitarian [a]ccommodation in [d]ocument [f]iling.” [Docs. 70, 80, 81, 92.]
Motion to Strike, for Default Judgment, and for Summary Judgment
Petitioner moves to strike Respondents' return and memorandum and motion for summary judgment, for “[c]onsequent [j]udgment by [d]efault in her [f]avor, ” and for summary judgment in her favor. [Doc. 70.]
Rule 12(f) of the Federal Rules of Civil Procedure allows a court, acting either on its own or on motion made by a party, to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Whether to grant a motion to strike under Rule 12(f) is within the sound discretion of the court, see GTSI Corp. v. Wildflower, Int'l, Inc., No. 1:09cv123(JCC), 2009 WL 2160451, at *4 (E.D. Va. July 17, 2009), but striking material under Rule 12(f) is generally disfavored because it is a drastic remedy and motions to strike are “‘often sought by the movant simply as a dilatory tactic, '” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 at 647 (2d ed. 1990)). However, “‘a defense that might confuse the issues in the case and would not, under the facts alleged, constitute a valid defense to the action can and should be deleted.'” Id. (quoting Wright & Miller, § 1381 at 665).
Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he Federal Rules of Civil Procedure . . . may be applied to a proceeding under these rules.”
Rule 55(a) of the Federal Rules of Civil Procedure states that the clerk must enter a party's default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” After the clerk enters default, the opposing party may seek a default judgment under Rule 55(b). The Fourth Circuit Court of Appeals has held that “[a]lthough the clear policy of the Rules is to encourage dispositions of claims on their merits, trial judges are vested with discretion, which must be liberally exercised, in entering [default] judgments and in providing relief therefrom.” United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982) (internal citation omitted).
Petitioner's motion fails to clearly define what she believes the court should strike from Respondents' filings or why anything should be stricken. [See generally Doc. 70.] To the extent Petitioner asserts the Court should strike the entirety of Respondents' pleading and motion, she fails to articulate a valid reason for doing so. To the extent Petitioner's requests to strike and for default judgment arise out of Respondents' failure to address each of her grounds for relief in the return, the Court and Respondents have remedied that issue and allowed the Court to properly and expeditiously consider Petitioner's claims. [See Docs. 70 at 1 (“Respondents . . . admit[] at p 8, note 4, intentionally ignoring ‘over one hundred twenty (120) different points discussed by Petitioner. Respondents have not addressed many of the claims in this [ECF 1].'” (emphases and internal citation omitted)); 86 (ordering Respondents to brief the remainder of Petitioner's claims); 89 (Respondents' brief in compliance with the Court's Order).] And, for the reasons discussed above, Petitioner has not shown entitlement to judgment as a matter of law. Petitioner's motion to strike and for default and summary judgment should, therefore, be denied.
Motion for an Evidentiary Hearing
Petitioner moves for an evidentiary hearing if the Court does not grant her motion for default or summary judgment. [Doc. 80 at 1.] Respondents oppose Petitioner's motion. [Doc. 82 at 4.]
Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides, “If the petition is not dismissed, the judge must review the answer, any transcripts and records of state-court proceedings, and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted.” Under the AEDPA, evidentiary hearings are generally prohibited. 28 U.S.C. § 2254(e)(2); see Cullen v. Pinholster, 563 U.S. 170, 181-83 & n.4 (2011) (recognizing both that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits” and also that for claims for which the factual basis was not developed in state court “§ 2254(e)(2) bars a federal court from holding an evidentiary hearing, unless the applicant meets certain statutory requirements”). However, the statute itself creates an exception to the general rule if the petitioner can show that the claim relies on a new, retroactive rule of constitutional law or “a factual predicate that could not have been previously discovered through the exercise of due diligence, ” and that “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2).
Thus, the Fourth Circuit has recognized:
A petitioner who has diligently pursued his habeas corpus claim in state court is entitled to an evidentiary hearing in federal court, on facts not previously developed in the state
court proceedings, if the facts alleged would entitle him to relief, and if he satisfies one of the six factors enumerated by the Supreme Court in Townsend v. Sain, 372 U.S. 293, 313 . . . (1963).Juniper v. Zook, 876 F.3d 551, 563 (4th Cir. 2017) (internal quotation marks and citation omitted). The six Townsend factors are:
(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.Townsend, 372 U.S. at 313. Petitioner has failed to show she is entitled to an evidentiary hearing on any of her preserved claims under this standard. Further, for the reasons stated above, Petitioner has failed to show cause and prejudice to excuse the procedural default of her other claims and is thus not entitled to an evidentiary hearing on those grounds. Petitioner's motion for an evidentiary hearing should therefore be denied.
Motion for Humanitarian Accommodation in Document Filing
In her motion for humanitarian accommodation in document filing, Petitioner seeks permission to file documents electronically because she has “suffered physical pain and added expense in having to travel to the distant U.S. Courthouse in Columbia or to stand in line in the closer U.S. post office to mail her submissions in this case by certified U.S. mail to this District's Greenville office.” [Doc. 92 at 1 (emphasis omitted).] She also asserts the United States Postal Service has been unreliable. [Id.] The Honorable R. Bryan Harwell, Chief U.S. District Judge for the District of South Carolina, has recently denied motions filed by Petitioner seeking the same relief in In Re District Clerk's Office Operations, No. 3:21-mc-00341-RBH, Doc. 24. The undersigned recommends denying Petitioner's motion for humanitarian accommodation in document filing for the same reasons outlined in Chief Judge Harwell's Order.
Motion for Judicial Notice of Intervening Events
In her motion for judicial notice of intervening events, Petitioner asks the Court to take judicial notice of “New York City's grant of suffrage to lawfully-residing aliens” and the South Carolina Court of Appeals' denial of the State's petition for writ of certiorari in one of Petitioner's other state PCR actions. [Doc. 97.] Petitioner asserts that the New York City's grant of suffrage establishes that her conviction underlying this habeas action violates her Sixth Amendment right to “a jury of her lawful-immigrant[] peers.” [Id.] And she contends that the denial of the State's petition for writ of certiorari “proves that denial of [her] right to pro se advocacy in [South Carolina] state courts . . . is unjustified” and “proves the frivolity and unconstitutionality of letting [the State] appeal PCR grants.” [Id.] The Court has already concluded that Petitioner's Ground One, asserting that she was denied her constitutional right to self-representation, is procedurally barred; that Ground Three, asserting in part that she was denied her constitutional right to a jury of peers, is procedurally barred; and that Ground Eleven, asserting that decisions granting post-conviction relief should not be appealable, is not a cognizable federal habeas ground. Nothing in Petitioner's motion for judicial notice of intervening events changes this Court's analysis with respect to Grounds One, Three, and Eleven. Accordingly, Petitioner's motion should be denied.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Petitioner's motions to strike and for default and summary judgment [Doc. 70], for an evidentiary hearing [Doc. 80], for humanitarian accommodation in document filing [Doc. 92], and for judicial notice of intervening events [Doc. 97] be DENIED; Respondents' motion for summary judgment [Doc. 58] be GRANTED; and the Petition be DENIED.
IT IS SO RECOMMENDED.