Opinion
C. A. 0:22-2134-DCC-PJG
01-20-2023
Leroy Glover, Petitioner, v. Warden Jackson, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Petitioner Leroy Glover, 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. 15.) 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. 16.) Petitioner filed a response in opposition to the motion. (ECF No. 24.). 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
On November 20, 2013, Petitioner was indicted in the Orangeburg County Court of General Sessions for murder, possession of a weapon during the commission of a violent crime, and arson. The charges arose from the death of Petitioner's landlord in September 2013, in which Petitioner's brother was also implicated. Petitioner and his brother were tried jointly in September 2015. The State presented evidence that the victim went to Petitioner's and his brother's home to collect rent but was shot by Petitioner during an argument. The State also presented evidence that Petitioner and his brother set fire to their home and drove the victim's body to a wooded area and set the car and body on fire. Petitioner was found guilty of murder and sentenced to life imprisonment. Petitioner's brother was found not guilty, and Petitioner's remaining charges were dropped. Petitioner did not initially file a direct appeal.
Petitioner filed an application for post-conviction relief (“PCR”) on January 26, 2016 in the Orangeburg County Court of Common Pleas. A hearing was held on the application on May 23, 2017. The PCR court issued a final order on November 13, 2017, ruling on the following claims: ineffective assistance of trial counsel for (1) failing to investigate and research favorable evidence, (2) failing to preserve an objection to the introduction of a letter that included the codefendant's confession, and (3) failing to perfect a notice of appeal. The PCR court denied relief on the first two claims but found that, pursuant to White v. State, 208 S.E.2d 35 (S.C. 1974), Petitioner did not knowingly and voluntarily waive his right to a direct appeal and ordered that Petitioner be allowed to file a direct appeal.
Petitioner filed a petition for a writ of certiorari to the South Carolina Supreme Court seeking review of the PCR court's denial of relief as to his second PCR claim-ineffective assistance of counsel for failure to preserve an objection to the letter-and review of his direct appeal claim. The case was transferred to the South Carolina Court of Appeals pursuant to South Carolina Appellate Court Rule 243(l). The Court of Appeals denied certiorari as to the PCR claim but granted certiorari to hear his belated direct appeal. On direct appeal, Petitioner argued that the trial court erred in denying his motion to sever the trial from his co-defendant, but the Court of Appeals found that issue was not preserved for appellate review and affirmed Petitioner's conviction.
FEDERAL HABEAS ISSUES
The petition for a writ of habeas corpus raises the following issues, quoted here verbatim:
Ground One: Trial Counsel was ineffective for failure to investigate.
Supporting Facts: Counsel failed to conduct an investigation of the facts surrounding the case, by not talking to any of the State's witnesses or conducting his own independent investigation of the crime scene and forensic evidence.
Ground Two: Trial counsel failure to object.
Supporting Facts: Counsel failed to object to the erroneous jury instruction of malice, and when the Judge upon Jury request instructed Jury again on malice as well as reasonable doubt instruction which contributed to this verdict.
Counsel also failed to object to the trial courts failure to sever trials.
Ground Three: Trial court failure to sever case.
Supporting Facts: Trial court failed to sever trial with co-defendant when co defendant was going to use a expert to show the letter was forged.(Pet., ECF No. 1 at 5, 7-8) (errors in original).
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Habeas Corpus Standard of Review
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas corpus relief unless the decision was “contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States,” or the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1), (2). When reviewing a state court's application of federal law, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 410 (2000); see also White v. Woodall, 572 U.S. 415, 419 (2014) (describing an “unreasonable application” as “objectively unreasonable, not merely wrong” and that “even clear error will not suffice”) (internal quotation marks and citation omitted); Harrington v. Richter, 562 U.S. 86, 100 (2011); Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005); McHone v. Polk, 392 F.3d 691 (4th Cir. 2004). Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
“A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White, 572 U.S. at 419-20 (stating that “ ‘[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' ”) (alteration in original) (quoting Harrington, 562 U.S. at 103). Under the AEDPA, a state court's decision “must be granted a deference and latitude that are not in operation” when the case is being considered on direct review. Harrington, 562 U.S. at 101. Moreover, review of a state court decision under the AEDPA standard does not require an opinion from the state court explaining its reasoning. See id. at 98 (finding that “[t]here is no text in [§ 2254] requiring a statement of reasons” by the state court). If no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. Id. Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories supported or could have supported the state court's decision; and then (2) ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of the United States Supreme Court. Id. at 102. “If this standard is difficult to meet, that is because it was meant to be.” Id. Section 2254(d) codifies the view that habeas corpus is a “ ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Id. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
C. Exhaustion Requirements
A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that “when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”). To exhaust his available state court remedies, a petitioner must “fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim.” Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider only those issues which have been properly presented to the state appellate courts with jurisdiction to decide them. Generally, a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth, 377 F.3d at 447-48; see also Coleman v. Thompson, 501 U.S. 722 (1991). For a procedurally defaulted claim to be properly considered by a federal habeas court, the petitioner must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
D. Respondent's Motion for Summary Judgment
1. Cognizable Claims
A district court may only entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“It is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions.”); Pulley v. Harris, 465 U.S. 37, 41(1984) (“A federal court may not issue the writ [of habeas corpus] on the basis of a perceived error of state law.”). Here, Ground Three raises an issue of purely state law-whether the trial court erred by not severing the trials of Petitioner and his co-defendant. This claim is not cognizable in a federal habeas court, absent a showing of extraordinary circumstances, which Petitioner has not demonstrated. See Richardson v. Kornegay, 3 F.4th 687, 696 (4th Cir. 2021) (stating that obtaining federal habeas review of a state law question requires “either that the error was so extreme as to result in the denial of a constitutionally fair proceeding or that it infringed specific constitutional protections”) (internal quotation marks and alterations omitted). Consequently, Respondent is entitled to summary judgment as to Ground Three.
2. Procedural Bar
Respondent argues that Grounds One and Two are procedurally barred from federal habeas review. The court agrees. Ground One was raised to and ruled on by the PCR court, but Petitioner did not include that issue in his petition for a writ of certiorari or briefing for his PCR appeal. Therefore, the issue was not preserved for review by the South Carolina Court of Appeals. See McCray v. State, 455 S.E.2d 686, n.1 (S.C. 1995) (stating issues not raised in a petition for a writ of certiorari from the denial of a petitioner's PCR application are not preserved for appellate review). Petitioner raises two separate issues in Ground Two, but neither issue was raised to the PCR court. Therefore, the issues were not preserved for review in the South Carolina Court of Appeals. See Plyler v. State, 424 S.E.2d 477, 478 (S.C. 1992) (stating issues not raised to and ruled on by the PCR court are not preserved for review on appeal). Because the issues in Grounds One and Two are barred by independent state appellate court rules, the issues are procedurally barred from review in a federal habeas proceeding. See Lawrence, 517 F.3d at 714. Additionally, Petitioner fails to argue that he can demonstrate cause to excuse the procedural bar of his claims, or that the court's failure to consider his claims would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. Consequently, Respondent is entitled to summary judgment as to Grounds One and Two.
RECOMMENDATION
For the foregoing reasons, the court recommends Respondent's motion for summary judgment (ECF No. 15) be granted and the Petition denied.
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).