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Henderson v. Jackson

United States District Court, D. South Carolina, Florence Division
Oct 29, 2024
C. A. 4:23-3458-SAL-TER (D.S.C. Oct. 29, 2024)

Opinion

C. A. 4:23-3458-SAL-TER

10-29-2024

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). Pursuant to the court's order of June 28, 2024, the matter is currently before the court on Respondent's amended motion for summary judgment. (ECF Nos. 48 and 55). The undersigned issued an order on July 22, 2024, 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 by August 22, 2024. (ECF No. 56). Petitioner failed to file a response. On August 23, 2024, Petitioner filed a motion for an extension of time to file a response. This motion was granted and Petitioner was given until September 25, 2024, to file response. No response was filed.

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) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.

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 which 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 the 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).

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).

PROCEDURAL BAR

The United States Supreme Court has clearly stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts, Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings, if a state has procedural rules which bar its courts from considering claims not raised in a timely fashion. The two routes of appeal in South Carolina are described above, (i.e., direct appeal, appeal from PCR denial) and the South Carolina Supreme Court will refuse to consider claims raised in a second appeal which could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR 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. 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).

Although the federal courts have the power to consider claims despite a state procedural bar,

. . . the exercise of that power ordinarily is inappropriate unless the defendant succeeds in showing both “cause” for noncompliance with the state rule and “actual prejudice” resulting from the alleged constitutional violation.
Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. at 84 (1977)). See also Engle v. Isaac, 456 U.S. 107, 135 (1982).

Stated simply, if a federal habeas Petitioner can show (1) cause for his failure to raise the claim in the state courts, and (2) actual prejudice resulting from the failure, a procedural bar can be ignored and the federal court may consider the claim. Where a Petitioner has failed to comply with state procedural requirements and cannot make the required showing(s) of cause and prejudice, the federal courts generally decline to hear the claim. See Murray v. Carrier, 477 U.S. 478, 496 (1986).

Even if a Petitioner cannot demonstrate cause and prejudice for failure to raise a claim, he can still overcome procedural default by showing a miscarriage of justice. In order to demonstrate a miscarriage of justice, a petitioner must show he is actually innocent. See Carrier. 477 U.S. at 496 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of someone who is actually innocent”). Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.

ANALYSIS

In Grounds One and Two, Petitioner raises allegations of ineffective assistance of counsel. Respondent argues that Petitioner's issues with relation to ineffective assistance of counsel were not raised on appeal and the issues are procedurally defaulted. Respondent contends that Petitioner failed to show cause and prejudice to overcome the default.

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 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 437; see also Coleman v. Thompson, 501 U.S. 722 (1991).

With respect to Ground One, Respondent argues that although the general subject matter was raised at the PCR evidentiary hearing, the claim raised for federal habeas relief is not the same claim raised and considered by the state courts. Respondent contends that in both his PCR application and his PCR appeal, Petitioner's argument was that counsel failed to object to the commentary of victim's family and the solicitor regarding sentencing, which he believes constituted a breach of his plea agreement. However, Respondent asserts that in this habeas case, Petitioner raises the claim of ineffective assistance of counsel for failing to advise him in advance that a victim's family member could address the court during his plea hearing and that the court could sentence Petitioner based upon the victims' impact statements. Thus, Respondent contends that it is a “distinctly different claim and one not ruled upon by the PCR court nor argued on PCR appeal.” (ECF No. 54 at 12).

The issue raised in Ground One was not raised and/or addressed by the state's highest court. (ECF No. 1-1 at 3). The exhaustion requirement demands that the petitioner “do more than scatter some makeshift needles in the haystack of the state court record. The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined. Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick.” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir.1994) quoting Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.1988). Thus, Petitioner's claim is procedurally barred from federal habeas review absent a showing of cause and actual prejudice, or by showing actual innocense. Wainwright v. Sykes, 433 U.S. 72, 87, 90-91 (1977). Petitioner has not shown cause and prejudice or actual innocence. Therefore, Ground One is procedurally barred, and Respondent's motion for summary judgment should be granted.

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 for counsel to be relieved. 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. Even though Petitioner filed a Rule 59(e) motion on the issue, the issue was not raised in the petition for Writ of Certiorari. Respondent asserts that the issue is procedurally barred from federal habeas review.

This issue was not raised in the petition for Writ of Certiorari and, therefore, was not ruled on by the State's highest court. South Carolina state courts would find this type claim procedurally defaulted if Petitioner attempted to raise it now. Thus, Petitioner's claims are procedurally barred from federal habeas review absent a showing of cause and actual prejudice, or by showing actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87, 90-91 (1977). Petitioner has not shown cause or prejudice to overcome the procedural bar with regard to Ground Two.

CONCLUSION

Based on the above reasoning, it is RECOMMENDED that Respondent's amended motion for summary judgment (ECF No. 55) be GRANTED and any outstanding motions be deemed moot.

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
Post Office Box 2317
Florence, South Carolina 29503

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).


Summaries of

Henderson v. Jackson

United States District Court, D. South Carolina, Florence Division
Oct 29, 2024
C. A. 4:23-3458-SAL-TER (D.S.C. Oct. 29, 2024)
Case details for

Henderson v. Jackson

Case Details

Full title:ARYEE HENDERSON Petitioner, v. WARDEN SHANE JACKSON, Respondent.

Court:United States District Court, D. South Carolina, Florence Division

Date published: Oct 29, 2024

Citations

C. A. 4:23-3458-SAL-TER (D.S.C. Oct. 29, 2024)