Opinion
C. A. 22-159-TMC-PJG
11-09-2022
Taquan L. Brown, Petitioner, v. Warden, Evans Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Petitioner Taquan L. Brown, a self-represented state prisoner, filed a 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 Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. (ECF No. 43.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Brown of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. (ECF No. 45.) Brown filed a response in opposition (ECF No. 47), and Respondent replied (ECF No. 51). Having carefully considered the parties' submissions and the record in this case, the court finds that Respondent's motion should be granted and the Petition be denied.
BACKGROUND
Brown was indicted in December 2013 by a Colleton County Grand Jury for murder, obstruction of justice for withholding information in a murder investigation, and possession of a weapon during the commission of a violent crime. The charges arose from the November 2013 shooting death of Maurice Kemp at Brown's home. Before trial, Brown moved to dismiss the case pursuant to the Protection of Persons and Property Act, SC Code §§ 16-11-410, et seq., arguing that he was entitled to immunity from prosecution under the Act because the shooting was in self- defense. The Colleton County Court of General Sessions found that Brown failed to meet his burden of showing he was entitled to immunity under the Act. Brown then proceeded to trial on the charges in June 2015 and was convicted of the lesser included offense of voluntary manslaughter as well as obstruction of justice and possession of a weapon during the commission of a violent crime. The trial court sentenced Brown to consecutive terms of twenty-five years' imprisonment for voluntary manslaughter and five years' imprisonment for the weapons charge, and a concurrent term of ten years' imprisonment for obstruction of justice.
Brown appealed his convictions and sentences to the South Carolina Court of Appeals, which affirmed his convictions and sentences in an unpublished opinion filed July 26, 2017. Brown filed a notice of intent to file a petition for a writ of certiorari in the South Carolina Supreme Court, but later withdrew the notice. The remittitur from the Court of Appeals was issued on December 15, 2017.
Brown filed an application for post-conviction relief (“PCR”) on January 16, 2018 in the Colleton County Court of Common Pleas. The PCR court appointed counsel for Brown and the State filed a return and motion for a more definite statement. Before the PCR court scheduled a hearing on Brown's application, Brown filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court in January 2019. (C/A No. 0:19-228-TMC.) The court dismissed the petition because Brown failed to exhaust his state remedies prior to filing the petition. In January 2020, Brown filed a second petition for a writ of habeas corpus in this court. (C/A No. 0:19-3362-TMC.) The court summarily dismissed the second petition, again for Brown's failure to exhaust his state remedies. On August 8, 2021, the PCR court held an evidentiary hearing on Brown's PCR application.
Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court on January 18, 2022. Noting that Brown's petition presented exhausted and unexhausted grounds for relief, the court issued an order to show cause why Brown's petition should not be stayed pursuant to Rhines v. Weber, 544 U.S. 269 (2005), pending the exhaustion of his state administrative remedies-specifically, his PCR claims. (ECF No. 14.) The court also provided Brown the opportunity to amend his petition to abandon his unexhausted claims by filing an amended petition that included only exhausted claims. The court warned Brown that if he amended the petition to include only exhausted claims, he would likely be barred from seeking federal review of the unexhausted claims after they were adjudicated by the state PCR court. Brown filed an amended petition. (ECF No. 19.)
On September 22, 2022, after the parties in this case briefed the instant summary judgment motion, the PCR court issued an order of dismissal of Brown's 2018 PCR application. Brown's appeal of the PCR court's order to the South Carolina Court of Appeals remains pending.
FEDERAL HABEAS ISSUES
The Amended Petition for a writ of habeas corpus raises the following issues (labeled Grounds One, Two, Three, Five, and Six), quoted here verbatim:
Petitioner withdrew his claims in Ground Four, which asserted multiple separate claims of ineffective assistance of trial counsel.
| Ground One: | Due Process violation. State failed as a matter of law to disprove Petitioner's claim of self-defense pursuant to S.C. Code Ann. 16-11-410. |
| Supporting Facts: | State failed to offer any proof to disprove Petitioner's claim of self-defense under the Protection of Persons and Property Act. There is no evidence on record to support conviction of voluntary manslaughter, and weapons charge. |
| Ground Two: | Petitioner is entitled to immunity from prosecution under Protection of Persons and Proper Act. |
| Supporting Facts: | Petitioner is entitled to immunity from prosecution for murder under the Act because he was without fault in bringing on the difficulty, and actually and reasonably believed he was in imminent danger of losing his life or sustaining serious bodily injury. |
| Ground Three: | Newly discovered evidence. |
| Supporting Facts: | After the trial of the case new evidence of material facts not previously presented and heard that requires vacation of conviction. Witness Wiley James admitted to removing victims gun. Dr. Erin Presnell the forensic pathologist statement and report. She didn't find any stippling or tattooing in victim's GSW. Which disproves the State's theory. |
| Ground Five: | Violation of the Double Jeopardy Clause. |
| Supporting Facts: | The Sentence imposed by the court on the offense of PWDCVC subject Petitioner to multiple punishment. Pursuant to the 5th Amendment of the U.S. Constitution, and S.C. Code of law §§ 24-13-40 credit for time served prior to sentencing must be given against each offense. The sentence as it stands stop Petitioner's sentence which started on 11/22/13, and fail to give full credit of 580 days against causing the sentence to exceed the maximum authorized by law. |
| Ground Six: | Due Process Violation. |
| Supporting Facts: | The trial court was not fair and impartial at any stage in this case. The castle doctrine hearing, the court erred in denying Petitioner's motion for immunity under the act. And the court erred in denying Petitioner's motion for directed verdict where the undisputed evidence showed that Petitioner shot the deceased in lawful self-defense. |
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Habeas Corpus Standard of Review
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas corpus relief unless the decision was “contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States,” or the decision “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)(1), (2). When reviewing a state court's application of federal law, “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, 410 (2000); see also White v. Woodall, 572 U.S. 415, 419 (2014) (describing an “unreasonable application” as “objectively unreasonable, not merely wrong” and that “even clear error will not suffice”) (internal quotation marks and citation omitted); Harrington v. Richter, 562 U.S. 86, 100 (2011); Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005); McHone v. Polk, 392 F.3d 691 (4th Cir. 2004). 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).
“A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White, 572 U.S. at 419-20 (stating that “ ‘[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' ”) (alteration in original) (quoting Harrington, 562 U.S. at 103). Under the AEDPA, a state court's decision “must be granted a deference and latitude that are not in operation” when the case is being considered on direct review. Harrington, 562 U.S. at 101. Moreover, review of a state court decision under the AEDPA standard does not require an opinion from the state court explaining its reasoning. See id. at 98 (finding that “[t]here is no text in [§ 2254] requiring a statement of reasons” by the state court). If no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. Id. Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories supported or could have supported the state court's decision; and then (2) ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of the United States Supreme Court. Id. at 102. “If this standard is difficult to meet, that is because it was meant to be.” Id. Section 2254(d) codifies the view that habeas corpus is a “ ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Id. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
C. Exhaustion Requirements
A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims 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); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that “when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”). To exhaust his available state court remedies, a petitioner must “fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim.” Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider only those issues which have been properly presented to the state appellate courts with jurisdiction to decide them. Generally, a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth, 377 F.3d at 447-48; see also Coleman v. Thompson, 501 U.S. 722 (1991). For a procedurally defaulted claim to be properly considered by a federal habeas court, the petitioner must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
D. Respondent's Motion for Summary Judgment
1. Cognizable Federal Habeas Claims
Respondent argues that Brown's Grounds One, Two, and Three are not cognizable claims that can justify relief under 28 U.S.C. § 2254. The court agrees, and also concludes that Ground Six is not cognizable.
A district court may entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“It is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions.”).
In Grounds One and Two, Brown argues he is entitled to immunity under South Carolina's Protection of Persons and Property Act. The two grounds have only a slight distinction in their analyses. In Ground One, Brown argues the State failed to put forth evidence to show that he did not act in self-defense, and in Ground Two, Brown argues the evidence presented at the hearing showed that he was entitled to immunity. Regardless, these claims do not raise an issue of federal law because they merely assert that the trial court erred in not granting Brown immunity from prosecution, and that immunity derives from state law. See generally Estelle, 502 U.S. at 62 (stating that an issue of state law does not implicate the Due Process Clause unless the error of state law so infected the entire trial that the resulting conviction violates due process). In Ground One, Brown argues the lack of evidence violated his right to due process, but that argument is conclusory because he does not explain what evidence was submitted during the immunity hearing. See, e.g., Spencer v. Murray, 18 F.3d 237, 239 (4th Cir. 1994) (explaining that merely labeling a ground for relief as a denial of due process does not transform an issue of state law into a federal habeas issue). Nor does he explain how the error infected the entire trial. Even assuming the trial court erred in granting Brown immunity, Brown was able to argue self-defense at trial. Therefore, any error by the trial court during the immunity hearing could not have so infected the trial as to implicate due process concerns. See Estelle, 502 U.S. at 62.
Similarly, in Ground Six, Brown argues that the trial court erred in refusing to grant his motion for a directed verdict. Again, Brown argues this violated his right to due process, see Spencer, 18 F.3d at 239, but Brown's claim seeks only review of an issue of state law. See, e.g., King v. Trippett, 27 Fed.Appx. 506, 510 (6th Cir. 2001) (stating that a state trial court's purported error in refusing to enter a directed verdict is a matter of state law that is not cognizable in a federal habeas corpus proceeding) (citing Estelle, 502 U.S. at 67-68); accord Menendez v. Ryan, No. CV-14-2436-PHX-DGC(jFM), 2015 wl 8923410, at *26 (D. Ariz. Oct. 20, 2015), report and recommendation adopted, 2015 WL 8758007 (D. Ariz. Dec. 15, 2015) and Wilson v. Hatch, Civ. No. 12-1224 JAP/GBW, 2013 WL 12159041, at *5 (D.N.M. July 29, 2013).
To the extent Ground Six can be construed to assert a challenge to the sufficiency of the evidence to support Brown's conviction, and thus raise a due process claim, the court finds that claim to be plainly unsupported by the record. “Though claims of insufficient evidence are cognizable on collateral review, a federal court's review of such claims is ‘sharply limited.' ” Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998) (citing the plurality opinion in Wright v. West, 505 U.S. 277, 296 (1992)). On this issue, the Supreme Court has advised:
[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 318 (1979) (citations omitted). At trial, the State presented evidence that Brown and the victim had been in an argument at Brown's home, and as the victim tried to get into a car to leave the scene, Brown retrieved a gun from inside his home, approached the victim near the sidewalk, and shot him to death. (App. at 459-62, ECF No. 42-2 at 171-74.) Brown's brief and conclusory arguments about why certain pieces of the State's evidence against him should not be believed (Petr.'s Resp., ECF No. 47 at 28-29), even assuming he could produce evidence to support them, are insufficient to demonstrate that no rational trier of fact could have found beyond a reasonable doubt the essential elements of voluntary manslaughter and possession of a weapon during the commission of a violent crime.
Notably, while Brown did not testify at trial, witnesses called by the defense admitted that Brown shot the victim. The only real dispute at trial was whether the victim was threatening Brown. (See, e.g., App. at 467, ECF No. 42-2 at 179.)
As to Ground Three, Brown claims that newly discovered evidence proves his innocence, but the court concludes that this claim is not cognizable because he does not assert that the newly discovered evidence corresponds with any violation of federal law. “Habeas petitioners may use an actual innocence claim to excuse the procedural default of a separate constitutional claim upon which they request habeas relief.” Buckner v. Polk, 453 F.3d 195, 199 (4th Cir. 2006) (citations omitted). But “the Supreme Court has strongly suggested that claims of actual innocence standing alone do not serve as an independent basis for habeas relief: ‘Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.' ” Id. (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)); see also McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”). The court observes that some cases suggesting that it may be unsettled whether a freestanding claim may exist also suggest that the existence of such a claim may be limited to capital cases. See Hunt v. McDade, 205 F.3d 1333, at *2 (4th Cir. 2000) (“The Herrera Court's analytical assumptions recognizing the possibility of a persuasive freestanding claim of actual innocence may be limited to capital cases because those assumptions were made in the context of evaluating the constitutionality of the petitioner's execution.) (citing Herrera, 506 U.S. at 417; id. at 427 (O'Connor, J., concurring); id. at 429 (White, J., concurring in the judgment)). Nevertheless, even “if free-standing actual innocence claims were cognizable on federal habeas review, ‘the threshold showing for such an assumed right would necessarily be extraordinarily high.' ” Buckner, 453 F.3d at 199 (quoting Herrera, 506 U.S. at 417).
Brown submits an affidavit from a witness, James Wiley, who swears he saw the victim with a gun right after the shooting. (Wiley Aff. ¶¶ 23, ECF No. 19-2 at 6.) Notably, Wiley was called as one of Brown's witnesses at the pretrial immunity hearing and did not testify that he saw the victim with a gun after the shooting. Regardless, Wiley's new testimony does not conclusively establish his innocence; it only conflicts with other testimony and evidence. Thus, Wiley's testimony would be insufficient to demonstrate that “ ‘no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.' ” Hunt, 2000 WL 219755, at *2 (quoting Herrera, 506 U.S. at 429 (White, J., concurring)).
Brown also argues that the forensic pathologist who testified for the State during the trial stated after the trial that the victim could not have been shot in close range as the solicitor claimed. Brown fails to indicate when or where the forensic pathologist said this or proffer any testimony from her. To the extent Brown is relying on information contained in the forensic pathologist's report, it cannot be newly discovered evidence because the report was entered into evidence during Brown's pretrial immunity hearing. (App. at 78, ECF No. 42-1 at 84.) Therefore, Brown fails to demonstrate that he can produce newly discovered evidence that would show that no reasonable jury could have found proof of his guilt beyond a reasonable doubt.
2. Procedurally Barred Claims
Respondent argues Ground Five is procedurally barred because it was never raised to or ruled upon by the state courts. The court agrees.
In Ground Five, Brown argues that his sentence violates the Double Jeopardy Clause of the Fifth Amendment because he did not receive proper credit for the time he served in jail. The record before the court reveals no effort by Brown to raise this issue to the trial court, and Brown did not raise this issue on appeal. See State v. Dunbar, 587 S.E.2d 691, 693-94 (S.C. 2003) (“In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial judge. Issues not raised and ruled upon in the trial court will not be considered on appeal.”). Therefore, this issue is procedurally barred from federal habeas review because it has not been properly presented to the state courts, and Brown does not argue that he can show cause to excuse the procedural bar. See Lawrence, 517 F.3d at 714; Coleman, 501 U.S. at 750.
RECOMMENDATION
For the foregoing reasons, the court recommends Respondent's motion for summary judgment (ECF No. 43) be granted and the Petition be denied.
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).