Opinion
C/A No. 0:18-3573-CMC-PJG
10-29-2019
Albert James Cave, Jr., Petitioner, v. Warden, Lieber Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Petitioner Albert James Cave, Jr., 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. 18.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. (ECF No. 20.) Petitioner filed a response in opposition to the motion. (ECF No. 27.) 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 denied.
BACKGROUND
In October 2011, Petitioner was indicted in the Aiken County Court of General Sessions for first-degree burglary. (App. at 178-79, ECF No. 17-3 at 179-80.) Petitioner was originally represented by David Hayes, Esquire, and later represented by Brian Katonak, Esquire. (Id. at 42-44, ECF No. 17-3 at 43-45.) On September 10, 2012, Petitioner pled guilty as charged pursuant to North Carolina v. Alford and was sentenced to twenty-five years' imprisonment, to run concurrently with another twenty-five year sentence previously imposed by the court. (Id. at 3-14, ECF No. 17-3 at 4-15.) Plea counsel filed a notice of appeal on Petitioner's behalf, but the South Carolina Court of Appeals dismissed the appeal for Petitioner's failure to provide sufficient reasoning for appealing his guilty plea as required by South Carolina Rule of Appellate Procedure 203. (ECF No. 17-1 at 4, 26.)
400 U.S. 25 (1970).
In 2014, Petitioner filed an application for post-conviction relief ("PCR") in the Aiken County Court of Common Pleas. (App. at 16, ECF No. 17-3 at 17.) A hearing was held on the application on September 23, 2016 in which Petitioner was represented by Lance S. Boozer, Esquire. (Id. at 36, ECF No. 17-3 at 37.) The PCR court denied the application. (Id. at 162-177, ECF No. 17-3 at 163-178.)
In the hearing, the PCR court took testimony in this matter as well as a simultaneous PCR application arising from a separate conviction and sentence that occurred in the same court. (App. at 39, ECF No. 17-3 at 40.) The other PCR application is at issue in a separate case on this court's docket, Civil Action No. 18-3572-CMC.
Petitioner appealed the denial of his PCR application by filing a Johnson petition for a writ of certiorari and pro se response in the South Carolina Supreme Court. (ECF No. 17-5.) The matter was transferred to the South Carolina Court of Appeals pursuant to South Carolina Rule of Appellate Procedure 243(l). The Court of Appeals denied the petition. (ECF No. 17-6.)
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors in Anders v. California, 386 U.S. 738 (1967), to post-conviction appeals). Anders requires that counsel who seeks to withdraw after finding the "case to be wholly frivolous" following a "conscientious examination" must submit a brief referencing anything in the record that arguably could support an appeal; furnish a copy of that brief to the defendant; and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
FEDERAL HABEAS ISSUES
The Petition for a writ of habeas corpus raises the following issues, as construed by the court:
Ground One: Petitioner claims his guilty plea was not entered voluntarily because he faced a life sentence if he went to trial after the plea court incorrectly denied his motion to suppress the State's fingerprint evidence.(Pet., ECF No. 1-1 at 5-12.)
Ground Two: Petitioner claims plea counsel was ineffective for failing to provide the South Carolina Court of Appeals with sufficient reasons to appeal his guilty plea pursuant to South Carolina Rule of Appellate Procedure 203.
Ground Three: Petitioner claims plea counsel was ineffective for failing to investigate and find any evidence that would have aided in his defense against the charge.
Ground Four: Petitioner claims the State committed prosecutorial misconduct by wrongfully arresting him based on fingerprint evidence from a prior arrest that should have been destroyed, and by prosecuting him despite a court order recusing that solicitor's office from certain cases involving Petitioner.
Ground Five: Petitioner claims the State violated Brady by failing to disclose to the defense any chain of custody "receipts," "evidence analysis report[s]," or "lab reports."
Brady v. Maryland, 373 U.S. 83 (1969).
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 non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving 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 437; 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. Procedurally Barred Claims
Respondent argues that Petitioner's claims in Grounds Two, Three, and Four are procedurally barred. As to Petitioner's claim in Ground Two that plea counsel was ineffective for failing to provide sufficient reasons to support an appeal, Respondent argues the claim is procedurally barred because the issue was not presented to the PCR court. The court agrees. Petitioner failed to present testimony about this issue at the PCR hearing, and the PCR court did not rule on this issue in its order of dismissal. Therefore, the issue was not preserved for review in state court. See Plyler v. State, 424 S.E.2d 477, 478 (S.C. 1992) (stating that issues not raised to and ruled on by the PCR court are not preserved for review on appeal); Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007) (stating that issues are not preserved for review where the PCR applicant fails to make a Rule 59(e) motion asking the PCR court to make specific findings of fact and conclusions of law on his allegations). Therefore, this claim is barred from federal habeas review, Lawrence, 517 F.3d at 714, and Petitioner fails to provide any argument that he can show cause to excuse the procedural bar, Coleman, 501 U.S. at 750.
As to Petitioner's claim in Ground Three that trial counsel was ineffective for failing to investigate and develop a defense, Respondent argues it is procedurally barred because it was not raised in the Johnson petition or pro se response in Petitioner's PCR appeal. The court disagrees because, as a claim that was ruled on by the PCR court and thus preserved for appellate review, the state appellate court reviewed the claim pursuant to the procedures outlined in Anders v. California. See Johnson, 364 S.E.2d at 201 (stating counsel may withdrawal from representation in a meritless PCR appeal if the procedures in Anders are followed); see also Jamison v. State, 765 S.E.2d 123, 128 (S.C. 2014) ("This Court recently held that, 'under the Anders procedure, an appellate court is required to review the entire record, including the complete trial transcript, for any preserved issues with potential merit.' Thus, this Court concluded the merits of an unpreserved claim were not considered by the court of appeals on direct appeal pursuant to Anders.") (quoting McHam v. State, 746 S.E.2d 41, 46-47 (S.C. 2013)). Therefore, the procedures followed by the South Carolina appellate courts in reviewing Johnson petitions for a writ of certiorari necessarily encompasses a review of all issues raised to and ruled on by the PCR judge. Accordingly, the court rejects Respondent's contention that Petitioner's claim is procedurally defaulted because the claim was not explicitly listed in the Johnson petition for a writ of certiorari or the pro se response, and the court will review the claim on the merits. See infra Section D.3.
As to Petitioner's claims in Ground Four that the State committed prosecutorial misconduct, Respondent argues these claims are procedurally barred because they were not raised at trial or on direct appeal. The court agrees. Petitioner did not raise these claims of prosecutorial misconduct at trial or in his direct appeal, even though Petitioner was aware of the facts that formed the basis for his claims at the time. Thus, those claims would be procedurally barred in state court. See S.C. Code Ann. § 17-27-20(B) (providing that PCR is not a substitute remedy for issues that are incident to trial proceedings or direct review of the sentence or conviction); Judge v. State, 471 S.E.2d 146, 148 n.1 (S.C. 1996) (finding that the PCR applicant was barred from raising a prosecutorial misconduct claim in PCR because the issue could have been raised on direct appeal), overruled on other grounds by Jackson v. State, 535 S.E.2d 926, 927 n.2 (S.C. 2000); see also Taylor v. McKie, No. 5:13-cv-02239-RMG, 2014 WL 3805820 at * 3 (D.S.C. July 31, 2014) (citing Judge to find that a claim of prosecutorial misconduct could not be raised in a South Carolina PCR proceeding if it was not raised on direct appeal, and therefore, finding the claim procedurally barred in a federal habeas proceeding). Therefore, these claims are barred from federal habeas review, Lawrence, 517 F.3d at 714, and Petitioner fails to provide any argument that he can show cause to excuse the procedural bar, Coleman, 501 U.S. at 750.
Prior to his decision to plead guilty, Petitioner was aware of the court order requiring the recusal of the solicitor's office, and the issues with the fingerprint evidence. (App. at 74-76, ECF No. 17-3 at 75-77.)
To the extent Petitioner raises a free-standing claim that he was illegally arrested in violation of the Fourth Amendment (outside of the context of prosecutorial misconduct), Respondent correctly argues that such a claim is barred from federal habeas review because Petitioner had a full and fair opportunity to litigate such a claim in state court. (Respt.'s Mem. Supp. Summ. J., ECF No. 17 at 16); see Stone v. Powell, 428 U.S. 465, 494 (1976); Doleman v. Muncy, 579 F.2d 1258, 1265 (4th Cir. 1978).
Consequently, the court will address Petitioner's claims in Grounds One, Three, and Five on the merits.
2. Ground One
In Ground One, Petitioner claims his guilty plea was not entered voluntarily because he faced a life sentence if he went to trial after the plea court incorrectly denied his motion to suppress the State's fingerprint evidence. Respondent argues that the PCR court's denial of this issue was not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. The court agrees.
Prior to Petitioner's decision to plead guilty, plea counsel moved to suppress the State's evidence that fingerprints found at the crime scene matched fingerprints taken from Petitioner in 2008 when Petitioner was previously arrested for a similar crime. (App. at 157-60, ECF No. 158-61.) Petitioner argued that because he was found not guilty of some of the 2008 charges, the fingerprints should have been destroyed pursuant to South Carolina Code § 17-1-40. (Id.) Therefore, Petitioner argued, the State's positive identification of Petitioner's fingerprints in the case at hand should be suppressed as fruit of the poisonous tree. (Id.) However, the plea court was persuaded by the State's argument that because Petitioner had at least fifteen prior arrests that resulted in at least twelve prior convictions in South Carolina, the discovery of Petitioner's identification through matching fingerprints was inevitable. (Id.) Thus, the plea court denied Petitioner's motion to suppress, though the plea court did find that the State should have destroyed the 2008 evidence. (Id.)
That statute provides in part, "If a person's record is expunged pursuant to Article 9, Title 17, Chapter 22, because the person was charged with a criminal offense, or was issued a courtesy summons pursuant to Section 22-3-330 or another provision of law, and . . . person was found not guilty of the charge, then the arrest and booking record, associated bench warrants, mug shots, and fingerprints of the person must be destroyed and no evidence of the record pertaining to the charge or associated bench warrants may be retained by any municipal, county, or state agency." S.C. Code Ann. § 17-1-40(B)(1).
At the PCR hearing, Petitioner testified that he was forced to accept the State's plea offer because the plea court abused its discretion when it denied his motion to suppress. (Id. at 68, ECF No. 17-3 at 69.) Petitioner also testified that the State failed to provide him with evidence in response to his "motion for discovery." (Id. at 65, ECF No. 17-3 at 66.) Petitioner testified that based on these events, he had to accept the State's plea offer because he could not "prepare a defense," and he was facing a life sentence. (Id. at 69, 79-80, ECF No. 17-3 at 70, 80-81.) Petitioner further testified that, since his plea, he still has not seen any evidence from the State in his case other than the evidence he reviewed with plea counsel. (Id. at 71, ECF No. 17-3 at 72.) Petitioner testified that plea counsel advised him to take the plea deal because the State had a strong case against him and he was facing a life sentence. (Id. at 73-74, ECF No. 17-3 at 74-75.) Petitioner testified that he would still like to have a trial on the charge. (Id. at 89, ECF No. 17-3 at 90.)
The deputy solicitor who prosecuted Petitioner' case, David Miller, testified that the State's only physical evidence against Petitioner was the fingerprint match, and the State provided the defense with all of the evidence in the case. (Id. at 97, ECF No. 17-3at 98.) He testified that despite the plea court's finding in the order denying the motion to suppress that Petitioner's fingerprint card should have been destroyed based on Petitioner's acquittal of some of the 2008 charges, the card was not destroyed because Petitioner also pled guilty to some charges arising out of the 2008 arrest. (Id. 99-103, ECF No. 17-3 at 100-04.) Therefore, the solicitor testified that the fingerprint card was appropriate evidence to use to match Petitioner's fingerprints with the prints found at the scene of the crime. (Id.) The solicitor testified that he told plea counsel that he would leave the plea offer open to Petitioner long enough for Petitioner to move suppress the fingerprints, but that following a ruling on that motion, he would revoke the offer and take Petitioner to trial. (Id. at 107-08, ECF No. 17-3 at 108-09.)
Plea counsel testified that the only evidence the State had against Petitioner was the fingerprint match, and he was already aware that Petitioner had been tried by the same deputy solicitor on very similar charges based only on a fingerprint match and Petitioner was convicted of that charge. (Id. at 139, ECF No. 17-3 at 140.) He testified that Petitioner did not present him with any possible defenses. (Id. at 138, ECF No. 17-3 at 139.) Plea counsel testified that he warned Petitioner that if he went to trial he was facing a life sentence. (Id.) Plea counsel also testified that by taking the plea deal, Petitioner had other charges dismissed by the solicitor's office. (Id. at 139-40, ECF No. 17-3 at 140-41.) Plea counsel further testified that he believed Petitioner understood the implications to plead guilty and it was Petitioner's own choice to accept the plea deal. (Id. at 140-41, ECF No. 17-3 at 141-42.)
The PCR court found that Petitioner's guilty plea was entered freely and voluntarily. (Id. at 169, ECF No. 17-3 at 170.) The PCR court concluded that the mere fact that Petitioner faced a life sentence if he went to trial did not render his plea coerced or involuntary. (Id. at 170, ECF No. 171.) The PCR court further found that plea counsel credibly testified that Petitioner fully understood the consequences of pleading guilty and the risks of proceeding to trial in light of his facing a life sentence and the State's evidence against him. (Id.) The PCR court found that Petitioner presented no evidence to contradict his own assertions at the plea hearing that his guilty plea was voluntary. (Id. at 171, ECF No. 17-3 at 172.)
The court concludes that Petitioner fails to meet his burden of showing that the PCR court's decision is contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner fails to point to any evidence that would show that the PCR court erred in finding that Petitioner was fully informed of the consequences of pleading guilty. See Boykin v. Alabama, 395 U.S. 238, 243-44 (1969) (establishing that a defendant's guilty plea must made on the record, and is valid only if it was made voluntarily and knowingly, meaning the defendant had a full understanding of the consequences of his plea and the charges against him); see also Hill v. Lockhart, 474 U.S. 52, 56 (1985) ("The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' ") (citing Alford, 400 U.S. at 31). The PCR court's decision was based in part on the PCR court's crediting of plea counsel's testimony on this matter, which is entitled to deference. See 28 U.S.C. § 2254(e); Elmore v. Ozmint, 661 F.3d 783, 850 (4th Cir. 2011) ("We must be 'especially' deferential to the state PCR court's findings on witness credibility, and we will not overturn the court's credibility judgments unless its error is 'stark and clear.' ") (quoting Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010)). Also, Petitioner fails to point to any evidence that was overlooked by the PCR court that would undermine the PCR court's finding that Petitioner failed to present any evidence to contradict his own assertions at the plea hearing that his guilty plea was voluntary. See Sargent v. Waters, 71 F.3d 158, 160 (4th Cir. 1995) (providing that the facts underlying guilty pleas are entitled to deference under § 2254(d), even though the matter is a question of federal law) (quoting Marshall v. Longberger, 459 U.S. 422, 431 (1982)). Finally, the PCR court's conclusion that Petitioner cannot claim that he was coerced into pleading guilty merely because he was facing a harsh sentence and indefensible evidence does not conflict with federal law. See Brady v. United States, 397 U.S. 742, 751 (1970) ("We decline to hold . . . that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged."). Consequently, Petitioner fails to show he is entitled to relief on this claim.
3. Ground Three
In Ground Three, Petitioner claims plea counsel was ineffective for failing to investigate and find any evidence that would have aided in his defense against the burglary charge. Respondent argues that the PCR court's decision on this issue is not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. The court agrees.
A defendant has a constitutional right to the effective assistance of counsel. To demonstrate ineffective assistance of counsel, a petitioner must show, pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), that (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating that "the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims"). To satisfy the first prong of Strickland, a petitioner must show that plea counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution. With regard to the second prong of Strickland, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. However, to prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, the Strickland test is "some what different." Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000). To establish the prejudice prong of the Strickland test, a habeas petitioner who pled guilty must show " 'that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)) (discussing the Strickland v. Washington standard to establish ineffectiveness of counsel in the context of a guilty plea).
The United States Supreme Court has cautioned federal habeas courts to "guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)." Harrington, 562 U.S. at 105. The Court observed that while " '[s]urmounting Strickland's high bar is never an easy task[,]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The Court instructed that the standards created under Strickland and § 2254(d) are both " 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, "[t]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
The Supreme Court has held that a decision containing a reasoned explanation is not required from the state court. As stated above, 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. In the case at bar, this court has the benefit of the PCR court's written opinion, certiorari review of which was denied by the South Carolina Court of Appeals, which may provide reasons or theories that the appellate court could have relied upon in summarily denying Petitioner's petition. See Wilson v. Sellers, 138 S. Ct. 1188, 1194-97 (2018) (holding that a federal habeas court should "look through" the unexplained decision to the last related state court decision that does provide a relevant rationale, and presume that the unexplained decision adopted the same reasoning, unless the State can rebut the presumption). Therefore, the court turns to the question whether the PCR court's order unreasonably misapplied federal law or was based on an unreasonable determination of the facts. Having reviewed the PCR court's order pursuant to the § 2254 standard, the court finds for the reasons that follow that the state court did not unreasonably misapply the Strickland test in determining that no Sixth Amendment violation occurred.
At the PCR hearing, Petitioner testified that plea counsel failed to "obtain and review discovery material that he knew the prosecution would rely on." (App. at 72, ECF No. 17-3 at 73.) Petitioner testified that plea counsel failed to obtain the chain of custody report that would show where the State collected evidence. (Id.) Petitioner also testified that he did not provide plea counsel with any leads or witnesses to investigate. (Id. at 87, ECF No. 17-3 at 88.)
Plea counsel testified that the State's only evidence against Petitioner was the fingerprint match. (Id. at 139, ECF No. 17-3 at 140.) He testified that Petitioner was aware of all of the State's evidence before the plea hearing. (Id. at 150, ECF No. 17-3 at 151.)
The PCR court found Petitioner failed to show that any evidence existed that plea counsel could have found through more investigation, and therefore, Petitioner failed to show that he would have risked going to trial but for plea counsel's purported deficiencies. (Id. at 173-74, ECF No. 17-3 at 174-75.)
The court concludes that Petitioner fails to meet his burden of showing that the PCR court's decision is contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner fails to point to any evidence that was overlooked by the PCR court that would show that plea counsel could have discovered evidence that would have aided Petitioner's defense and caused him to go to trial. See Hill, 474 U.S. at 59 (providing that "where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error 'prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea."); see also Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) ("[A]n allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced."); cf. Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir. 1990) (finding appellant could not establish that counsel was ineffective for failing to call certain witnesses without advising the court of what an adequate investigation would have revealed or what testimony the witnesses might have provided). Consequently, Petitioner fails to show he is entitled to relief on this claim.
4. Ground Five
In Ground Five, Petitioner claims that the State violated his right to due process under the Fourteenth Amendment by failing to provide him with impeachment evidence as required by Brady v. Maryland, 373 U.S. 83 (1969). Specifically, Petitioner claims the State withheld evidence "initially used to arrest" him, "receipts to show the chain of custody for evidence collected," "evidence analysis report to" that would show how Petitioner was identified, and "lab reports or any other evidence" that would show the State had a right to arrest Plaintiff. (Pet., ECF No. 1-1 at 9.) Respondent argues Petitioner fails to show that the PCR court erred in denying relief on this claim. The court agrees.
Moreover, to the extent this claim is unrelated to Petitioner's argument that his guilty plea was involuntarily entered, Petitioner has waived his right to raise this issue when he pled guilty. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.") (citing McMann v. Richardson, 397 U.S. 759, 770 (1970)); Menna v. New York, 423 U.S. 61, n.2 (1975) ("A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.").
The United States Supreme Court has held that when a State suppresses evidence favorable to an accused that is material to guilt or punishment, the State violates the defendant's right to due process under the Fourteenth Amendment. Cone v. Bell, 556 U.S. 449, 451 (2009) (citing Brady v. Maryland, 373 U.S. 83 (1963)). "To prove a Brady violation, a habeas petitioner must show that the evidence was (1) favorable to him; (2) material; (3) in the possession of the prosecution before trial; and (4) not disclosed to him upon request." Watkins v. Rubenstein, 802 F.3d 637, 642 (4th Cir. 2015) (citing United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001)). The petitioner must show "that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict;" the possibility of an acquittal is not enough. Kyles v. Whitley, 514 U.S. 419, 435 (1995); Watkins, 802 F.3d at 642.
Petitioner testified that he planned on going to trial on the burglary charge but the only evidence he received from the State was the fingerprint match. (App. at 69, ECF No. 17-3 at 70.) Petitioner testified that plea counsel should have obtained evidence that was not provided by the State in response to the defense's Rule 5 motion because the State did not turn over "fingerprints from the crime scene," chain of custody information from where the evidence was collected, or an investigative report. (Id. at 69-70, 72, ECF No. 17-3 at 70-71, 73.) Petitioner testified that he could not defend himself against the burglary charge without that evidence. (Id., at 70-71, ECF No. 17-3 at 71-72.) Petitioner testified that since his plea, he has not learned of any new evidence that plea counsel failed to review with him. (Id. at 71, ECF No. 17-3 at 72.)
The solicitor testified that the State turned over all of its Rule 5 and Brady material to the defense. (Id. at 97, ECF No. 17-3 at 98.) He testified that the only evidence against Petitioner was the matching fingerprints. (Id.) The solicitor testified that the defense was allowed to, and did, view the State's fingerprint evidence in person and conduct an independent analysis with their own expert. (Id. at 104, ECF No. 17-3 at 105.) Plea counsel testified that by the time he took the case, Petitioner's previous attorney had already requested and received all of the State's evidence and reviewed it with Petitioner. (Id. at 137-38, ECF No. 17-3 at 138-39.)
The PCR court concluded that Petitioner failed to meet his burden of presenting any credible evidence of a Brady violation. (Id. at 175, ECF No. 17-3 at 176.) The PCR court found that Petitioner failed to show any specific evidence that the State failed to provide to the defense, and the court found plea counsel credibly testified that he reviewed all of the discovery material with Petitioner. (Id.)
The court concludes that the PCR court's decision is not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner fails to point to any evidence that the PCR court overlooked that would have shown that the State had evidence that was not turned over to Petitioner. See 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). While Petitioner testified that he wanted to see the State's evidence on "fingerprints from the crime scene," chain of custody from where the evidence was collected, or an investigative report, (App. at 69-70, 72, ECF No. 17-3 at 70-71, 73), Petitioner failed to put forth any evidence that such evidence exists. Cf. Beaver, 93 F.3d at 1195; Bassette, 915 F.2d at 941. And, the solicitor's uncontradicted testimony that he turned over and made available to the defense all of the State's evidence undermines Petitioner's claim. Accordingly, Petitioner fails to meet his burden of showing he is entitled to relief on this claim.
RECOMMENDATION
For the foregoing reasons, the court recommends Respondent's motion for summary judgment (ECF No. 18) be granted and the Petition denied.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE October 29, 2019
Columbia, South Carolina
The parties' attention is directed to the important notice on the next page.
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).