Opinion
2:22-cv-00904-BHH-MGB
11-16-2022
Worth Edward Cook, III, # 293532, Petitioner, v. Warden Kenneth Nelson, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Worth Edward Cook, III (“Petitioner”), a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court upon Petitioner's Motion to Stay (Dkt. No. 11) and Petitioner's Motion to Amend his petition (Dkt. No. 25). Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review the motions and submit a recommendation to the District Judge.For the following reasons, the undersigned recommends that Petitioner's motions be denied.
As discussed below, Petitioner's motions involve habeas claims that, according to Petitioner, have not been exhausted in state court. Because rulings on motions to stay in habeas cases involving unexhausted claims can sometimes have a dispositive effect, see Mitchell v. Valenzuela, 791 F.3d 1166, 1171 (9th Cir. 2015), the undersigned has addressed Petitioner's motion through a report and recommendation, rather than through an order. See Mahdi v. Stirling, No. 8:16-cv-3911-TMC-JDA, 2017 WL 9286977, at *1 n.1 (D.S.C. Oct. 3, 2017) (taking same approach “[o]ut of an abundance of caution”), adopted, 2017 WL 6015031 (D.S.C. Dec. 5, 2017); Stokes v. Stirling, No. 1:16-cv-845-RBH-SVH, 2017 WL 1136040, at *1 n.1 (D.S.C. Jan. 30, 2017) (same), adopted, 2017 WL 1104926 (D.S.C. Mar. 24, 2017); Brown v. Warden, Lee Corr. Inst., No. 2:18-cv-1276-DCC-MGB, 2019 WL 1781550, at *1 n.1 (D.S.C. Feb. 13, 2019), adopted, 2019 WL 1773375 (D.S.C. Apr. 23, 2019).
BACKGROUND
Petitioner is currently confined within the South Carolina Department of Corrections (“SCDC”) at Broad River Correctional Institution. On March 4, 2016, Petitioner was convicted of murder following a jury trial. On that same day, Petitioner was sentenced to thirty-five years' imprisonment by the Honorable R. Knox McMahon. (Dkt. No. 12-5 at 149.) Petitioner, through counsel, appealed his conviction on March 9, 2016. The South Carolina Court of Appeals affirmed the conviction and issued a remittitur on April 24, 2018. (Dkt. No. 12-1 at 1.)
This Report and Recommendation reflects the pagination assigned by the Court's automated docketing system.
On May 4, 2018, Petitioner filed his first application for post-conviction relief (“PCR”). (Dkt. No. 12-5 at 167-75; Dkt. No. 12-6 at 3-6.) Petitioner's application was denied. (Dkt. No. 12-6 at 45-54.) He appealed. (Dkt. No. 12-8.) On August 11, 2021, the South Carolina Court of Appeals denied his appeal, and issued a remittitur on September 8, 2021. (Dkt. No. 12-7 at 1.)
Petitioner now seeks relief from this Court. He asserts claims of actual innocence, ineffective assistance of counsel, prosecutorial misconduct, and errors by the trial court. (See generally Dkt. No. 1.) Specifically, his Petition sets forth the following grounds for relief:
Ground One : Petitioner's right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution was violated because he is actually innocent of the charges.
Ground Two : Petitioner was denied the right to effective assistance of trial counsel, guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution.
Ground Three : Petitioner's rights to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution was violated.
Ground Four : Petitioner was denied his right to equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution.
Ground Five : Petitioner's right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution [was violated] when the trial judge erred in admitting statements by petitioner to law enforcement where (1) the police failed to scrupulously honor his invocation of his right to counsel and (2) the police coerced him to waive his rights to counsel and silence by threatening to arrest the mother of his child and place his child in the custody of social services.
Ground Six : Petitioner was denied the right to effective assistance of trial counsel as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution because trial counsel did not object to the trial court's fail[ure] to
include the permissive inference jury instructions in its jury instruction on inferred malice. Petitioner was prejudiced by counsel's ineffectiveness.(Id.) Petitioner asks the Court to vacate his conviction and release him from custody. (Id. at 40.)
Respondent was ordered to file a return and memorandum in response to the petition by May 18, 2022. (Dkt. No. 7.) On April 11, 2022, Petitioner filed the instant Motion for Stay and Abeyance requesting that the Court stay his case until he exhausts all his claims. (Dkt. No. 11.) In his motion, Petitioner explains that he has filed a second PCR application, as well as an Application for Forensic DNA Testing, and a Motion for New Trial. (Id. at 2-3.) His second PCR application is still pending, as is his Motion for New Trial. (Id.) His Application for Forensic DNA Testing was denied, but Petitioner has appealed the state court's decision. (Id.) Accordingly, Petitioner wishes to stay his case until his pending state court actions are resolved. (Id.)
Respondent responded in opposition to Petitioner's motion, arguing that Petitioner has not shown cause to stay his case. (Dkt. No. 12.) Because the Return has not been filed, Respondent submitted various attachments with its response to aid the Court's review. These attachments include relevant state court documents such as Petitioner's PCR applications, the trial transcript, orders of dismissal, direct and PCR appeal filings, Petitioner's application for DNA testing, and the state court's order denying Petitioner's application for DNA testing. (Dkt. No. 12 at 3-4.)
Petitioner replied to Respondent's response on May 16, 2022 and filed an amended reply on May 19, 2022. (Dkt. Nos. 16, 18.) On November 7, 2022, Petitioner filed a Motion to Amend seeking “thirty (30) days after the exhaustion of his pending state claims and cases, to amend his habeas corpus petition.” (Dkt. No. 25 at 1.) The undersigned considers these motions, below.
LEGAL STANDARD
Exhaustion of all available state remedies is an important prerequisite to federal habeas relief. See § 2254(b)-(c); see also Rose v. Lundy, 455 U.S. 509, 515 (1982) (“The exhaustion doctrine existed long before its codification by Congress in 1948.”). It exists to “protect the state courts' role in the enforcement of federal law” and to “prevent disruption of state judicial proceedings.” Lundy, 455 U.S. at 518. Those purposes are integral to the preservation of federalism, and district courts must see that they are taken seriously. Lundy, 455 U.S. at 510, 518, 520. As such, § 2254 petitions containing even one unexhausted claim must be dismissed in their entirety, even if they also contain properly exhausted claims. Id.
For years, a prisoner who filed a “mixed” § 2254 petition asserting both exhausted and unexhausted claims had two options: (1) delete the unexhausted claims from his petition, or (2) go back to state court, let the state court rule on his claims, and then, if need be, return to federal court. Lundy, 455 U.S. at 510. The latter option became problematic in 1996, when Congress created a one-year statute of limitations for filing § 2254 petitions. See 28 U.S.C. § 2244(d). The limitations period in conjunction with Lundy's dismissal requirement created a risk that prisoners who timely filed mixed petitions would “forever los[e] their opportunity for any federal review of their unexhausted claims.” Rhines v. Weber, 544 U.S. 269, 275 (2005). This would certainly occur when the federal court dismissed a mixed petition after the limitations period had expired,and could easily occur when the federal court dismissed just before that period was to expire. See id.
The filing of a § 2254 petition in federal court does not toll the limitations period. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
As a solution, the Supreme Court blessed the practice of staying § 2254 cases involving mixed petitions and holding them in abeyance while prisoners exhausted their unexhausted claims. Rhines, 544 U.S. at 275-76. The Court stressed, however, that district courts should grant such stays “only in limited circumstances”-where the prisoner shows “good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 276, 278.
DISCUSSION
Petitioner contends that his petition constitutes a mixed petition that satisfies the requirements of Rhines. Petitioner asserts that he has good cause for failing to exhaust his unexhausted claims, and that such claims have merit. (Dkt. Nos. 11, 16.) For the reasons set forth below, the undersigned recommends that a stay is not warranted in this case and, therefore, that Petitioner's motions be denied.
It is uncontested that there is no indication that Petitioner engaged in intentionally dilatory litigation tactics. (See generally Dkt. No. 12.) As such, the undersigned declines to address this issue.
First, the undersigned notes that claims Petitioner sets forth as “unexhausted” are actually exhausted (albeit procedurally defaulted). The difference between an exhausted habeas claim and an unexhausted one is the continued availability of relief from the state. See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (“In habeas, state-court remedies are described as having been ‘exhausted' when they are no longer available, regardless of the reason for their unavailability.”). A claim is unexhausted if there is still available any avenue of relief on it through the state. See id.; Rhyne v. Warden of Tyger River Corr. Inst., No. 4:07-cv-3147-HMH, 2008 WL 1930040, at *5 (D.S.C. Apr. 29, 2008). But if state law renders all state avenues of relief now closed-for example, because the prisoner missed a filing deadline or because the prisoner already sought relief in state court once and state law prevents him from trying again-then the claim is exhausted, regardless of whether the prisoner actually carried it all the way through the state system, and even if he never presented it in any state forum.
Procedural default of a claim occurs when the prisoner failed to raise the claim at all appropriate times in state court and now has no further opportunity to bring it before the state courts. Rhyne, 2008 WL 1930040, at *5. Thus, a procedurally defaulted claim is, by definition, an exhausted one. See id. at *6. Nevertheless, federal courts generally cannot consider the merits of procedurally defaulted claims. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
South Carolina provides two routes for challenging convictions: direct appeal and PCR. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). Generally, a convicted defendant gets only one opportunity for each. See Mangal v. State, 805 S.E.2d 568, 576 (S.C. 2017) (“All applicants are entitled to a full and fair opportunity to present claims in one PCR application.”) (citations omitted); State v. Devore, 784 S.E.2d 690, 692 (S.C. Ct. App. 2016) (reciting state rule that convicts must serve notice of appeal within ten days of sentencing, and stating appellate courts have no jurisdiction over any appeal not served within that deadline). Petitioner attempted both avenues.
In doing so, Petitioner brought claims relating to ineffective assistance of counsel, unfair trial, Due Process violations, and prosecutorial misconduct. (Dkt. No. 12-5 at 167-75; Dkt. No. 12-6 at 3-6.) Petitioner effectively exhausted only a narrow portion of his ineffective assistance of counsel claim: whether his counsel was ineffective in failing to request or note the omission of an inference of malice instruction under state law. (Dkt. No. 12-6 at 40.) He also exhausted his Due Process claim that the trial court erred in admitting certain of his statements to law enforcement. (Id. at 45-54.) The remainder of Petitioner's ineffective assistance of counsel and Due Process violation claims (Grounds Two and Three) are procedurally defaulted because Petitioner has used up his direct appeal and PCR action, and therefore has no further means of getting the state courts to hear his claims. See Stewart, 701 F.Supp.2d at 790-91 (stating federal habeas court may rely on state rules to find claims procedurally defaulted if those rules clearly apply).
At this time, the undersigned expresses no opinion on whether the Court should consider those claims on the merits. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (holding federal courts may consider merits of procedurally defaulted claims if prisoner shows cause for the default and actual prejudice from the alleged violation of federal law, or shows that not considering the claims would cause “a fundamental miscarriage of justice”).
As for the remainder of Petitioner's claims, he has not shown that a stay is appropriate. Petitioner argues that he has good cause under Rhines, asserting that certain of his claims are based on “newly discovered evidence” produced through “post-trial investigations” that prove he is actually innocent. (Dkt. No. 11 at 6-7.) However, as Respondent correctly notes, Petitioner concedes that much of this “newly discovered evidence” was, in fact, available at the time of trial and was known to defense counsel. (See generally Dkt. Nos. 1, 16.)
Petitioner further claims that the prosecution withheld evidence from his trial counsel, and that his trial counsel withheld evidence from him. (Dkt. No. 11 at 7; Dkt. No. 16 at 11.) According to Petitioner, this evidence “consists of DNA, forensic, physical evidence, and impeachment material consisting of deals made with several witnesses for the state that produced false testimony.” (Dkt. No. 11 at 7.) The undersigned does not find Petitioner's arguments convincing in light of the fact that Petitioner presents the court with nothing more than his conclusory assertions to support his theory that counsel withheld evidence. (See generally Dkt. Nos. 1, 11, 16.)
Moreover, Petitioner fails to provide proof that much of the “newly discovered evidence” he references even exists. (See generally Dkt. Nos. 1, 11, 16.) To the extent he attempts to provide proof of evidence, such evidence does not appear exculpatory or material for the reasons set forth in more detail below.
To the extent Petitioner argues that ineffective assistance of counsel provides good cause for his failure to exhaust his claims and warrants a stay of this habeas action, the undersigned finds this argument unconvincing. Indeed, Petitioner cites to a case from the District of Arizona in support of this claim, (Dkt. No. 16 at 24), and the Fourth Circuit does not clearly recognize an ineffective assistance of counsel claim as constituting good cause for purposes of a Rhines stay. See Clement v. Ballard, C/A No. 2:15-02320, 2015 WL 6690158, at *10 (S.D. W.Va. Sept. 22, 2015) (collecting cases as to the different applications of the Rhines “good cause” standard, including split authority on whether ineffective assistance of counsel may constitute “good cause”), adopted, C/A No. 2:15-02320, 2015 WL 6680893 (S.D. W.Va. Nov. 2, 2015).
Turning to the merits of Petitioner's claims, the undersigned notes Petitioner's claims are not entirely clear. However, Petitioner's primary focus appears to be his actual innocence. The key to an actual innocence claim is the submission of “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence- that was not presented at trial.'” Hayes v. Carver, 922 F.3d 212, 216 (4th Cir. 2019) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). The petitioner must show that, “in light of all the evidence, old and new, it is more likely than not that no reasonable juror would have voted to find him guilty beyond a reasonable doubt.” Id. at 217 (citing Finch v. McKoy, 914 F.3d 292, 298-299 (4th Cir. 2019)); see also McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (stressing that this standard “is demanding”).
Petitioner has submitted various materials in support of his motion and his reply to Respondent's response-materials that the undersigned assumes are intended to support his claims of new evidence and actual innocence. (Dkt. No. 16.) However, most of these materials have no bearing on his guilt or innocence. For example, Petitioner submits a plethora of correspondence relating to his case. (See Dkt. Nos. 16-3, 16-4, 16-7, 16-9, 16-13, 16-14, 16-15, 16-16, 16-17, 16-19, and 16-20.) This correspondence shows that Petitioner sought assistance from innocence projects, counsel, and a private investigator. It further shows that he requested information about his case from various government entities. This correspondence does not, however, demonstrate the existence of new reliable evidence. See Hayes, 922 F.3d at 216. Similarly, Petitioner provides copies of state court filings that are already part of the record in this case and do not suggest the existence of new reliable evidence. (Dkt. Nos. 16-10, 16-11, 1612, and 16-18.)
To the extent Petitioner provides copies of state court filings relating to his Motion for a New Trial and Application for Forensic DNA Testing as proof of newly discovered evidence, these filings fall short. Indeed, they contain nothing more than conclusory assertions and unsubstantiated theories. (See generally Dkt. Nos. 16-2, 16-8.)
Additionally, Petitioner provides a mailing receipt to demonstrate that he mailed “documentation concerning prosecutorial misconduct and [] withhold[ing of] exculpatory evidence” to the South Carolina Office of Disciplinary Counsel. (Dkt. No. 16-6.) To the extent Petitioner believes this is sufficient to demonstrate the existence of new reliable evidence, prosecutorial misconduct, or withheld evidence, the undersigned disagrees. Petitioner has provided no actual proof that exculpatory evidence exists, or that prosecutorial misconduct occurred in his case. The receipt he submitted merely shows that he mailed documents-it does not show the contents of those documents, nor does it affirm that the documents contained information pertaining to Petitioner's innocence or attorney misconduct. (See generally Dkt. No. 16-6.)
Petitioner also submits a copy of a voluntary statement from an unnamed person taken by the Lexington County Sheriff's Department. (Dkt. No. 16-5.) The undersigned assumes this is the “statement from a jailhouse informant” referenced in the “Supporting Facts” subsection of “Ground One” in his petition. (Dkt. No. 1.) The undersigned first notes that the voluntary statement is not new; it is dated October 4, 2013. (Dkt. No. 16-5 at 2.) Further, the statement does not support a finding of actual innocence. (See generally id.) Although the statement suggests that a third party-Rick Barnes-was involved with the murder at issue, it also says that the statement's provider “heard [Petitioner] at night saying he didn't mean to kill [the victim]” when they were housed together, presumably in prison. (Id. at 3.) Thus, the statement does not support a finding that Petitioner is actually innocent of the crime for which he was convicted.
Based on the foregoing, Petitioner has failed to show that new reliable evidence of innocence exists. See Hayes, 922 F.3d at 217 (where “none of [the] evidence contradicts, or even undermines, the essential testimony of the identifying witnesses or the State's other evidence,” the petitioner does not meet the stringent standard for establishing actual innocence). Nevertheless, whether Petitioner's claims would succeed here is not quite what Rhines requires. The Supreme Court included the “potential merit” requirement to ensure that federal habeas cases are not pointlessly put on hold for prisoners to assert claims that have no chance of success in state court. See Rhines, 544 U.S. at 277 (noting stays in § 2254 cases “frustrate” Congress's intent for habeas litigation and then imposing the potential merit requirement for that reason). In other words, the inquiry Rhines contemplates is whether the unexhausted claims have the potential to get the prisoner relief in state court. The merits of the claims themselves are relevant to that inquiry, but other considerations are, as well.
For instance, Petitioner has already tried PCR once, and South Carolina strongly disfavors successive PCR applications. Robertson v. State, 795 S.E.2d 29, 33 (S.C. 2016). A prisoner can file a successive PCR application only if a court finds that, for “sufficient reason,” the claim at issue “was not asserted or was inadequately raised” in the first PCR action. S.C. Code Ann. § 17-27-90. The state Supreme Court has found “sufficient reason” in only rare and extreme circumstances. See Robertson, 795 S.E.2d at 37 (prisoner sentenced to death was assigned counsel in first PCR who did not meet statutory qualifications to represent him); Washington v. State, 478 S.E.2d 833, 835 (S.C. 1996) (procedural irregularities in direct appeal and prior PCRs were so egregious that prisoner was denied due process); Carter v. State, 362 S.E.2d 20, 21 (S.C. 1987) (PCR counsel was the same as trial counsel); Case v. State, 289 S.E.2d 413, 413-14 (S.C. 1982) (per curiam) (initial PCR application was filed without the assistance of counsel and dismissed without hearing); see also Odom v. State, 523 S.E.2d 753, 755 (S.C. 1999) (stating successive PCR applications may include only claims that “could not have been raised in the previous application,” and calling the circumstances warranting successive PCR actions “rare”). The undersigned does not see how Petitioner could satisfy the demanding interpretation of “sufficient reason” these cases reflect. As mentioned above, although Petitioner alleges that he has new evidence, he conceded that much of this evidence was available at the time of his trial, and he has failed to show that the remainder of the evidence actually exists. Thus, he has not demonstrated an inability to bring that evidence to the PCR court's attention. Moreover, it appears that at least some of Petitioner's claims were raised in his first PCR case. (Dkt. No. 12-5 at 167-75; Dkt. No. 12-14 at 1-16.) Because there appear to be no grounds for allowing Petitioner to pursue a second PCR case, the claims he would like to proceed with in state court cannot be viewed as potentially meritorious under Rhines. Cf. Mahdi v. Stirling, No. 8:16-cv-3911-TMC, 2017 WL 6015031, at *3 (D.S.C. Dec. 5, 2017) (finding claims were not potentially meritorious in part because they were successive and time-barred under PCR statutes). Accordingly, the undersigned recommends denying Petitioner's Motion for Stay and Abeyance (Dkt. No. 11).
Further, allowing amendment would be inappropriate, as granting a stay and allowing amendment are mutual alternatives. See Rhines, 544 U.S. at 278 (stating district court should allow deletion of unexhausted claims from mixed petition “if” court determines stay is inappropriate). Petitioner requests the opportunity to amend his petition “[i]n hope and preparation of the Court's granting Petitioner's motion for stay and abey[a]nce” because he expects that “many unforeseeable changes to [his] claims will take place” as those claims “progress and develop through the state court system.” (Dkt. No. 25 at 1-2.) Petitioner does not request an opportunity to amend exclusive of a stay. (Id.) The undersigned therefore recommends that Petitioner's Motion to Amend (Dkt. No. 25) be denied.
CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS that Petitioner's Motion for Stay and Abeyance (Dkt. No. 11) and Petitioner's Motion to Amend (Dkt. No. 25) be DENIED.
IT IS SO RECOMMENDED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).