Opinion
C/A No.: 5:20-cv-02674-RMG-KDW
02-26-2021
Donquavious DaShon Davis, Petitioner, v. Warden of Perry Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
On July 20, 2020, Donquavious DaShon Davis ("Petitioner") filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On October 6, 2020, Respondent filed a Return and Motion for Summary Judgment. ECF Nos. 20, 21. Petitioner filed a timely Response on November 5, 2020. ECF No. 25.
This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Motion for Summary Judgment. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 21, be granted. I. Background
The following facts are summarized from Petitioner's guilty plea and are uncontested. See App. 46-52. On June 29, 2014, Petitioner, out driving with some friends, spotted his ex-girlfriend's car at a mutual friend's house. Petitioner exited the car with a firearm, knocked on a sliding glass door at the house, and shot the person who answered—his ex-girlfriend's boyfriend, Shantario McCoy. Mr. McCoy died from his injuries.
Citations to "App." refer to the Appendix for Petitioner's guilty plea transcript and Post-Conviction Relief ("PCR") Proceedings. That appendix is available at ECF No. 20-1 in this habeas matter.
On November 6, 2014, the York County Grand Jury indicted Petitioner for murder (Indictment No. 2014-GS-46-3509) and possession of a weapon during the commission of a violent crime (Indictment No. 2014-GS-46-03509a). App. 192-93. In addition, Petitioner was indicted for first-degree burglary (Indictment No. 2014-GS-46-03510). App. 190-91. Petitioner was represented by Assistant Public Defender Phil Smith ("Plea Counsel") and Chief Public Defender Harry Dest. App. 1, 30.
On July 1, 2015, Petitioner appeared before the Honorable Daniel D. Hall, Circuit Court Judge, for a plea hearing. App. 28. At that time, Petitioner waived presentment of the first-degree burglary charge to the Grand Jury. App. 30. Petitioner admitted he shot the victim but asserted he did so from outside the house. App. 53-54. Accordingly, Judge Hall accepted Petitioner's plea as to the murder and weapons charges but allowed Petitioner to enter an Alford plea on the burglary charge. App. 55-58. On July 13, 2015, Petitioner appeared before the Honorable John C. Hayes, III, Circuit Court Judge, for sentencing. App. 61. Judge Hayes sentenced Petitioner to 40 years for first-degree burglary and concurrent sentences of 30 years for voluntary manslaughter and five years for the weapons charge. App. 101, 194-96.
North Carolina v. Alford, 400 U.S. 25 (1970).
On July 21, 2015, Plea Counsel filed a timely notice of appeal and Rule 203(B) Explanation. ECF No. 20-2. The South Carolina Court of Appeals dismissed Petitioner's appeal on October 23, 2015 and issued the remittitur on December 8, 2015. App. 103-04.
Petitioner filed a pro se application for post-conviction relief ("PCR") on August 18, 2016, raising the following grounds for relief:
Ineffective Assistance of Counsel
1. Failed to investigate the main elements of the case:
A. The elements of the gun found at the crime scene chain of custody and/or the disappearance of
B. Why was the gun at the crime scene
C. The fact that the house did not belong to the person indicated on the warrant
D. Proper evidence to prove that a burglary was not committed in this case/incident
E. Did not question witnesses to whether statements would have been material to defendant's defense and/or innocence
2. Failed to give sufficient advice to Defendant - Counsel advised defendant to plea instead of going to trial and challenging:
A. Fraudulent warrants and indictments
B. The elements of murder and burglary
C. All evidence and representation of the innocence of the Defendant
3. Failed to challenge and/or object to the Courts to elicit whether defendant committed every element of crime - Defendant made a statement about self-defense, but the court failed to go into further detail of the mentioning of this defense to see whether his plea was involuntary
4. Failed to challenge the State's evidence produced at defendant's plea sentencing -
A. A statement by Mercedes Bland was produced at the plea sentencing defendant did not have knowledge of this statement and therefore did not have time to prepare a defense for this statement
B. There was evidence presented at the plea sentencing which was completely unknown to the defendant and critical this was information about a weapon. Defendant did not have time to prepare for the new information.
Prosecutorial Misconduct
1. Failed to disclose sufficient/material evidence that was relevant to a lesser offense - A gun was found at the scene of the crime that was not placed into evidence or was suppressed which could have rendered the plea of self defense
2. Prosecutor made improper comment about evidence or his testimony was false - Prosecutor introduced evidence about a weapon that can not be proven by any legal documents or testimony
3. Failed to produce evidence used in defendant's guilty plea to the defendant - A statement was produced on the day of defendant's guilty plea therefore denying defendant the right to prepare a defense
Trial Court Error
App. 112-13. On April 16, 2018, after briefing by the State, the Honorable Roger E. Henderson, Circuit Court Judge, convened an evidentiary hearing on the matter. App. 123. Petitioner was represented at the hearing by Jeremy A. Thompson ("PCR Counsel") and presented testimony from himself, Plea Counsel, and the prosecutor, Assistant Solicitor Walter William Thompson. App. 123-24. At the hearing, PCR Counsel informed the court Petitioner was proceeding on one allegation: "ineffective assistance of counsel for failing to effectively completely advise [him] of his ability to present a defense of self-defense if he went to trial." App. 127. Judge Henderson denied Petitioner's application on November 19, 2018, after considering only that issue. App. 173. PCR Counsel filed a timely notice of appeal. ECF No. 20-3.1. Failed to elicit whether defendant committed every element of the crimes - Defendant indicated that because of the circumstances he could not plea self-defense, but no one questioned defendant to find out whether defendant was making this plea voluntarily/actually committed the crimes as charged/warranted
On July 10, 2019, Appellate Defender Joanna K. Delany perfected the appeal through a Johnson petition for a writ of certiorari presenting the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (approving the withdrawal of counsel in meritless post-conviction appeals, provided the procedures in Anders v. California, 386 U.S. 738 (1967), were followed).
Whether the PCR court erred when it found counsel provided effective representation where there was evidence that counsel did not discuss the applicability of self-defense, since petitioner said he only shot the decedent because he thought the decedent was going to shoot him first?ECF No. 20-4 at 3. On May 1, 2020, Petitioner filed a pro se response to the petition and raised the following issues, which he contended were raised during the PCR hearing, but not ruled on in the order of dismissal:
Defendant's guilty plea was involuntary d[ue] to failure by the government to preserve/disclose material exculpatory evidence which compromised defense counsel's ability to provide effective assistance of counsel.ECF No. 20-5 at 1-2. The South Carolina Supreme Court transferred the matter to the Court of Appeals, which denied certiorari on June 17, 2020. ECF No. 20-6. The remittitur issued on July 7, 2020. ECF No. 20-7. II. Standard of Review
Plea Counsel failed to advise defendant of an Alford's [sic] Plea or any pleas dealing with maintaining innocence.
This Issue Below PCR Counsel failed to raise which was on PCR Application: Defendant's guilty plea counsel was ineffective for failing to disclose material exculpatory evidence.
A. Summary Judgment
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials"; or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, 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. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
B. Habeas Corpus
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410.
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S. Ct. 1388 (2011). To obtain habeas relief 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." Harrington, 562 U.S. at 103. "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102. In Harrington, the Court further stated: "If this standard is difficult to meet, that is because it was meant to be." Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows: "[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) 'contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,' or (2) 'involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.'" Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). "Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is "contrary to" clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court "identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case." Williams, 529 U.S. 362, 405-13. The "unreasonable application" portion of § 2254(d)(1) "requires the state court decision to be more than incorrect or erroneous[,]" it "must be objectively unreasonable," which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to state-court factual determinations and provides that a petitioner can only rebut such a presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2) only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. See Douglas v. California, 372 U.S. 353, 357 (1963) (initial appeal); Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963) (trial). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting that the standards are "both highly deferential," and "when the two apply in tandem, review is doubly so." Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S. Ct. at 1403.
Further, in Pinholster, the Court held for the first time that the federal court's habeas review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits. Pinholster, 131 S. Ct. at 1398. The Court explained that "review under § 2254(d)(1) focuses on what a state court knew and did." Id. at 1399. In the Pinholster case, the district court conducted an evidentiary hearing and considered new evidence in connection with its review and granting of the petitioner's writ based on a finding of ineffective assistance of counsel. Id. at 1397. In an en banc decision, the Ninth Circuit Court of Appeals affirmed the district court's grant of the writ. Id. The United States Supreme Court granted certiorari and reversed the Ninth Circuit, finding that the district court should not have considered additional evidence that had not been available to the state courts. 131 S. Ct. at 1398. Because the federal habeas scheme "leaves primary responsibility with the state courts," and "requires that prisoners ordinarily must exhaust state remedies," the Court held that to permit new evidence to be presented in a federal habeas court "would be contrary to that purpose." 131 S. Ct. at 1399 (internal citation and quotation marks omitted).
When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]" not "whether defense counsel's performance fell below Strickland's standard." Harrington, 562 U.S. at 101. "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Id. (citing Williams, 529 U.S. at 410) (emphasis in original). "A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Id.
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States[,]" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate, but related, theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas-corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that -
(A) the applicant has exhausted the remedies available in the courts of the State; or28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state-court remedies. 28 U.S.C. § 2254(b)(1)(A). "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). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal or (2) by filing a PCR application. State law requires that all grounds be stated in the direct appeal or PCR application. SCACR 203; see S.C. Code Ann. §§ 17-27-10 through 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007). Strict time deadlines govern direct appeals and the filing of a PCR application in South Carolina courts. A PCR application must be filed within one year of judgment, or, if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or to the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding "that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.") (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990)).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas-corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains:
[state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984). However, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with the state rule[,]" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 23, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)). Procedural default is an affirmative defense that is waived if not raised by respondents. Gray v. Netherland, 518 U.S. 152, 165-66 (1996). To overcome a respondent's contention of procedural bypass, it is a petitioner's burden to raise cause and prejudice or actual innocence. If not raised by the petitioner, the court need not consider the defaulted claim. See Kornahrens v. Evatt, 66 F.3d 1350, 1362-63 (4th Cir. 1995).
c. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a "fundamental miscarriage of justice" has occurred. Murray, 477 U.S. at 495-96; see Martinez v. Ryan, 566 U.S. 1 (2012) ("A prisoner may obtain federal review by showing cause for the default and prejudice from a violation of federal law.") (quoting Coleman, 501 U.S. at 750). A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Murray, 477 U.S. at 495-96. Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. III. Analysis
Petitioner raises the following grounds for relief:
Ground One: Trial Counsel was ineffective for failing to file a motion to quash 1st degree burglary indictment where it's missing the key elements for 1st degree burglary indictments.
Ground Two: Guilty Plea Involuntary
Ground Three: There was Plain Error when Circuit Court accepted defendant's guilty plea while aware of a[n] undisclosed gun found at the crime scene. It was not put into evidence.
Ground Four: Plea Counsel failed to advise defendants of a[n] Alford's [sic] plea or any pleas dealing with maintaining innocence.
Ground Five: Whether the Court of Appeals erred when it found counsel provided effective representation where there was evidence that counsel did not discuss the applicability of self defense since petitioner said he only shot the decedent because he thought the decedent was going to shoot him first.
Ground Six: Police MisconductECF Nos. 1, 1-1.
Ground Seven: Trial Counsel was ineffective for failing to disclose material exculpatory evidence which was used in Petitioner's guilty plea sentencing phase.
A. Exhaustion and Procedural Default
Respondent asserts all of Petitioner's grounds are defaulted, except Ground Five. ECF No. 20 at 12-14. Petitioner does not address Respondent's assertions of default in his response but indicates in his petition that any failure to exhaust is due to Appellate and PCR Counsels' failure or refusal to raise his claims. ECF No. 1 at 12. As detailed above, Petitioner raised some of his claims in his pro se PCR petition. However, he advanced only one claim at the PCR hearing-Plea Counsel's ineffectiveness in failing to thoroughly advise him regarding self defense, Petitioner's Ground Five—and the PCR court considered only that claim. Petitioner raised several of his other claims in his pro se response to the Johnson petition. However, because PCR Counsel did not file a Rule 59 motion to alter or amend, under state procedural rules, all of Petitioner's grounds, except for Ground Five, were procedurally barred from the appellate court's consideration. See Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007) (holding that if the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court), abrogated by Fishburne v. State, 832 S.E.2d 584 (S.C. 2019). All grounds other than Ground Five were not properly raised to the state's highest court and, therefore, are procedurally defaulted.
In Fishburne, the South Carolina Supreme Court abrogated Marler v. State, 653 S.E.2d 266 (S.C. 2007) and Humbert v. State, 548 S.E.2d 862 (S.C. 2001) and remanded Fishburne's case so that the trial court could make findings of fact and conclusions of law on duly raised PCR claims of ineffective assistance of counsel even though Fishburne did not file a Rule 59(e) motion. The circumstances in this case, however, are different because at the PCR hearing Petitioner elected to proceed on only one issue. App. 127.
1. Defaulted Ineffective Assistance of Counsel Grounds
Petitioner alleges ineffective assistance of Plea Counsel in Grounds One, Four, Five, and Seven. Ground Five was raised to and ruled on by the PCR Court and is preserved for review. The remaining grounds are admittedly defaulted, and Petitioner relies on PCR Counsel's refusal to raise the issues to excuse that default.
In Ground One, Petitioner asserts Plea Counsel was ineffective for not moving to quash Petitioner's first-degree burglary indictment because it listed an occupant of the house, rather than the owner. ECF No. 1-1 at 2. He further contends the trial court lacked subject matter jurisdiction because of the insufficient indictment. Id. In support, Petitioner attaches a copy of the title to the property. ECF No. 1-2. Petitioner indicates PCR Counsel refused to raise this claim and relies on Martinez v. Ryan, 566 U.S. 1 (2012), to excuse the default. ECF No. 1-1 at 3-4.
"An attorney error does not qualify as 'cause' to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel." Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). "Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default." Id. (citing Coleman v. Thompson, 501 U.S. 722 (1991)). However, under a narrow exception, ineffective assistance of PCR counsel can constitute "cause to overcome the default of a single claim—ineffective assistance of trial counsel—in a single context—where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal." Id. at 2062-63 (citing Martinez v. Ryan, 566 U.S. 1 (2012)). To avail himself of this exception, Petitioner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that . . . the claim has some merit," Martinez, 566 U.S. at 14, and that his PCR Counsel was ineffective under Strickland for not raising that claim.
Here, Petitioner fails to show his underlying claim has some merit.
The indictment is a notice document. . . . If [an] objection is timely made, the circuit court should judge the sufficiency of the indictment by determining whether (1) the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon; and (2) whether it apprises the defendant of the elements of the offense that is intended to be charged.State v. Gentry, 610 S.E.2d 494, 500 (S.C. 2005) (citing S.C. Code Ann. § 17-19-20 (2003)). In South Carolina, "[f]irst degree burglary requires the entry of a dwelling without consent with the intent to commit a crime therein, as well as the existence of an aggravating circumstance." State v. Cross, 448 S.E.2d 569, 570 (S.C. Ct. App. 1994); see also S.C. Code Ann. 16-11-311 (2003).
Petitioner's indictment alleged "on or about June 29, 2014, [he] willfully and unlawfully enter[ed] the dwelling of Kadeem Cobb . . . without consent and with the intent to commit a crime in the dwelling" and committed a statutory aggravating act. App. 190. Petitioner contends this indictment is insufficient because it names the dwelling's occupant, Kadeem Cobb, rather than its legal owner, Sharon Jones. ECF No. 1-1 at 2. However, the South Carolina Supreme Court has consistently held, for well over 100 years, that "burglary is a crime against possession and habitation, not a crime against ownership" and thus "the victim listed in the indictment need not be the owner of the dwelling burglarized." State v. Singley, 709 S.E.2d 603, 605 (S.C. 2011). Rather, "it is sufficient that the alleged victim was the occupant and possessor of the dwelling." Id. Accordingly, Plea Counsel lacked any legal authority to move to quash the indictment on that basis. Because Plea Counsel cannot be ineffective for failing to make a meritless motion, Petitioner has failed to show his underlying ineffective-assistance-of-counsel claim has some merit and cannot rely on Martinez to overcome his procedural default of Ground One.
In Ground Four, Petitioner alleges Plea Counsel was ineffective for failing to advise him that he could enter an Alford plea. ECF No. 1-1 at 9. Petitioner contends "[i]f counsel would have advised defendant of an Alford plea defendant could have better explained his view of the case and the judge would have been able to get a better understanding of whether his plea was involuntary or a product of duress." Id. Petitioner fails to show this allegation has some merit and thus cannot show cause under Martinez to excuse the default of Ground Four.
After the State recited the facts at Petitioner's plea colloquy, the court asked Petitioner if he agreed with those facts and Petitioner stated he did not enter the house to commit a crime or even enter the house at all. App. 53. The court verified with Petitioner that he did shoot the victim and found a factual basis on which to accept Petitioner's plea to voluntary manslaughter and the weapons charge. The court took a recess to allow Plea Counsel to explain Alford pleas to Petitioner. App. 53-56. After the recess, Petitioner had the following exchange with the court:
The Court: Mr. Davis, we are back on the record . . . . We had gotten to the point where Mr. Davis you disagreed with the factual basis for burglary first degree and we talked about - - just briefly, about an Alford plea. Have you had time to talk to your lawyers about what an Alford plea is?App. 56-57. Petitioner then pled guilty to first degree burglary pursuant to Alford and again confirmed he understood what that meant. App. 57-58.
The Defendant: Yes.
The Court: Do you understand that by pleading guilty under what we call State V Alford or North Carolina versus Alford, is that if I ask you how you plea[d] you say you are going to plead guilty under Alford. That means that you would agree that the facts that the State would present is very likely that a jury would find you guilty and that you want to take advantage of the offer that they have given you on the burglary first degree and the sentencing range would be the basis for that plea. So you don't actually have to say that you agree with the facts. You agree that the facts that they will present would likely result in a jury convicting you. Do you understand that?
The Defendant: Yes.
The Court: Do you have any questions about what an Alford plea is?
The Defendant: No.
At the PCR hearing, Plea Counsel testified he had explained to Petitioner that the burglary elements can be satisfied by even the slightest entry, including reaching into the house, and Petitioner never indicated to him before the plea that he had not entered the house. App. 159, 164. Accordingly, Plea Counsel believed Petitioner would admit to entering the house, along with the other facts supporting the burglary charge, so he did not have reason to discuss a possible Alford plea prior to the moment Petitioner disagreed with the facts during his plea. App. 164. Plea Counsel stated he and his co-counsel explained what an Alford plea was when the judge allowed them to do so during the plea hearing and he believed Petitioner understood. App. 160.
Petitioner now apparently argues that Plea Counsel should have advised him regarding Alford pleas prior to his plea hearing so Petitioner "could have better explained his protest against each charge" and his desire to proceed to trial. ECF No. 25 at 6. However, Petitioner does not indicate he informed Plea Counsel at any point that he did not shoot the victim and he has admitted on the record both during his plea and the PCR hearing that he did in fact shoot the victim, thus admitting to the voluntary manslaughter and weapons charges. See App. 54, 137-38. Moreover, Petitioner could have disputed the underlying facts of these charges at the same time he disputed the burglary charge, whether Plea Counsel had previously explained Alford pleas or not. The undersigned cannot see how Plea Counsel could be deficient for not advising Petitioner about a plea option he did not know would be applicable or how Petitioner was prejudiced by Plea Counsel's explanation during the plea hearing. Thus, Petitioner has not shown a viable underlying ineffective assistance of counsel claim and cannot use Martinez to excuse the procedural default of Ground Four.
In Ground Seven, Petitioner alleges Plea Counsel was ineffective for failing to disclose a statement by Mercedes Bland, which he claims was material and exculpatory. ECF No. 1-1 at 15. Petitioner asserts he would have proceeded to trial had he known about Ms. Bland's statement. Id. Petitioner fails to show this claim has some merit.
Ground Seven also presents a claim that the State failed to disclose this information, in violation of Brady v. Maryland, 373 U.S. 83 (1963). The undersigned addresses this claim separately below.
At Petitioner's sentencing hearing, Plea Counsel and counsel for the State referenced a statement from Mercedes Bland, Petitioner's then girlfriend, who was not a witness to the crime. See App. 90-91, 100. According to counsel, Ms. Bland came forward the day of the sentencing and told them Petitioner told her he thought the victim was reaching for something when he shot him. App. 100.
Counsel on both sides also mentioned a pellet gun that was depicted in crime scene photos in the room where the victim was shot, but not taken into evidence. App. 90, 99-100. The State clarified that the pellet gun was located under some debris in a corner and there was no evidence the victim knew it was there. App. 100. During the same hearing, the State informed the court Petitioner had been attempting to solicit perjured testimony while in jail, including asking Ms. Bland to testify that she was with Petitioner at the time of the incident and he was not responsible. App. 84.
It is clear from the record that Ms. Bland did not make her statement until the day of Petitioner's sentencing hearing, after Petitioner had pled guilty. Plea Counsel could not have been aware of the statement before it existed and cannot be ineffective for failing to disclose information of which he was unaware. Further, Petitioner himself had informed Plea Counsel prior to his decision to plead guilty that he thought the victim was reaching for something before he shot him. See App. 138-40, 153-54. Ms. Bland's corroboration that Petitioner had informed her of the same thing did not add relevant evidence unknown to Petitioner or Plea Counsel, or otherwise advance Petitioner's case.
For these reasons, Petitioner fails to show the underlying ineffective-assistance-of-counsel claims in Grounds One, Four, and Seven have some merit and thus has not shown cause and prejudice to excuse his default of these grounds. Accordingly, the undersigned recommends granting Respondent's motion for summary judgment on Grounds One, Four, and Seven.
2. Other Defaulted Grounds
In Ground Two, Petitioner alleges his guilty plea was involuntary because he was induced to plead guilty through suppressed evidence, misrepresentation, and duress. ECF No. 1-1 at 5. Specifically, Petitioner asserts the State failed to disclose information about a pellet gun found at the crime scene and a witness statement suggesting his innocence. ECF No. 1-1 at 5-7. In addition, Petitioner claims Plea Counsel pressured him to enter a plea, despite Petitioner's expressed desire to proceed to trial, and even arranged a contact visit for Petitioner and his family so his family could pressure him to plead. ECF No. 1-1 at 7. Petitioner also claims his decision to enter a plea was influenced by the trial judge's refusal to appoint new counsel if he granted Petitioner's motion to relieve Plea Counsel. ECF No. 1-1 at 7. Petitioner admits he did not present these claims to the highest state court and attributes this failure to PCR Counsel's refusal to raise the issues. ECF No. 1 at 7, 12.
Respondent includes this Ground in its discussion of Petitioner's ineffective-assistance-of-counsel claims but analyzes it primarily as a claim that Petitioner's plea was involuntary. See ECF No. 20 at 23-28. Petitioner frames the issue as "Guilty Plea Involuntary." ECF Nos. 1-1 at 5, 25 at 4. So, the undersigned analyzes Ground Two purely as a claim that Petitioner pled involuntarily.
In Ground Three, Petitioner alleges the trial court erred by accepting his plea, despite knowing a gun found at the crime scene was not put into evidence. ECF No. 1-1 at 8. Petitioner admits he did not raise this ground to the state courts and blames PCR and Appellate Counsels' refusal to present the issue. ECF No. 1 at 12.
In Ground Six, Petitioner presents a freestanding claim of police misconduct for failing to admit the same gun into evidence. ECF No. 1-1 at 13-14. Respondent alleges this ground is procedurally defaulted, ECF No. 20 at 13-14, and Petitioner has not claimed cause and prejudice to excuse the default.
As stated above, ineffective assistance of PCR counsel, on its own, cannot constitute cause for default. Further, the Martinez exception does not extend beyond claims of ineffective assistance of trial counsel, see Davila v. Davis, 137 S.Ct. 2058, 2063 (2017), and Petitioner presents no other argument for excusing the procedural default. Accordingly, Grounds Two, Three, and Six remain defaulted and subject to summary judgment.
B. Ground Five: Ineffective Assistance of Counsel for Failure to Sufficiently Advise of Applicability of Self Defense
In Ground Five, Petitioner alleges Plea Counsel was ineffective for not adequately discussing a possible defense of self-defense. ECF No. 1-1 at 10-12. Petitioner contends he would have proceeded to trial if he had known the elements of self-defense. Id. at 10. Respondent argues the PCR Court correctly decided this issue. ECF No. 20 at 32-36.
After reciting the applicable Strickland and Lockhart standards, the PCR Court found as follows:
Applicant contends Counsel was ineffective for failing to advise Applicant of the ability to present a defense of self-defense at trial. "Counsel's concern is the faithful representation of the interest of his client and such representation frequently involves highly practical considerations as well as specialized knowledge of the law." Tollett v. Henderson, 411 U.S. 258, 267-68 (1973). "A self-defense charge is not required unless it is supported by the evidence." State v. Slater, 373 S.C. 66, 69, 644 S.E.2d 50, 52 (2007) (citing State v. Goodson, 312 S.C. 278, 280, 440 S.E.2d 370, 372 (1994)). In order to establish a defense of self-defense, the defendant must: (1) be without fault in bringing on the difficulty; (2) have been in actual imminent danger of losing his life or sustaining serious bodily injury; (3) show that a reasonably prudent person of ordinary firmness and courage would have entertain[ed] the belief he was actually in imminent danger and the circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or death, if the defense is based upon a defendant's belief of imminent danger; and (4) have had no other probable means of avoiding the danger. Id. at 69-70, 644 S.E.2d at 52. A defendant "who provokes or initiates an assault cannot claim self-defense unless he both withdraws from the conflict and communicates his withdrawal by word or act to his adversary." State v. Jackson, 384 S.C. 29, 36, 681 S.E.2d 17, 20-21 (Ct. App. 2009).
Here, Applicant testified as the victim went to the door, he reached for something towards the side of his body, causing Applicant to shoot at him. He further testified he did not shoot to kill. Applicant elaborated he thought the victim was going to shoot
him, and he feared for his own life. Counsel, however, testified Applicant gave numerous versions of the events of that night, including an alibi defense and self-defense. He explained at times, Applicant would state he saw the victim grab a gun, saw someone else with a gun, and never saw a gun but rather saw a motion. He further explained based on these numerous stories, he explained self-defense to Applicant. Counsel also testified a defense of self-defense at trial would have been difficult, as Applicant's version did not comport with the other witnesses. He testified in order to present such a defense at trial, Applicant would have to testify, which he explained to Applicant.App. 185-88.
This Court finds Counsel's testimony very credible, whereas Applicant's testimony is not credible. Moreover, by Applicant's own admission at the plea, he and Counsel had discussed possible defenses that might have been beneficial. Plea Tr. 15-16. Because Counsel fully explained the elements of self-defense to Applicant and explained the difficulties in presenting a defense of self-defense at trial, this Court finds Applicant has failed to establish Counsel was deficient.
Similarly, this Court further finds Applicant has failed to establish any resulting prejudice from the alleged deficiency. Applicant voluntarily made the decision to plead guilty, indicating no one had promised him anything, threatened him, or coerced him into pleading guilty. Plea Tr. 26. He further indicated he was pleading guilty of his own free will and accord. Plea Tr. 26. Moreover, after the State had given its recitation of the facts, Applicant admitted to shooting the victim. Plea Tr. 27. He further admitted he did not have a good chance of presenting a defense of self-defense at trial. Plea Tr. 27. Applicant understood he could present this defense, yet chose to waive any and all defenses by pleading guilty. Based on all of the foregoing, this allegation must be denied and dismissed with prejudice.
Petitioner disagrees with the PCR court's decision and insists the plea transcript and PCR testimony establish that Plea Counsel did not advise him of each element of self-defense or that Petitioner's version of the facts would warrant a charge on self-defense if he went to trial. ECF No. 25 at 7-8.
At the PCR hearing, Petitioner presented his version of the facts. He testified that he and two friends were driving through his neighborhood and noticed a car that looked like his ex-girlfriend's at a house that is known for selling drugs. App. 134-35. Petitioner and his ex-girlfriend had a child together and Petitioner stated he was concerned the child was in the house, so he asked the driver to stop. App. 135. He stated he had a gun with him for his own safety because he lived in a rough neighborhood, but he did not intend to harm anyone that night. App. 136. Petitioner testified that he knocked on the door and the person who answered, his ex-girlfriend's current boyfriend, made a movement as if he was reaching for a gun, prompting Petitioner to shoot him. App. 137-38. Petitioner stated he told Plea Counsel this version of the facts and repeatedly indicated that he would like to go to trial. App. 139-40, 144. He testified that Plea Counsel did not advise him of the elements of self-defense or that his version of the facts would provide a complete defense to the charges that the State would then have to disprove. App. 141. Petitioner stated he felt Plea Counsel understood that he wanted to go to trial, explain himself, and present a defense, but that he "was trying to be a good lawyer," and "wanted what was best for" him, which Plea Counsel thought was taking a plea. App. 143-44, 145-46. Petitioner testified he would have gone to trial if he had known he could present a defense and argue to a jury that he was not guilty, even though he would have faced multiple life sentences. App. 144-45, 150.
Plea Counsel testified he met with Petitioner close to ten times and Petitioner told him multiple versions of the facts, including an alleged alibi, that he was intoxicated and unaware of what was happening, that the victim grabbed a gun, that he saw a gun, and the version stated above. App. 153-54. He stated that, based on the discovery, he assumed the State would claim the group of people in the house were doing nothing out of the ordinary, heard a knock on the door, and then saw Petitioner shoot the victim as the victim opened the door. App. 153. Plea Counsel stated he was concerned about Petitioner's chances at trial and the possibility of him getting a life sentence. App. 154. He testified that had they proceeded to trial he believed their only chance at success would have been to argue self-defense. App. 157. However, he felt that argument would have been "difficult" because it did not comport with the witness statements. Id. In addition, Plea Counsel believed to advance the self-defense theory, Petitioner would have to testify at trial, which would expose him to cross-examination and potentially pose an ethical problem. Id. Plea Counsel stated he discussed these risks with Petitioner. Id.
When asked if he went over self-defense with Petitioner, Plea Counsel testified:
A. In sort of various forms as he described. He would . . . somewhat withhold details when you would ask him exactly what you think it would be at trial. He would explain, sort of tell me what the defense should be. His stories changed constantly and we would describe if you're talking about self-defense particularly when we talked about item of a gun that was shown in a photo, we would talk to him about the elements of self-defense and specifically we talked about you can't be at fault for bringing on the difficulty.App. 156, 162. Plea Counsel explained that he did not advise Petitioner of that because counsel had no way of knowing which version of events Petitioner would testify to at trial. App. 162-63. He stated he and Petitioner did generally discuss the State's burden if Petitioner were to raise self-defense. App. 163.
. . . .
Q. Did you go over [the] elements of self-defense?
A. Yes, at various time[s].
. . . .
Q. Did you sit down and go through elements one through four with him?
A. I don't know, but we certainly told him you can not be at fault in bringing on the difficulty. We told him that you have to believe in you're in threat of death or serious bodily injury. If it is believed it has to be reasonable, so yes, we did go over. I can not tell you I stated the same four elements every time but we did go over particularly, was he in danger and was he without fault in bringing on the difficulty.
Q. And do you believe that if his testimony that he'd given today was presented at trial would he have been entitled to a self-defense charge?
A. Yes.
The undersigned finds the evidence presented at the hearing supports the PCR court's finding that Plea Counsel was not deficient, and Petitioner was not prejudiced by counsel's performance. The PCR court's factual findings are based in part on its assessment that Plea Counsel's testimony was more credible than Petitioner's. This credibility determination is entitled to deference and the PCR court's factual findings are presumed correct absent "clear and convincing evidence to the contrary." Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)); Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)) ("[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear."); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) ("28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them."). Petitioner's mere disagreement with the PCR Court's interpretation of the record is not enough. See Tice v. Johnson, 647 F.3d 87, 108 (4th Cir. 2011) (quoting Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006)) ("Mindful of the deference owed under AEDPA, we will not discern an unreasonable application of federal law unless 'the state court's decision lies well outside the boundaries of permissible differences of opinion.'").
While Plea Counsel did not state with absolute certainty that he had a meeting with Petitioner at which he advised Petitioner regarding each of the four elements of self-defense, his testimony indicates he and Petitioner discussed the elements of self-defense and the feasibility of presenting such a defense over the course of his representation. Petitioner has never presented a case suggesting counsel has a duty to advise a client in the specific way he suggests, nor would such a case comport with Strickland's directive for courts to conduct a fact-based inquiry into counsel's performance. See Strickland, 466 U.S. at 688-89 ("No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant."). Based on this record and established Supreme Court precedent, the PCR Court could reasonably conclude Plea Counsel reasonably advised Petitioner regarding the elements and feasibility of self-defense, Petitioner was aware self-defense was a possible argument if he went to trial, and Petitioner still chose to plead guilty. Accordingly, Petitioner has failed to show the PCR Court made an unreasonable factual determination or misapplied Strickland, and the undersigned recommends granting Respondent's motion for summary judgment on Ground Five. IV. Recommendation
Based on the foregoing, the undersigned recommends GRANTING Respondent's Motion for Summary Judgment, ECF No. 21, and DISMISSING the Petition, ECF No. 1.
IT IS SO RECOMMENDED. February 26, 2021
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
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).