Opinion
C. A. 9:23-cv-03391-SAL-MHC
04-10-2024
Rasheed Tamir Glover, Petitioner, v. Shane Jackson, Warden, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Petitioner Rasheed Tamir Glover, (“Petitioner”), is seeking a writ of habeas corpus under 28 U.S.C. § 2254. 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, ECF No. 14.
Petitioner, through counsel, filed this action on July 15, 2023. ECF No. 1. Respondent filed a Return and Memorandum, as well as a Motion for Summary Judgment on November 6, 2023. ECF Nos. 13, 14. Respondent filed an amended Return and Memorandum the following day. ECF No. 15. Petitioner responded on December 4, 2023, and Respondent filed a Reply on December 11, 2023. ECF Nos. 19, 20. Accordingly, this matter is now fully briefed and ripe for disposition. After a full review of the state court record and the parties' arguments, the undersigned recommends granting Respondent's Motion for Summary Judgment.
Respondent amended the Return to remove duplicate attachments. See ECF No. 15 at 8, n.7. There are no material differences between the original and amended memoranda.
I. BACKGROUND
On January 1, 2015, Petitioner and four friends robbed a convenience store in Conway, South Carolina. The Horry County Grand Jury indicted Petitioner for armed robbery on March 27, 2015. ECF No. 13-1 at 219-21. On October 12, 2015, Petitioner, who had been released on bond, failed to appear for trial and the case proceeded in his absence before the Honorable R. Ferrell Cothran. Id. at 3. Attorney Johnny Gardner represented Petitioner at trial. Id. The jury found Petitioner guilty as charged and Judge Cothran issued a sealed sentence, to be read to Petitioner upon his arrest. Id. at 204-05.
On March 15, 2016, Petitioner appeared before the Honorable Steven H. John for sentencing. Id. at 207. Mr. Gardner was in another trial, so Petitioner was represented by his law partner, Jarrett Bouchette. Id. Judge John read Petitioner's 25-year sentence into the record. Id. at 209. However, realizing Mr. Bouchette was not Petitioner's trial counsel, Judge John offered to hold the matter in abeyance until Mr. Gardner could appear. Id. at 210. The parties agreed, and the remainder of the hearing was continued until March 17, 2016. Id. at 210-11. At that time, Petitioner and Mr. Gardner appeared before Judge John, and Judge John denied Mr. Gardner's post-trial motions, including his request to reconsider Petitioner's sentence. Id. at 211-16.
Petitioner filed a timely appeal and Appellate Defender Kathrine. H. Hudgins filed an Anders brief on his behalf, raising one issue:
Anders v. California, 386 U.S. 738 (1967).
Did the judge who unsealed and pronounced sentence following a trial in the Appellant's absence abuse his discretion in refusing to reconsider the twenty five year sentence imposed by the trial judge when a co-defendant received a lesser sentence and the record fails to reflect an appropriate basis for the disparate sentence?ECF No. 13-2 at 21. The South Carolina Court of Appeals dismissed the appeal on May 17 and remitted the matter to the lower court on June 2, 2017. Id. at 32-34.
The Court of Appeals' order of dismissal references a pro se appellate brief, but none is included in the record before the Court. In addition, the Court's copy of the record does not include any briefing by the State. However, the parties do not rely on these documents in their arguments, nor has the undersigned found them necessary for the disposition of the relevant issues.
Petitioner filed a pro se application for post-conviction relief (“PCR”) on May 2, 2018. ECF No. 13-2 at 35-44. Petitioner's appointed counsel, Tricia A. Blanchette, later amended his application to include the following grounds for relief:
1. Ineffective assistance of counsel for failure to actively negotiate a plea offer and/or ensure that Applicant had the opportunity to properly reject the opportunity to enter a guilty plea.
2. Ineffective assistance of counsel for failure to properly advise Applicant about being tried in his absence if he did not appear for trial.
3. Ineffective assistance of counsel for failure to move for a continuance prior to jury selection and/or object to the trial in Applicant's absence.
4. Ineffective assistance of counsel for failure to offer meaningful representation during the sentencing phase of Applicant's trial.
5. Ineffective assistance of counsel related to the hearing to open Applicant's sentence and for post trial motions, specifically, but not limited to:
a. Failure to have knowledge of, prepare for and be present at the hearing opening Applicant's sentence. Additionally, failure to ensure that the representative that appeared on his behalf was properly prepared and advocating for Applicant.
b. Ineffective assistance of counsel for failure to make an oral or written request and/or objection for additional time and/or for the trial court to hear Applicant's post trial motions.
c. Ineffective assistance of counsel for failure to be properly prepared to provide information beneficial to Applicant or make arguments at the final motion hearing.Id. at 59. The Honorable Paul Burch conducted an evidentiary hearing on March 31, 2021, and heard testimony from Petitioner, two mitigation witnesses, and Mr. Gardner. Id. at 61-143. Judge Burch dismissed Petitioner's application on May 11, 2021. ECF No. 13-9. Petitioner filed a motion to alter or amend the order, along with a proposed amended order, ECF No. 13-2 at 181-221, which Judge Burch denied on September 10, 2018, id. at 222-25.
Respondent notes the executed Order of Dismissal is included in the record at ECF No. 13-9. ECF No. 15 at 6, n.3. That document appears to be the same as the order located in the record at ECF No. 13-2 at 150-80, which is also signed by Judge Burch. But, for ease of reference and consistency, all cites to the PCR dismissal order will be to ECF No. 13-9.
Ms. Blanchette continued to represent Petitioner on appeal and filed a petition for writ of certiorari to the South Carolina Supreme Court based on one issue: “Whether the lower court erred for failing to find counsel provided ineffective assistance during sentencing and post-trial motion hearings and that prejudice resulted.” ECF No. 13-4 at 1, 3. Pursuant to local rules, the South Carolina Supreme Court transferred the matter to the Court of Appeals, ECF No. 13-6, which denied the petition on June 7, 2023, ECF No. 13-7. The matter was remitted to the lower court on June 23, 2023. ECF No. 13-8. This action followed.
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, 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, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only 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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). ECF No. 1. Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under § 2254(d):
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 with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(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 determination of the facts in light of the State court proceeding.28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”).
A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under § 2254(d)(1) focuses on what a state court knew and did,” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[] [thus,] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “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, 529 U.S. at 410. Further, factual findings “made by a State court shall be presumed to be correct,” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
C. 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 default/bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before a petitioner has appropriately exhausted available state-court remedies or after a petitioner has otherwise defaulted/bypassed seeking relief in the state courts will be dismissed absent unusual circumstances, as detailed below.
1. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies. See 28 U.S.C. § 2254(b)-(c). The statute requires that, before seeking habeas corpus relief, a petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Stated plainly, in the interest of giving state courts the first opportunity to consider alleged constitutional errors in state proceedings, a § 2254 petitioner is required to “exhaust” all state remedies before a federal district court can entertain his claims. Thus, a federal habeas court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
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 an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 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), SCRCP. Failure to do so will generally result in the application of a procedural bar by the South Carolina Supreme Court. See Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009) (discussing procedural bar and noting the “general rule” in South Carolina is that where a party fails to file a Rule 59(e) motion, the argument is forfeited). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR application in the 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. In South Carolina, a claim is not procedurally barred from review in this Court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals. See Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (S.C. 1990) (“[W]hen 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.”).
2. Procedural Default/Bypass
When a federal habeas petitioner has failed to raise a claim at the appropriate time in state court and has no further means of bringing that issue before the state courts, the claim will be considered procedurally defaulted, and he will be procedurally barred from raising the issue in his federal habeas petition. Smith v. Murray, 477 U.S. 527, 533 (1986). This situation is sometimes referred to as procedural bypass, as the petitioner has “bypassed” his state remedies. In other words, procedural default/bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Id. Procedural default/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. See, e.g., Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)). 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). If a federal habeas petitioner has procedurally defaulted his opportunity for relief in the state courts, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear. Teague v. Lane, 489 U.S. 288, 297-98 (1989).
3. Cause and Actual Prejudice
Notwithstanding the foregoing, a federal court may consider claims that have not been presented to the highest South Carolina court with jurisdiction in very limited circumstances. See Granberry v. Greer, 481 U.S. 129, 131 (1987). Indeed, because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the state's courts 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 by “prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008).
A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Murray v. Carrier, 477 U.S. 478, 488-97 (1986). 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 to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Id. at 496.
D. Ineffective Assistance of Counsel
All five of Petitioner's grounds for federal habeas relief allege his trial counsel provided ineffective assistance and the PCR court unreasonably found otherwise. A meritorious ineffective assistance of counsel claim must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984). A court's evaluation of counsel's performance under this standard must be “highly deferential,” to not “second-guess” the performance. Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).
To establish the second prong of Strickland, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id.
While Strickland itself is a deferential standard, when both § 2254(d) and Strickland apply, review is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). “Thus, [t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Valentino, 972 F.3d at 580 (citation and internal quotation marks omitted). Indeed, when § 2254(d) applies, the question becomes “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. (citation and internal quotation marks omitted).
After a thorough review of the record, the undersigned finds Petitioner fails to meet his burden under Strickland and § 2254(d).
III. DISCUSSION
Petitioner raises the following grounds for federal habeas relief:
Ground One: Ineffective assistance of counsel for failure to actively negotiate a plea offer and/or ensure that Applicant had the opportunity to properly reject the opportunity to enter a guilty plea.
Ground Two: Ineffective assistance of counsel for failure to properly advise Applicant about being tried in his absence if he did not appear for trial.
Ground Three: Ineffective assistance of counsel for failure to move for a continuance prior to jury selection and/or object to the trial in Applicant's absence.
Ground Four: Ineffective assistance of counsel for failure to offer meaningful representation during the sentencing phase of Applicant's trial.
Ground Five: Ineffective assistance of counsel related to the hearing to open Applicant's sentence and for post trial motions, specifically, but not limited to:
1. Failure to have knowledge of, prepare for and be present at the hearing opening Applicant's sentence. Additionally, failure to ensure that the representative that appeared on his behalf was properly prepared and advocating for Applicant.
2. Ineffective assistance of counsel for failure to make an oral or written request and/or objection for additional time and/or for the trial court to hear Applicant's post trial motions.
3. Ineffective assistance of counsel for failure to be properly prepared to provide information beneficial to Applicant or make arguments at the final motion hearing.ECF Nos. 1 at 6, 17.
The original Petition only raises one ground -“The lower court (state court) erred by failing to find counsel provided ineffective assistance during sentencing and post-trial motion hearings, and prejudice resulted.” See ECF No. 1 at 6. This is the only portion of Section 12 of the federal habeas form petition that counsel completed. See id. at 8-12 (grounds two through four left blank). Counsel attached an “Addendum” to the Petition with responses to questions 11(a)(5)- the grounds Petitioner raised in his PCR application-and 12(a)-the supporting facts for ground one of the federal habeas petition. See id. at 4 (noting “See Addendum” in response to question 11(a)(5)), 6 (noting “See Addendum” in response to question 12(a)), 17 (addendum providing responses to 11(a)(5) and 12(a)). Petitioner's counsel's choice to raise only that one ground is consistent with the only ground properly exhausted in the state courts. Despite acknowledging that Petitioner only presented one ground in his petition for writ of certiorari to the South Carolina Supreme Court, ECF No. 15 at 7, Respondent found all five habeas grounds “properly exhausted” and “ripe for consideration” because “Petitioner presented all five of his claims to the the undersigned addresses the merits of all five grounds that have been briefed. See Gray v. Netherland, 518 U.S. 152, 165-66 (1996).
A. Ground One
In Ground One, Petitioner asserts Mr. Gardner was ineffective for failing to actively negotiate a plea offer and/or ensure that Petitioner “had the opportunity to properly reject the opportunity to enter a guilty plea.” ECF No. 19 at 18.
Because Grounds One through Three were not raised in the Petition, the undersigned refers to Petitioner's Response to the Motion for Summary Judgment when discussing these grounds.
Prior to Petitioner's trial, the State extended an initial plea deal of ten-to-fifteen years' imprisonment. ECF No. 13-2 at 76-77. Mr. Gardner communicated the offer to Petitioner, who rejected it because he wanted no more than ten years' imprisonment or to be sentenced under the Youthful Offenders Act. Id. Petitioner asked Mr. Gardner to continue negotiating, id. at 93, and Mr. Gardner was unable to get a more favorable offer, id. at 108-09. Petitioner and Mr. Gardner met the Friday before trial to finish preparing. Id. at 78-79, 109-10. Petitioner knew his trial was set to begin the following Monday and that he was expected to appear. Id. 79, 93. However, without notice to Mr. Gardner, Petitioner failed to appear for trial. Id. at 93.
The PCR court evaluated this claim under Strickland and the Supreme Court's precedents governing counsel's duty to communicate formal plea offers. See ECF No. 13-2 at 163-67 (citing Missouri v. Frye, 566 U.S. 134 (2012); Lafler v. Cooper, 566 U.S. 156 (2012)). Under these precedents, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused,” and a PCR court.” Id. at 11. Respondent is incorrect. See Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (explaining that under the doctrine of procedural default, “federal courts generally decline to hear any federal claim that was not presented to the state courts consistent with the State's own procedural rules” (cleaned up)); Clagett v. Angelone, 209 F.3d 370, 378 (4th Cir. 2000) (explaining that federal courts can treat as procedurally defaulted those claims that were “not exhausted in state court but would now be procedurally barred if brought in state court”). However, because Respondent did not raise procedural default, which is an affirmative defense that is waived if not raised, court may find counsel ineffective if his faulty advice caused a defendant to reject a plea bargain and proceed to trial. Frye, 566 U.S. at 145; Lafler, 566 U.S. at 163. “To establish Strickland prejudice . . . a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler, 566 U.S. at 163. Where a defendant alleges counsel's incompetent advice led him to refuse an offer, he “must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgement and sentence that in fact were imposed.” Id. at 163-64.
Applying the above law to the facts of Petitioner's case, the PCR court found:
Testimony and evidence presented at the PCR hearing, including one of Applicant's own exhibits, shows that he was extended an offer of ten to fifteen years' imprisonment in exchange for a guilty plea. Both applicant and his trial counsel testified that he rejected the offer because he wanted to serve less time and wanted to be sentenced under a different statutory scheme. His trial counsel further testified that he continued with the negotiations, but no further offers were extended. It is clear from this testimony that Applicant was made aware of the offer, given an opportunity to consider it, and chose to reject it because he was not satisfied with its terms. Therefore, Applicant has failed to show that a plea offer would have been accepted but for his counsel's errors, and has not met his burden of proving deficiency or prejudice from his trial counsel's handling of his plea negotiations. Post-conviction relief must be denied on these grounds and the allegation must be dismissed with prejudice.ECF No. 13-9 at 19.
Petitioner does not dispute that the State offered a ten-to-fifteen-year plea deal prior to trial or that he and Mr. Gardner met and discussed the offer. See ECF No. 19 at 18; ECF No. 132 at 79. Petitioner also agrees he asked Mr. Gardner to “push for a ten-year cap” or to be sentenced under the Youthful Offender Act. Id.; ECF No. 13-2 at 76. However, Petitioner maintains he told Mr. Gardner in their last meeting before trial that he wanted to accept the offer that was already on the table. Id.; ECF No. 13-2 at 78-79. In addition, he argues “there is no evidence that” Mr. Gardner “ever pushed for a more favorable plea deal, nor did [Mr. Gardner] inform the trial court or the State that” Petitioner intended to plead guilty. Id. This, argues Petitioner, was constitutionally ineffective assistance of counsel and the PCR court erred by failing to address these claims. Id.
The PCR court did, however, address these claims. The court accurately summarized relevant portions of the parties' testimony at the PCR hearing, including Petitioner's expressed desire for Mr. Gardner to continue negotiations and Mr. Gardner's belief that he did continue to negotiate, but was unsuccessful. See ECF No. 13-2 at 158, 161. And, in addressing this specific claim, the court reasoned, “trial counsel . . . testified that he continued with the negotiations, but no further offers were extended.” Id. at 168. The court reasonably relied on trial counsel's testimony that he attempted to obtain a better plea offer, as there was no evidence to the contrary.
Regarding Petitioner's allegation that Mr. Gardner was ineffective for failing to inform the State or trial court of Petitioner's desire to plead guilty, that claim was not specifically raised to the PCR court. See ECF No. 13-2 at 225. Petitioner did testify at the PCR hearing that he told Mr. Gardner in their final meeting before trial that he wanted to accept the plea offer. Id. at 79. Mr. Gardner did not have the same recollection but did express his belief that if Petitioner had appeared for his trial, “he probably would have gotten 10 years and would not have had a trial.” Id. at 109-10, 119. The issue was not that Mr. Gardner failed to communicate Petitioner's desire to enter a plea, it was that Petitioner failed to appear for his trial and thus forfeited the opportunity to enter a plea. In any case, Petitioner fails to offer any precedent suggesting a failure to communicate a client's desire to plead guilty to prosecutors or the trial court is constitutionally ineffective performance. Nor has Petitioner shown an error by the PCR court in failing to consider a claim that was not directly presented. For these reasons, the court recommends granting Respondent's motion for summary judgment as to Ground One.
B. Grounds Two and Three
In Ground Two, Petitioner asserts Mr. Gardner was ineffective for failing to properly advise him of the consequences of not appearing for his own trial. ECF No. 19 at 19-20. In Ground Three, Petitioner argues Mr. Gardner was ineffective for failing to move for a continuance when Petitioner failed to appear or object to holding the trial in Petitioner's absence. Id. at 20-21. The PCR court addressed these claims together, see ECF No. 13-9 at 19-21, and the undersigned will do the same.
The PCR court first explained the relevant state court precedent. In South Carolina, a defendant may voluntarily waive his Sixth Amendment right to be present at trial and his trial may proceed in his absence if the trial court finds the defendant has received notice of his right to appear “and a warning was given that the trial would proceed in his absence upon a failure to attend the court.” Rule 16, SC R. Crim. P.; see also City of Aiken v. Koontz, 629 S.E.2d 686, 689 (S.C. 2006) (explaining the trial court must find, on the record, that the defendant received notice and a warning before proceeding with a trial in absentia).
Applying this law alongside Strickland, the PCR court found:
The trial transcript shows that trial counsel specifically moved for a continuance prior to the first witness being sworn. It also clearly shows that Applicant was provided with notice of the date of his trial, told that his attendance was expected, and that the trial would proceed in his absence if he failed to appear. Trial counsel testified that he provided Applicant with specifics regarding the date, and was certain that Applicant knew when the trial would occur. He further testified that he informed Applicant that the trial would proceed, even if he did not show up. His trial counsel also stated that Applicant would have likely had an opportunity to enter a plea and avoid the trial entirely had he shown up, and would have likely received less time.
Applicant testified at his PCR hearing that he knew the date of his trial and that he was expected to be present, but was scared and therefore did not appear. He claimed to have thought that there would simply be no trial if he did not appear. He did not explain why his fears about attending his trial would have subsided had a continuance been granted. The record shows that trial counsel properly advised Applicant that his trial would go forward with or without him, and that he moved for a continuance when Applicant failed to appear. As such, Applicant has shown neither deficiency not prejudice resulting from trial counsel's performance. Therefore, this allegation is without merit, relief is denied, and the allegation is dismissed with prejudice.ECF No. 13-9 at 20-21.
Petitioner contends the PCR court unreasonably concluded that Mr. Gardner informed him of the consequences of failing to appear for trial. ECF No. 19 at 19-20. Petitioner argues he “provided clear and unequivocal testimony that he was unaware of the consequences of failing to appear, and that his trial attorney did not offer clear rebuttal of that fact.” Id. at 20. This court must presume that the PCR court's factual determinations are correct and it is incumbent on Petitioner to show otherwise “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Petitioner is correct that Mr. Gardner's testimony was somewhat vague. At the hearing, Mr. Gardner stated he “could not testify that [he] actually told” Petitioner that he could be tried in his absence if he did not appear, but that “that was the vibe of [their] conversation” at their last meeting. ECF No. 13-2 at 110. However, the PCR court also considered the trial transcript, which includes an on-the-record hearing to determine whether Petitioner had voluntarily waived his right to appear for trial. See ECF No. 13-1 at 21-28. At that hearing, court personnel presented a copy of the surety bond paperwork sent to Petitioner and read the following notice from that paperwork into the record:
I understand that if I violate any condition of this order, a warrant for my arrest will be issued. I understand and have been informed that I have the right and
obligation to be present at trial and should I fail to attend the Court, the trial will proceed in my absence. It has been explained to me that if I fail to appear before the Court as required, a warrant for my arrest will be issued.Id. at 23-24. Court personnel testified under oath that the form contained Petitioner's signature. Id. at 24. Thus, even if Mr. Gardner did not clearly convey to Petitioner the consequences of not showing up for his own trial, the PCR court reasonably concluded, based on the record before it, that Petitioner had been warned of those consequences.
In his federal habeas briefing, Petitioner stops arguing Mr. Gardner was ineffective for failing to move for a continuance. See ECF No. 19 at 20-21. Instead, he continues to argue Mr. Gardner had a duty to inform the court and prosecutors that Petitioner wanted to plead guilty. Id. The court addressed this claim in its discussion of Ground One and Petitioner does not offer any additional facts or legal authority to alter that discussion.
Petitioner fails to show the PCR court's decision concerning Grounds Two and Three was unreasonable in either fact or law and the undersigned recommends granting Respondent's motion for summary judgment as to these grounds.
C. Grounds Four and Five
In Ground Four, Petitioner contends Mr. Gardner failed to offer meaningful representation during the sentencing phase of his trial. ECF No. 19 at 21-22. Ground Four concerns Mr. Gardner's performance before the trial judge, Judge Cothran, determined Petitioner's sentence and sealed it, not Mr. Gardner's performance at the hearing when Petitioner's sentence was unsealed or the reconsideration hearing. Petitioner alleges at this juncture his “[t]rial counsel was constitutionally ineffective based on his failure to offer any mitigation testimony or argument whatsoever” to the trial judge. Id. at 21 (emphasis in original). In Ground Five, Petitioner alleges Mr. Gardner provided ineffective assistance in various respects during the unsealing and reconsideration hearings. ECF Nos. 1 at 17-18, 19 at 23-27.
At the end of Petitioner's trial, after the jury delivered its verdict and was dismissed, the following exchange took place:
THE COURT: Okay. If you'll give me a sentencing sheet and if you'll give me an envelope. Does [Petitioner] have a prior record?
MS. RICHARDSON: . . . [N]o, sir. He has a 2014 assault and battery, third degree.
THE COURT: Okay. And I assume there's a bench warrant out there for his arrest?
MS. RICHARDSON: He has a 2014 public disorderly, a couple of charges with no disposition. Your Honor, we had issued a bench warrant for him . . . our Deputy has to sign it so that it can go multistate but there is a bench warrant out.
THE COURT: Okay. Well, when he's arrested, I don't know if I'll still be here or not but you can bring him before some judge and he'll open this sentence and read it to him and see what happens.ECF No. 13-1 at 205. That was the extent of the sentencing proceeding before the trial judge.
After Petitioner's arrest, he appeared before Judge John, represented by Jarrett Bouchette, Mr. Gardner's law partner. ECF No. 13-1 at 207-11. At that hearing, Judge John was informed that Mr. Gardner was in trial and unable to appear on Petitioner's behalf. Id. at 209. Judge John unsealed Petitioner's sentence and asked if the defense had any motions, and Mr. Bouchette said he did not. Id. Judge John then offered to hold the hearing in abeyance until Mr. Gardner could be present. Id. at 210.
The parties appeared before Judge John again two days later, this time with Mr. Gardner representing Petitioner. Id. at 211. By way of motions and argument, Mr. Gardner offered the following:
We would make our standard post-trial motions, which I know it's different in
criminal than they are civil. I believe the remedy we would ask for would be a new trial and in the alternative . . . to reconsider the sentence. ...
Rasheed Glover has no prior record. This is his first conviction. I understand it was a big one but by comparison, I would point out to the - - I believe . . . that the codefendants all got ten years and there's one waiting to be sentenced that testified. And I think that the ten-year mark is probably fair and I'd ask the Court to consider that based on he's twenty . . . years old, he lives here in Horry County and no children and not married.Id. at 211-12. Mr. Gardner also briefly raised Petitioner's concern that he had received a longer sentence than his codefendants because he failed to appear for his trial. Id. at 214. The State argued Petitioner's lengthier sentence was proportional to his participation in the crime. Id. at 213-14. Petitioner was one of two people who actually entered the convenience store and held the clerk at gunpoint. Id. The other man who entered the store received a reduced sentence, but only after testifying at Petitioner's trial. Id. After hearing the parties' arguments, Judge John denied Mr. Gardner's post-trial motions and declined to reconsider the sentence. Id. at 215-16. He mentioned that he did not have a copy of the trial transcript because one did not yet exist and that he was not “the trial judge who listened to all of the testimony in this matter.” Id. at 215. Judge John based his decision on the following factors: sentences for armed robbery ranged from ten to thirty years, South Carolina classified armed robbery as a violent and most serious offense, and Petitioner was “an actual participant in the crime” who was armed and inside the convenience store. Id.
Concerning Mr. Gardner's performance prior to Judge Cothran's sentencing decision, Petitioner stated at the PCR hearing that he would have liked Mr. Gardner to speak on his behalf at that time, “if given the opportunity.” ECF No. 13-2 at 81. Mr. Gardner explained he “probably” did not speak at that point because he “was trying to not make the Judge mad or any madder,” reasoning, “if I was the Judge, and I just sat through a however [] many days trial this was, I would - - and the client wasn't there, I wouldn't want a whole bunch of reasons why you know I would just do my sentence and be done with it.” Id. at 111-12.
Although Petitioner raised this claim in his PCR application and the parties discussed it at the hearing, the PCR court did not specifically address it its order dismissing Petitioner's application. See ECF No. 13-2 at 59 (amended PCR application), 81 (Petitioner's testimony), 111-12 (counsel's testimony). Instead, the order focused on Mr. Gardner's alleged failures during the two post-trial sentencing hearings before Judge John. See id. at 170-79. Petitioner noted this error in his motion to alter or amend. Id. at 187. In denying that motion, the PCR court still did not specifically address the allegation of deficient performance in sentencing before the trial judge but appears to have combined the prejudice analysis for all the sentencing allegations, finding Petitioner failed to show additional evidence would have changed the outcome of either the sentencing or reconsideration hearings. See id. at 224-25.
Respondent apparently interpreted Ground Four as a challenge to counsel's failure to appear at the first post-trial sentencing hearing, when Judge John unsealed Petitioner's sentence. See ECF No. 15 at 17-18.
It is possible the PCR court blurred the allegations either to give Petitioner the benefit of the doubt or to streamline the analysis. Petitioner was required to present to the PCR court any evidence he alleged should have been presented to the trial court. During the PCR hearing, Petitioner's mitigation witnesses testified to their willingness and ability to appear at the posttrial reconsideration hearing before Judge John but were not questioned about the original sentencing before Judge Cothran. See ECF No. 13-2 at 104, 106. Petitioner thus failed to establish the evidence was available to Mr. Gardner during sentencing. However, because Petitioner appeared to rely on the same evidence for both claims, a finding that the evidence would not alter Petitioner's sentence would apply to both allegations.
Regarding Ground Four, Petitioner argues Mr. Gardner was ineffective for failing to present to Judge Cothran the mitigating evidence Petitioner presented at his PCR hearing. ECF No. 19 at 22. Ground Five advances three separate allegations of ineffectiveness during the unsealing and reconsideration hearings: (1) failure to have knowledge of, prepare for, and be present at the hearing opening Petitioner's sentence or ensure the representative appearing with Petitioner was adequately prepared; (2) failure to move for additional time to prepare or for Judge Cothran to hear the post-trial motions; and (3) failure to prepare and present evidence and arguments in favor of reducing Petitioner's sentence. Id. at 23. The allegations in both grounds boil down to the same claim-Mr. Gardner failed to adequately prepare for sentencing and present mitigating evidence, whether that be at the conclusion of trial or in the reconsideration hearing. Thus, the PCR court's prejudice analysis applies equally to both grounds. Accordingly, the undersigned focuses its discussion on Strickland's prejudice prong. See Strickland, 466 U.S. at 697 (“a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies”).
Moreover, while Petitioner devotes several pages of his brief to Ground Five, the only specific allegation of error by the PCR court concerns the court's interpretation of Petitioner's proposed mitigation evidence and finding that Petitioner failed to show presentation of that evidence would have changed Petitioner's sentence. See ECF No. 19 at 23-26.
Regarding the sentencing claims, the PCR court found Petitioner had
failed to show deficiency or prejudice from his counsel's performance at the sentencing hearing because he has not produced evidence that, had it been presented, would have reasonably altered the outcome of the sentencing hearing under an abuse of discretion standard. He does not allege that his sentence exceeded the limits provided for by statute. Instead, at the PCR hearing, all he presented was testimony that shows “that numerous people who knew [him] thought he was generally a good person.” Without more, there is no reason to believe his sentence would have been reduced had his counsel provided the additional evidence requested.ECF No. 13-2 at 176 (quoting Strickland, 466 U.S. at 700). The PCR court thus relied on Strickland's admonition that “[e]vidence showing that ‘numerous people who knew respondent thought he was a generally good person' is not enough to find a ‘reasonable probability that the omitted evidence would have changed the conclusion . . . and, hence, the sentence imposed.'” Id. at 175 (quoting Strickland, 466 U.S. at 700).
Petitioner argues the PCR court relied on “an incorrect recitation of the Strickland standard, and accordingly the PCR court's conclusion of law is not entitled to deference in this proceeding.” ECF No. 19 at 26. Notably, Petitioner does not specify exactly how the court's interpretation of the standard was in error or offer an alternative standard. Nor does Petitioner contest the PCR court's finding that the evidence offered at the PCR hearing amounted to nothing more than vague character evidence. The undersigned has reviewed the relevant law and the record before the PCR court and finds no apparent error.
“[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” Strickland, 466 U.S. at 693. “When a defendant challenges a . . . sentence . . ., the question is whether there is a reasonable probability that, absent [counsel's] errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant” the sentence imposed. Id. at 695. “In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury,” id., and “reweigh the evidence in aggravation against the totality of available mitigating evidence,” Wiggins v. Smith, 539 U.S. 510, 534 (2003).
At the evidentiary hearing, Petitioner offered testimony from two mitigation witnesses- his girlfriend, Samantha Daley, and his mother, Roslyn Glover. ECF No. 13-2 at 102-07. Both testified they would have spoken on Petitioner's behalf at either hearing before Judge John and read their statements into the record. Id. Ms. Daley informed the court she was a nurse and had known Petitioner since their freshman year of high school. Id. at 145. She stated Petitioner was attending college and working and that he was generally regarded as loving, supportive, reliable, hard-working, and determined. Id. She asked the court to allow Petitioner to “live out his true potential” as a “beneficial part of the community and this world.” Id. Ms. Glover echoed Ms. Daley's endorsement, adding that “[g]rowing up was not an easy task for” Petitioner and that he “knew the difference between respect and fear.” Id. at 146.
In addition, Ms. Daley gathered letters of support from her mom, Michelle Daley; Petitioner's oldest sister, Elaina L. Whittington; and Petitioner's former football coach, Pete Wilkes, III. See id. at 147-49. These letters paint Petitioner as a star student and athlete who made some unfortunate choices but took full responsibility for his actions and expressed deep remorse. Id.
The PCR court considered these letters, ECF No. 13-9 at 25, and correctly noted these types of claims generally require a showing “that counsel failed to present strong evidence of mitigating circumstances, such as a history of mental health issues, drug abuse, childhood trauma, or limited intellectual capacity,” Id. at 26 (citing Council v. State, 670 S.E.2d 356 (S.C. 2008)). The undersigned finds no error in the PCR court's determination that the letters offered into evidence did not reveal the type of mitigating circumstances courts have found sufficient and in fact mirrored the type of evidence Strickland proclaimed insufficient. See, e.g., Strickland, 466 U.S. at 699-700 (finding general evidence of good character not enough to prove prejudice); Wiggins, 539 U.S. at 535 (describing evidence of “severe privation and abuse,” homelessness, and “diminished mental capacities” as “the kind of troubled history we have declared relevant to assessing a defendant's moral culpability”); Porter v. McCollum, 558 U.S. 30, 41-43 (2009) (finding prejudicial counsel's failure to present evidence of childhood abuse, “heroic” military service, and a brain abnormality).
As to Petitioner's claim that the PCR court applied the incorrect legal standard, reading the decision as a whole, it is apparent the court engaged in exactly the type of reweighing of evidence required by Strickland and Wiggins. The PCR court clearly considered the new mitigation evidence and found it not particularly powerful. On the other hand, the court considered the evidence in aggravation offered at trial, noting:
Two people involved in the crime testified against Applicant, and both identified him as the mastermind and the ringleader. Asia Collier, the getaway driver, testified that she was manipulated by Applicant into participating in the crime, disposed of evidence at his request, and lied to police at his direction. Amontre Ellerbe testified that he and Applicant were the only two who actually entered the store and stuck a gun in the clerk's face, while the other two stood behind the building and “did nothing.”Id. at 29. Considering all of the above, the PCR court found Petitioner's sentence was “not the product of ineffective assistance of counsel,” but was “wholly a product of [Petitioner's own choices,” including his choice to reject the plea offer and to remove his GPS monitor and abscond rather than appear for trial and accept responsibility. Id. at 29-30. Petitioner fails to show any legal or factual error in this analysis and the undersigned recommends granting Respondent's motion for summary judgment as to Grounds Four and Five.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment, ECF No. 14, be GRANTED.
The parties are directed to the next page for their rights to file objections to this 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 p”ortions 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).