Opinion
C. A. 4:23-3458-SAL-TER
02-29-2024
ARYEE HENDERSON Petitioner, v. WARDEN SHANE JACKSON, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 19, 2023. (ECF No. 1). On December 14, 2023, Respondent filed a motion for summary judgment along with a return and memorandum. (ECF Nos. 28 and 29). The undersigned issued an order on December 15, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (ECF No. 30). Petitioner filed a motion for an extension of time to file a response. This motion was granted on January 16, 2024, giving Petitioner until February 15, 2024, to file a response.
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
However, Petitioner failed to file a response.
PROCEDURAL HISTORY
Petitioner, Aryee Henderson, (Petitioner/Henderson) is currently confined at the Lee Correctional Institution pursuant to orders of commitment from the Clerk of Court of Richland County. Petitioner was indicted during the November 2022 term of the Richland County Grand Jury Session for murder. Petitioner was represented at trial by Charles E. Johnson, Esquire. After a trial by jury, Petitioner was found guilty as indicted and sentenced to thirty years imprisonment by the Honorable Alison R. Lee.
DIRECT APPEAL/PCR
Petitioner filed a direct appeal which was denied on February 12, 2008. Petitioner filed an application for post-conviction relief which was granted on July 14, 2010, by the Honorable G. Thomas Cooper, Jr. The case was sent back for a new plea hearing or trial. Subsequently, Petitioner pleaded guilty to the lesser-included offense of voluntary manslaughter on June 20, 2016, before the Honorable Clifton Newman. Judge Newman sentenced Petitioner to twenty-five years.
Direct Appeal
On November 28, 2016, Petitioner filed a notice of appeal as to his plea. However, the appeal was dismissed by the South Carolina Court of Appeals on January 6, 2017.
PCR
Petitioner filed his PCR application as to his plea on July 21, 2016, in which he raised the following issues:
1. Ineffective Assistance of Counsel Coercion by plea counsel into pleading guilty;
a. Failure to investigate;
b. Failure to object to breach of plea agreement by Solicitor's Office;
c. Failure to object to the affidavit underlying the arrest warrant as insufficient to support a finding of probable cause;
d. Failure to object that the State unlawfully impaneled its grand jury outside the jurisdiction of the Court of General Sessions.(ECF No. 28-2 at 62- 72).
Petitioner filed amendments to his PCR application raising the following additional issues:
2. Plea counsel was ineffective for failing to advise Applicant of the right to proceed “pro se” and for failing to hold a hearing on the motion to relieve counsel; (ECF No. 28-2 at 82).
3. Ineffective Assistance of Plea Counsel
a. Counsel was ineffective for failing to ensure timely scheduling of Applicant's pro se motion to relieve counsel and represent himself at his trial;
b. Counsel was ineffective for failing to object to the presentation
of his SCDC disciplinary record to the court during sentencing; and c. Counsel failed to advise Applicant that the victims would be able to speak at his sentencing.(ECF No. 28-2 at 90) (raised by PCR counsel, Jonathan D. Waller.)
An evidentiary hearing was heard before the Honorable Jocelyn Newman on January 24, 2018. (ECF No. 28-2 at 92). Petitioner was represented by Jonathan Waller, Esquire. The PCR application was dismissed with prejudice. (ECF No. 28-2 at 207). After the order dismissing the case was issued, Petitioner filed a pro se Rule 59(e) motion and a Rule 60(b) motion for the order but they were denied. (ECF No. 28-3 at 16-20 and ECF No. 28-4 at 42).
PCR Appeal
Petitioner filed a pro se notice of appeal, a regular petition for writ of certiorari, and a second Austin v. State petition for writ of certiorari raising the following issues:
1. Whether the PCR court erred in finding plea counsel effective where counsel failed to object when the victim's family and the solicitor breached the plea agreement by recommending a specific term of years sentence when the plea agreement was made without recommendation?
2. Whether the PCR court properly granted Petitioner relief pursuant to Austin v. State, 305 S.C. 453, 246 S.E.2d 395 (1991), where Petitioner's PCR counsel failed to file a Notice of Appeal, and where the State agreed that Petitioner was entitled to belated review?(ECF Nos. 28- 6, 7, and 8).
The South Carolina Supreme Court transferred the appeal to the Court of Appeals. (ECF No. 28-11). The South Carolina Court of Appeals denied the petition and issued the remittitur on June 23, 2023. (ECF Nos. 12 and 13).
HABEAS ALLEGATIONS
Petitioner raised the following allegations in his petition:
GROUND ONE: Ineffective Assistance of Counsel-Breach of Plea Agreement
Supporting Facts: Plea counsel never informed me th[at] my victim's family was gonna testify in court, nor did he inform me that he sentencing judge would sentence m[e] harshly because of victim impact statements.
GROUND TWO: Faretta Violation
Supporting Facts: Plea counsel was ineffective for failing to advise me of the right to proceed ‘Pro Se' and for failing to advise the Court to hold a hearing on my two Motions to Relieve Counsel.(ECF No. 1-1).
Petitioner asserts that the plea offer was “open plea-voluntary manslaughter-no recommendation.” (ECF No. 1-1 at 3). Petitioner alleges that the judge sentenced him based on the recommendation of the victim's mother that he “get the max.” Id.
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. 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, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the nonmoving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
STANDARD OF REVIEW
In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the requirements set forth in 28 U.S.C. § 2254. 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.
Thus, a writ may be granted if a state court “identifies the correct principle from [the Supreme] Court's decisions but unreasonably applies that principle of law” to the facts of the case. Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)). However, “an ‘unreasonable application of federal law is different from an incorrect application of federal law,' because an incorrect application of federal law is not, in all instances, objectively unreasonable.” Id. “Thus, to grant [a] habeas petition, [the court] must conclude that the state court's adjudication of his claims was not only incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004). Further, factual findings “made by a State court shall be presumed to be correct,” and a Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
ANALYSIS
In Grounds One and Two, Petitioner raises allegations of ineffective assistance of counsel. Therefore, the law with respect to an ineffective assistance of counsel claim is set forth below.
When presented with an application for habeas relief, the first inquiry by the court is to determine whether the claim raised in the petition was “adjudicated on the merits” by the state court. 28 U.S.C. §2254(d). If the claim was properly presented to the state court and the state court adjudicated it, the deferential standard of review set forth in §2254(d) applies and federal habeas corpus relief may not be granted unless the relevant state-court adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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.” Id. § 2254(d)(1),(2); see Williams v. Taylor, 529 U.S. at 398.
The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In the case of Strickland, supra, the United States Supreme Court set forth two factors that must be considered in evaluating claims for ineffective assistance of counsel. A petitioner must first show that his counsel committed error. If an error can be shown, the court must consider whether the commission of an error resulted in prejudice to the defendant.
To meet the first requirement, “[t]he defendant must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Turner v. Bass, 753 F.2d 342, 348 (4th Cir. 1985) (quoting Strickland), reversed on other grounds, 476 U.S. 28 (1986). In meeting the second prong of the inquiry, a complaining defendant must show that he was prejudiced before being entitled to reversal. Strickland requires that:
[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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Strickland, 466 U.S. at 694.
To show prejudice in the guilty plea context, a defendant claiming ineffective assistance “must demonstrate a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Christian v. Ballard, 792 F.3d 427, 443-44 (4th Cir. 2015) (internal quotation marks omitted).
Ground One
In Ground One, Petitioner alleges ineffective assistance of counsel for allegedly not informing Petitioner that the victim's family would speak in court at his plea hearing and the judge could enter the sentence based on the statements from the family. Petitioner argues that the plea offer was for “Open Plea-Voluntary Manslaughter-No Recommendation.” However, Petitioner argues that the judge based his sentence on the victim's mother requesting that he “get the max” when counsel did not advise him that the victim's family would be allowed to speak at the plea hearing. (ECF No. 1-1 at 3).
Respondent asserts that in South Carolina, “victims have a constitutional right to be heard, so the solicitor could not agree that no one would speak regarding sentencing.” (ECF No. 28 at 15). Thus, Respondent argues that counsel was not ineffective for failing to object to the participation by the victim's mother. Therefore, Respondent asserts that the PCR court's decision to deny relief was reasonable.
See S.C. Const. Art. 1, §24; McKune v. Bush, No. CV 8:17-189-RMG, 2017 WL 4838572, at *3 (D.S.C. Oct. 24, 2017).
This issue was raised and ruled upon by the PCR court at the evidentiary hearing and raised in the PCR appeal. In the order of dismissal, the PCR court summarized the testimony as follows:
Applicant contends that immediately prior to the plea, plea counsel told him that the prosecutor would discuss his criminal records, but that it wouldn't hurt his case. However, Applicant was unaware that the prosecutor would apprise the court of his disciplinary history while at the South Carolina Department of Corrections. Applicant was also surprised when the family of the victim of the crime was able to address the court during his guilty plea. Applicant had understood that his “straight up” plea to voluntary manslaughter meant that no one connected with the prosecution would make any comment on the sentence that he should receive. Therefore, when both the victim's family and the prosecutor did so, Applicant was surprised and believes that plea counsel should have objected. He contends that if he had known that those statements would be made, that would've impacted his decision to plead guilty. ...
. . . Plea counsel denies that he told Applicant that neither the prosecutor nor the victim's family would comment on sentencing during the plea. Rather, plea counsel knows that victim's families routinely make statements during guilty pleas. He testified that the subject simply never arose in his conversations with Applicant.(ECF #28-5 at 54-56).
The PCR court concluded as follows:
. . . During the plea the victim's mother in response to the court's inquiry, requested that Applicant be given a thirtyyear sentence. The prosecutor echoed the request of the victim's mother but also apprised the court of Applicant's disciplinary history while he was in SCDC and in the Richland County Detention Center. Applicant complains
that those actions amounted to the State breaching the plea agreement, as he interpreted “straight up” to mean that no one would comment on sentencing.
Specifically, Applicant complains that the plea counsel should have objected when the prosecutor introduced evidence of his disciplinary history while at SCDC and when the court permitted both the prosecutor and the victim's family to comment on Applicant's potential sentence. Neither amounts to a breach of the “plea agreement” in Applicant's case.
Applicant is correct that, typically, a defendant must be permitted to withdraw their guilty plea when it was induced by a broken promise by the prosecutor that they wouldn't comment on sentencing, see, e.g., Santobellov. New York, 404 U.S. 257 (I 971); however, this is not a typical case. Here, Applicant has not proven that the assistant solicitor promised not to comment on sentencing. Even assuming that the promise was made, there has been no real breach of that agreement or negative effect to Applicant. Instead, the victim's mother made a sentencing recommendation. While that recommendation was repeated by the prosecutor, she also subsequently said, “Whatever sentence you feel like would be appropriate. Your Honor,” which is not a sentencing recommendation at all. Further, all of this discussion occurred before the court accepted Applicant's plea. It is clear that, subsequent to those comments, Applicant had a number of opportunities to withdraw his guilty plea. In fact, the court asked several times whether Applicant wished to plea guilty and each time, Applicant said that he did. Therefore, the PCR application is denied as to theses allegations as well.(ECF No. 28-3 at 5-6).
Upon review, the undersigned finds that the PCR Judge's determination that Petitioner entered into his guilty plea freely and voluntarily was not unreasonable. See 28 U.S.C. § 2254(d). Petitioner stated that he wanted to plead guilty and that he understood that voluntary manslaughter carries the penalty of two years to thirty years. (ECF No. 28-4 at 102). During the colloquy with the Plea Judge, Petitioner stated that he understood the proceedings, wanted to plead guilty to voluntary manslaughter understanding it is classified as a most serious offense, that no-one promised him anything, that he was satisfied with the representation of his lawyer, that he had enough time to look at whether he wanted to plead guilty to voluntary manslaughter, and he understood that he was giving up his right to a jury trial with that ability to call witnesses. (Id. at 102-104). The PCR Judge found Petitioner's PCR hearing testimony that was to the contrary not credible. (ECF No. 28-5 at 57). See Christian v. Ballard, 792 F.3d at 444, (“[Representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.” (citation omitted)). The PCR court's factual determinations regarding credibility are entitled to deference in this action. Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, 220 F.3d 306 (4th Cir. 2000).
The PCR court did not misapply the law and found that Petitioner failed to meet the first and second prongs of Strickland. Based upon the record, the PCR court's rejection of the ineffective assistance of counsel ground for relief was not “contrary to, or involved an unreasonable application of, clearly established Federal law; or did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” § 2254(d)(1), (2); Williams, supra. In this case, Petitioner fails to meet the Strickland test. Therefore, the undersigned recommends that Respondent's Motion be granted as to Ground One.
Ground Two
In Ground Two, Petitioner argues ineffective assistance of counsel under Faretta v. California, 422 U.S. 806 (1975). In Faretta, the Supreme Court held that a criminal defendant has the right to waive counsel pursuant to the Sixth Amendment. But, since it is more likely than not that a defendant would fare better with the assistance of counsel, the Supreme Court held that a defendant will only be permitted to represent himself when he “knowingly and intelligently” relinquishes his right to counsel. Id. at 835. Such a knowing waiver must be made by a “clear and unequivocal” assertion of the right to self-representation. Id. The Fourth Circuit has consistently found that a waiver of a criminal defendant's right to counsel must be clear and unequivocal; knowing, intelligent, and voluntary; and timely. See, e.g., United States v. Bernard, 708 F.3d 583, 588 (4th Cir. 2013) (“[A] person may waive the right to counsel and proceed at trial pro se only if the waiver is (1) clear and unequivocal, (2) knowing, intelligent, and voluntary, and (3) timely.”); United States v. Bush, 404 F.3d 263, 271 (4th Cir. 2005) (noting that invocation of the right to self-representation, and thus waiver of the right to counsel, must be clear and unequivocal).
Here, Petitioner specifically argues that counsel was ineffective for failing to advise him of his right to proceed pro se and for failing to hold a hearing on Petitioner's motions to be relieved of counsel. This issue was raised at PCR and Petitioner introduced the two motions to relieve counsel dated April 22, 2016, and June 7, 2016. However, this issue was not ruled on by the PCR court. Therefore, Petitioner filed a Rule 59(e), SCRCP. Respondent asserts that the issue is properly exhausted. However, Respondent argues this issue should be dismissed because he waived his right to any motions when he pleaded guilty on June 20, 2016. Additionally, Respondent contends that Petitioner had the chance to raise the fact that he wanted to relieve counsel to the plea judge, but, instead, he told the plea judge that he was satisfied with his attorney and had no further questions for the judge.
Based on the fact that Petitioner entered a guilty plea on June 20, 2016, and the fact that he told the plea judge that he was satisfied with his attorney, Petitioner waived his right to the previous motions to relieve counsel and proceed pro se. See U.S. v. Singleton, 107 F.3d 1091, 1096 (4th Cir.1997) (“[T]he right to self-representation can be waived by failure timely to assert it, or by subsequent conduct giving the appearance of uncertainty.”). Petitioner did not raise the matter during the plea hearing and there is no evidence that Petitioner requested his attorney to do so. This argument lacks merit. Therefore, it is recommended that this issue be denied.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 29) be GRANTED and any outstanding motions be deemed moot.