Opinion
Case No. 2:18-cv-00962-DCC-MGB
11-13-2018
Kenneth Hilton, # 354034, Petitioner, v. Warden Stephon, Respondent.
REPORT AND RECOMMENDATION
Kenneth Hilton ("Petitioner"), a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court upon Respondent's Motion for Summary Judgment. (Dkt. No. 14.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant Petition for relief and submit findings and recommendations to the District Court.
The Petitioner filed this action on April 4, 2018. (Dkt. No. 1.) On June 29, 2018, Respondent filed a Motion for Summary Judgment. (Dkt. Nos. 13; 14.) Petitioner has responded to the Motion for Summary Judgment. (Dkt. No. 20.) For the reasons set forth herein, the undersigned recommends granting Respondent's Motion for Summary Judgment (Dkt. No. 14).
Petitioner labels his response to the motion for summary judgment "Objections to Report and Recommendation[] of the Magistrate Judge." (Dkt. No. 20.) However, the arguments contained therein are relevant to the pending motion for summary judgment and have therefore been considered by the undersigned.
BACKGROUND
Petitioner is currently confined within the South Carolina Department of Corrections at Broad River Correctional Institution. In March of 2012, the Cherokee County Grand Jury indicted Petitioner for kidnapping and first degree criminal sexual conduct ("CSC"). (Dkt. No. 13-1 at 148-149.) On January 23, 2013, Petitioner pled guilty on the kidnapping charge and waived Grand Jury presentment on an indictment for assault with intent to commit second degree CSC before the Honorable J. Derham Cole. (Id. at 146-147.) Petitioner was represented by Don Thompson. (Dkt. No. 18-2 at 1, 3.) Judge Cole sentenced Petitioner to consecutive terms of twenty-five years for kidnapping and twenty years for assault with intent to commit second degree CSC. (Id. at 3-33; 130; 132.) Petitioner did not appeal his convictions or sentence.
Petitioner filed an application for post-conviction relief ("PCR") on May 1, 2013. (Id. at 35-42.) Therein, Petitioner alleged ineffective assistance of counsel, and he "reserve[d] the right to amend the Application's grounds [at] a later date." (Id.) The State filed a Return and a Motion for More Definitive Statement. An evidentiary hearing was originally scheduled for April 10, 2014. However, Petitioner filed a series of motions on February 7, 2014, and April 1, 2014, in which he asked to have his appointed attorney, Leah B. Moody, Esquire, relieved. (Dkt. No. 13-2 at 3-22.)
On April 10, 2014, Judge Cole held a hearing on Petitioner's motion to relieve counsel. (Id. at 24-26.) Petitioner was present at this hearing and Ms. Moody represented him. (Id.) Petitioner again moved to relieve counsel. (Id. at 28-29.) On July 22, 2014, Judge Cole issued a written Order granting Petitioner's motion, noting that the court had instructed Petitioner that the court would not appoint a new attorney if he chose to relieve his appointed counsel and that Petitioner would be required to proceed pro se. (Id. at 35.)
On March 27, 2015, an evidentiary hearing was held before the Honorable Roger L. Couch. (Dkt. No. 13-1 at 48.) Petitioner was present and represented himself. (Id.) Petitioner testified on his own behalf at the hearing, while the State presented testimony from plea counsel, Mr. Thompson. (Id. at 49-105.) In an Order dated September 28, 2015, Judge Couch denied the application for post-conviction relief and dismissed with prejudice the petition. (Id. at 138-145.) The Order addressed Petitioner's claims that: (1) the plea judge did not have jurisdiction to accept his guilty pleas because plea counsel and the Assistant Solicitor withheld information regarding his mental status; (2) the plea judge did not have jurisdiction to accept his guilty pleas because plea counsel failed to bring the kidnapping indictment to him for his signature; and (3) his guilty plea was involuntary because plea counsel's lack of representation forced him to plead guilty. (Id.)
Petitioner timely served and filed a notice of appeal. (Dkt. No. 13-3.) Assistant Appellate Defender Robert M. Pachack represented Petitioner in the collateral appellate proceedings. On January 13, 2016, Petitioner filed a Petition for Writ of Certiorari through Mr. Pachack. (Dkt. No. 13-4.) He presented the following issue on certiorari: "Whether the PCR court erred in allowing petitioner to represent himself when it did not warn petitioner of [the] dangers and disadvantages of self-representation?" (Id. at 3.) The State filed a Return to Petition for Writ of Certiorari on July 11, 2016. (Dkt. No. 13-5.) On September 8, 2017, the South Carolina Supreme Court filed an Order granting certiorari and directing the parties to submit briefs. (Dkt. No. 13-6.)
Petitioner filed a Brief of Petitioner on October 26, 2017. (Dkt. No. 13-7.) He presented the following issue for review: "Whether the PCR court erred in allowing petitioner to represent himself when it did not warn petitioner of dangers and disadvantages of self-representation?" (Id. at 4.) The State filed a Brief of Respondent on December 27, 2017. (Dkt. No. 13-8.) On February 28, 2018, the Court filed a published Opinion affirming the denial of relief. (Dkt. No. 13-9); see Hilton v. State, 422 S.C. 204, 810 S.E.2d 852 (2018). It sent the Remittitur to the Cherokee County Clerk of Court on March 16, 2018. (Dkt. No. 13-10.)
Petitioner then filed the instant pro se habeas petition, wherein he raised the following grounds for review (verbatim):
GROUND ONE: Did the South Carolina Supreme Court err when the Court ruled that the P.C.R. Court did not err when the court allowed Petitioner to represent himself without warning.
Supporting facts: At the start of the PCR hearing the PCR court stated that the records before it indicated that Petitioner was representing himself. Petitioner stated that was correct. The court asked if that was how he wished to proceed and petitioner replied in the affirmative. The court advised petitioner that if he wanted an attorney, one would be appointed. Petitioner said he did not need an attorney. (App. p. 49, lines 16-25)[.] The record does reflect on App. 50, line 8 - p. 52[,] line 20 that the Court made an inquiry of the Petitioner about his [choice] to represent himself. However, notably absent from the inquiry was any warning as required by Faretta v. California 422 U.S. 806, 95 S.Ct. 2525, Wroten v. State 301 S.C. 293[,] 391 S.E.2d 575, Sally v. State 410 S.E.2d 921[.]
Faretta requires that a defendant "be made aware of the dangers and disadvantages of self-representation so that the record will establish he knows what he is doing and his [choice] is made with eyes open[."] 95. S.Ct. at 2541. . . . The South Carolina Supreme Court made the following statement before Affirming Petitioner's Appeal of the PCR court's decision. See Opinion No. 27772. "[T]he PCR Applicant must be made aware of right to counsel and the dangers of self-representation." Whitehead v. State 426 S.E.2d 315, Prince v. State 392 S.E.2d 462. Richardson v. State 659 S.E.2d 493. "Nevertheless, this record indicates—though does not clearly reveal—Hilton was aware of these advantages." "At the initial hearing, the PCR court clearly erred by failing to ensure Hilton understood the dangers and disadvantages of self-representation before granting the motion to relieve his appointed counsel." State law provides that counsel must be appointed or a knowing, intelligent waiver of the right to counsel must be obtained. Even with the facts and law in support of the Petitioner[,] the S.C. Supreme Court affirmed the decision of the lower court. The Petitioner has established from the record that . . . the Applicant did not receive a full, fair and adequate [hearing] in the State Court on this Issue. The Applicant was otherwise denied due Process of Law in the State Court proceeding. . . .
GROUND TWO: Do the Courts have jurisdiction to rule Petitioner's claims?
Supporting facts: . . . On September 24, 2015, the Honorable Roger L. Couch issued an order in the petitioner's PCR where he did not make a finding of fact and conclusion of law on each issue present as required by Statute. Therefore the S.C. Supreme Court did not have Jurisdiction to make a ruling on the PCR Order. The solicitor's failure to follow the State's Mandatory rules and S.C. law for criminal guilty pleas violated Petitioner's constitutional Due Process Rights to Receive a Fair Plea Hearing Process. [The] Solicitor's unprofessional errors [invalidated] [Petitioner's] guilty plea and created a Jurisdictional Structural Defect, by [withholding] "factual Evidence of Petitioner's [psychological] Mental
history from the trial judge misleading the judge to believe Petitioner's case was ready for trial.
Both [the] Assist. Solicitor and Trial Counsel [withheld] Actual Evidence, intentional or not, is irrelevant, the withholding of factual evidence violated Due Process and [invalidated] Petitioner's guilty plea. [D.] Upon being advised of Petitioner's History of Mental Illness the Court by S.C. law must order a Mental Health Examination, and a Competency hearing. Once the Court was informed of Petitioner's History and failed to order a Competency Hearing and Ruled the Petitioner was Competent without a Mental Evaluation. See Tr. Pg. 20 L.8-23 - Tr. Pg. 26 L. 17-22. The failure by the Court to act on the factual Evidence once informed deprived the Court of jurisdiction to accept Petitioner's Guilty Plea. . . . Counsel failed to bring the [kidnapping] indictment for my signature of a waiver, nor was the sentencing form signed. [The] failure by counsel obtain my signature on those documents created a structural defect and deprived the Court of Jurisdiction to accept a guilty plea.
The cumulative errors by Counsel and the Solicitor are not harmless errors. Prejudice is not required when analyzing whether the court has subject matter jurisdiction. Counsel's errors contributed to the Court's lack of Jurisdiction, State v. Lynch 545 S.E.2d 511. . . .
GROUND THREE: [Were] Petitioner's due process rights violated when [the court] after being informed of Petitioner' mental health history . . . failed to order a mental health examination to see if he was competent to enter a plea?
GROUND FOUR: Did trial counsel's ineffective [assistance] violate Petitioner's due process rights, where the PCR Court ruled he was not ineffective?
Supporting Facts: Both the Trial Counsel and Assistant Solicitor withheld evidence of Petitioner's psychological and mental illness from the Court. . . .
The Court should have stopped the proceeding and ordered the Petitioner be submitted to the Department of Mental Health for a psychiatric evaluation. . . .
Trial counsel was ineffective when he failed to object to the structural defects created by the withholding of evidence, by the Solicitor's office that deprived the Court of jurisdiction to accept Petitioner's guilty plea. . . .
Trial counsel was ineffective when he told the Court that "we really have no defense" (Tr. p. 6) (L. 15-18) and again (Tr. p. 23) (L. 21-23) "There is no defense to what happened." . . .
Counsel failed to bring me the kidnapping indictment, nor the sentencing form was not signed. . . .
Counsel was ineffective for failing to object to an offense that happened in the state of North Carolina. Everything recorded on the audiotape took place in North Carolina. The Court had no jurisdiction to accept a plea on a North Carolina offense, counsel failed to object.
Counsel was ineffective when he failed to object to the criminal sexual conduct charge when the DNA evidence did not support, in fact the evidence contradicted the victim's version of the events of that day.
Counsel was ineffective when he failed to do any investigation into the background of the victim . . .(Dkt. No. 1-1 at 5-19.)
STANDARDS
A. Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
B. Habeas Standard of Review
Since the Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding.28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 398 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 410. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
C. Ineffective Assistance of Counsel
The United States Supreme Court has said that a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, 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," so as 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); Roach v. Martin, 757 F.2d 1463, 1467 (4th Cir. 1985).
In order 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" has been defined as "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). Indeed, when § 2254(d) applies, "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 105.
FACTS
As noted above, Respondent seeks summary judgment in the instant case. (Dkt. No. 13; 14.) Before turning to the merits of the individual grounds for relief, the undersigned will briefly review the facts of this case.
This case arises from an alleged kidnapping and sexual assault on July 11, 2011. (Dkt. No. 13-1 at 18.) During the plea hearing, the State gave the following proffer in support of Petitioner's plea to the charges of kidnapping and assault with intent to commit CSC in the second degree: Petitioner picked the victim up to give her a ride. (Id.) When he took a turn in the opposite direction from where the victim had asked to go, the victim discreetly called 911 on her cell phone. (Id.) An open line with 911 continued throughout the duration of the incident. The recording captured the victim begging to be let go and telling Petitioner she did not want to be touched. (Id. at 19.) It also recorded Petitioner threatening to beat the victim and telling her that he was going to have his way with her. (Id. at 18-19.)
The victim claimed that Petitioner was hitting her in her face and throat as he was driving. (Id. at 19.) There were also tire tracks showing where Petitioner pulled his vehicle near a cemetery. (Id. at 20.) The victim alleged Petitioner made her take off her shorts and perform oral sex on him. (Id.) The 911 recording recorded Petitioner asking her what her name was, to which she responded her name was "Victim" (name redacted in records). (Id.) Petitioner then told the victim, "[Victim], put your head down there and rock it out." (Id.)
The victim then began to dry heave. (Id.). Petitioner told the victim, "I have got something else for you." (Id.) He then attempted to penetrate her with his penis, but was unable to do so. (Id.) The victim was able to get away from Petitioner when he attempted to retrieve something from his console. (Id.) She ran through the woods toward I-85 clothed only in her shirt. (Id.) She attempted to call 911 again, not realizing she was already on an open line with 911. (Id.)
Once she made contact with law enforcement, she gave them a very detailed description and a sketch was prepared. (Id. at 20-21.) The victim also insisted Petitioner had licked her left breast, so a DNA swab was taken from the area. (Id. at 21.) The DNA was run through CODUS and a hit came back matching Petitioner. (Id.) Petitioner gave a statement after his arrest, in which he claimed that he had picked the victim up to give her a ride and that she wanted to have sex with him, but he did not want to and he dropped her off. (Id.)
Following the State's factual proffer, the State played the 911 recording for the plea court. (Id. at 22.) During the hearing, Petitioner told the plea court, under oath, that he agreed with the facts as recited by the State. (Id. at 25.) However, he told the plea court that his defense was that the victim was a prostitute, and they "had a disagreement." (Id. at 29-31.)
ANALYSIS
Respondent argues that summary judgment is proper because: (1) Ground One fails to state a claim upon which relief can be granted; (2) Ground Two is procedurally defaulted and/or barred; and (3) Grounds Three and Four repeat the allegations raised in Ground Two and therefore are also procedurally defaulted and/or barred. (Dkt. No. 13.) The undersigned considers the Grounds for relief in turn.
A. Ground One
In Ground One, Petitioner alleges that the PCR court erroneously allowed him to waive his state court right to PCR counsel and appear pro se because the PCR court failed to warn him of the dangers and disadvantages of self-representation. (Dkt. No. 1-1 at 6-8.) Respondent asserts that this argument fails to state a claim on which habeas relief may be granted. The undersigned agrees.
As noted above, Petitioner raised this claim to the Supreme Court of South Carolina in his appeal of the PCR court's decision.
As an initial matter, there is no Sixth Amendment right to counsel in PCR hearings. Coleman v. Thompson, 501 U.S. 722, 752-53 (1991) ("There is no constitutional right to an attorney in state post-conviction proceedings. . . . Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings."). Thus, Petitioner was not waiving a constitutional right in choosing to proceed pro se. To the extent Petitioner is asserting he waived a right to counsel arising under South Carolina law, such a claim concerns the PCR court's alleged misapplication of a state court created right to counsel. See Hilton v. State, 422 S.C. 204, 207, 810 S.E.2d 852, 853-54 (2018) ("Rule 71.1(d) of the South Carolina Rules of Civil Procedure 'mandates the appointment of counsel for indigent PCR applicants whenever a PCR hearing is held to determine questions of law or fact.'") (quoting Whitehead v. State, 310 S.C. 532, 535, 426 S.E.2d 315, 316 (1992)). Such a claim would be outside this Court's review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."); Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983) ("[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state [law]").
Petitioner's claim is essentially one concerning an alleged violation of state PCR procedure—such a claim is not cognizable in a federal habeas corpus action. See Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) ("[C]laims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief."); see also Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008) ("A state prisoner has no federal constitutional right to post-conviction proceedings in state court. . . . Thus, even where there is some error in state post-conviction proceedings, a petitioner is not entitled to federal habeas relief because the assignment of error relating to those post-conviction proceedings represents an attack on a proceeding collateral to detention and not to the detention itself."). Accordingly, Petitioner is not entitled to habeas relief on Ground One.
B. Ground Two
In Ground Two, Petitioner raises several claims that he asserts support finding the state courts lacked "jurisdiction to rule on Petitioner's claims." (Dkt. No. 1-1 at 9-12.) Respondent contends each of these claims is procedurally barred and also fails to state a claim on which habeas relief may be granted. (Dkt. No. 13 at 17.)
Generally, "federal habeas review of a state prisoner's claims that are procedurally defaulted under independent and adequate state procedural rules is barred unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice." Lawrence, 517 F.3d at 714 (quoting McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000)).
As the Fourth Circuit stated in Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004),
[The] exhaustion requirement "reduces friction between the state and federal court systems by avoiding the unseem[liness] of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (internal quotation marks and citation omitted). Thus, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"—which includes "petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State." Id. at 845, 847, 119 S.Ct. 1728. And this opportunity must be given by fairly presenting to the state court "both the operative facts and the controlling legal principles" associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). In other words, the ground must "be presented face-up and squarely." Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).Longworth, 377 F.3d at 448.
Procedural default may be excused if the Petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). In the alternative for showing cause and prejudice, a petitioner may attempt to demonstrate a miscarriage of justice, e.g., actual innocence, Bousley v. United States, 523 U.S. 614, 623 (1998); see also Schlup v. Delo, 513 U.S. 298, 327 (1995), or abandonment by counsel. Maples v. Thomas, 132 S. Ct. 912, 924 (2012) (inquiring "whether [the petitioner] ha[d] shown that his attorneys of record abandoned him, thereby supplying the extraordinary circumstances beyond his control, necessary to lift the state procedural bar to his federal petition" (internal quotation marks and citations omitted)).
As discussed below, none of the claims raised in Ground Two were presented in Petitioner's appeal of the PCR court's decision. Those claims are therefore defaulted. See Longworth, 377 F.3d at 447-48 (concluding that certain grounds are "procedurally defaulted as a result of [the petitioner's] failure to raise them in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision"); Walker v. Warden of Broad River Corr. Inst., Case No. 1:09-cv-2672-HMH-SVH, 2010 WL 3699668, at *12 (D.S.C. Aug. 2, 2010), adopted by 2010 WL 3701331 (D.S.C. Sept.14, 2010) ("[T]o the extent that the foregoing grounds were not fairly presented to the South Carolina appellate courts, they are procedurally-barred from federal habeas review absent a showing of cause and actual prejudice, or actual innocence."); Montgomery v. Bodison, Case No. 6:09-778-HMH-WMC, 2010 WL 297667, at *4 (D.S.C. Jan 20, 2010) (although petitioner raised some claims in his petition, they were procedurally barred because the PCR court did not rule on them, and petitioner did not file a Rule 59(e) motion); Ward v. McLeod, No. 3:01-0012-25-BC, 2002 WL 31996018, at *4 (D.S.C. Apr. 18, 2002) ("When the petition for habeas relief is filed in the federal court, a petitioner may present only those issues which were presented to the South Carolina Supreme Court through direct appeal or through an appeal from the denial of the PCR application, whether or not the Supreme Court actually reached the merits of the claim.").
The undersigned discusses these claims in turn.
1. The PCR judge "did not make a finding of fact and conclusion of law on each issue present as required by Statute."
Petitioner claims the PCR judge erred in failing "to make a finding of fact and conclusion of law on each issue present as required by Statute." (Dkt. No. 1-1 at 9.) This claim concerns an alleged error in the PCR proceedings in state court. As discussed above, this claim is procedurally defaulted because it was not presented to the state courts in the state PCR proceedings. Regardless, this claim fails because "claims of error occurring in a state post- conviction proceeding cannot serve as a basis for federal habeas corpus relief." Bryant, 848 F.2d at 493; see also Lawrence, 517 F.3d at 717. Accordingly, habeas relief cannot be granted on this claim.
This claim also is without merit. In its Order of Dismissal, the PCR court wrote, "As to any and all allegations that were raised in the application or at the hearing in this matter and not specifically addressed in this Order, this Court finds the Applicant failed to present any testimony, argument, or evidence at the hearing regarding such allegations. Accordingly, this Court finds the Applicant has abandoned any such allegations." (Dkt. No. 13-1 at 144.)
2. The Assistant Solicitor and plea counsel withheld evidence of Petitioner's prior mental health history from the plea court.
Petitioner next claims that the Assistant Solicitor and his plea counsel violated his right to due process by failing to disclose to the plea court that Petitioner had a history of mental health problems. (Dkt. No. 1-1 at 9-10.) According to Petitioner, this alleged violation invalidated his guilty plea. (Id. at 10.) While this claim was expressly raised to, and ruled upon by, the PCR court, Petitioner did not appeal this specific ruling. (Dkt. No. 13-1 at 141-142.) Therefore, as discussed above, this claim is procedurally barred. See Longworth, 377 F.3d at 447-48 (concluding that certain grounds are "procedurally defaulted as a result of [the petitioner's] failure to raise them in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision"); Ward, 2002 WL 31996018, at *4 ("When the petition for habeas relief is filed in the federal court, a petitioner may present only those issues which were presented to the South Carolina Supreme Court through direct appeal or through an appeal from the denial of the PCR application, whether or not the Supreme Court actually reached the merits of the claim.").
Petitioner, however, argues that the "procedural default is the result of ineffective assistance of counsel." (Dkt. No. 20 at 2.) To the extent Petitioner attempts to excuse his default under Martinez, such reliance is misplaced. Martinez provides a "narrow exception" to a "procedural default of a claim of ineffective assistance at trial" when there is "[i]nadequate assistance of counsel at initial-review collateral proceedings." Martinez, 566 U.S. at 9; see Brailsford v. Eagleton, Case No. 6:15-cv-1800-GRA, 2015 WL 6855709, at *2 (D.S.C. Nov. 6, 2015) ("The U.S. Supreme Court's holding in Martinez is a 'narrow exception' grounded in a need to protect state prisoners from scenarios where no federal or state court is able to hear the prisoner's underlying habeas claim because of error by counsel at a state initial-collateral review proceeding."); Reilly v. Cartledge, Case No. 0:12-cv-3503-SB, 2014 WL 4656511, at *8 (D.S.C. Sept. 17, 2014) ("Martinez is a limited exception that applies only to the procedural default of a claim of ineffective assistance of trial counsel.").
Here, the procedural default did not occur at initial-review collateral proceedings, but rather, when Petitioner's collateral appellate counsel failed to appeal the adverse ruling on these claims. Thus, Martinez does not apply. See, e.g., Arnold v. Dormine, 675 F.3d 1082, 1086-1087 (8th Cir. 2012) (failure of collateral appellate counsel to preserve claims on appeal from post-conviction relief does not constitute "cause" to excuse a procedural default); Williams v. Riley, Case No. 6:15-cv-3236-TMC-KFM, 2016 WL 4408834, at *8 (D.S.C. July 14, 2016), adopted by, 2016 WL 4386080 (D.S.C. Aug. 16, 2016), appeal dismissed, 676 F. App'x 200 (4th Cir. 2017) ("To the extent the petitioner raises a claim that ineffective assistance of PCR appellate counsel may allow for excusal of the default of Ground Two because it was not raised on appeal from the denial of PCR, he is mistaken. The Court in Martinez specifically left in place the prohibition in Coleman v. Thompson that allegations of ineffective assistance of collateral appeal counsel could not provide excuse to avoid a default.") Bradley v. Stevenson, Case No. 9:15-cv-2741-TLW-BM, 2016 WL 5030397, at *14 (D.S.C. Apr. 12, 2016), adopted by, 2016 WL 4993409 (D.S.C. Sept. 19, 2016), appeal dismissed, 691 F. App'x 757 (4th Cir. 2017) ("ineffective assistance of PCR appellate counsel is not cause for a default" under Martinez) (emphasis in original).
In addition, as to Petitioner's allegations regarding the Assistant Solicitor, such a claim does not allege ineffective assistance of counsel. Martinez therefore also fails to apply for this reason.
Further, Petitioner cannot show prejudice from the default of these claims. As an initial matter, the record belies Petitioner's claims here. The only indication of Petitioner's mental history is that at the time of Petitioner's guilty plea, trial counsel informed the plea court that Petitioner claimed "he was raped by an older brother . . . from age six to twelve" and that he told counsel "there [are] times when his mind goes back to that twelve years old." (Dkt. No. 13-1 at 28.) Petitioner told his counsel "that on this day he just didn't handle things the way they should have been handled." (Id.) Before allowing Petitioner to appear pro se at the PCR hearing, the PCR judge specifically asked Petitioner if he suffered "from any mental, physical, or nervous conditions today that would affect your ability to reason or to make good decisions?" (Id. at 53.) Petitioner responded that he did not. (Id.) There is no evidence in the record that Petitioner has been treated for mental health issues, despite his testimony to the PCR court that the state and plea counsel "withheld factual evidence of the Applicant's psychological, mental illness history from the Trial Judge." (Id. at 67.)
Under South Carolina law, a defendant is presumed competent. See State v. Weik, 356 S.C. 76, 81, 587 S.E.2d 683, 685 (2002) (the defendant bears the burden of proving his lack of competence by a preponderance of the evidence) (citing Dusky v. United States, 362 U.S. 402 (1960)). Further, "neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial." Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000).
Also, as mentioned above, the PCR court rejected the claims Petitioner now presents here. In consideration of these claims, the PCR court made the following ruling:
A.
. . . This Court also finds the Applicant failed to meet his burden of proving either that any party "withheld" his alleged "mental status" from the plea judge or that doing such would have left the judge without jurisdiction to preside over the case. These issues are patently without merit. This Court concludes the Applicant failed to meet his burden of proving plea counsel's actions resulted in the plea judge not having jurisdiction in his case. See Butler v. State, 286 S.C. 441, 442, 334 S.E.2d
813, 814 (1985) (in a PCR proceeding, the applicant bears the burden of proving the allegations in their application).(Dkt. No. 13-1 at 140-142.)
B.
The Applicant argued he had mental health issues and should have been evaluated. The Applicant argued neither plea counsel nor the assistant solicitor informed the plea judge of his mental illness.
Plea counsel testified an initial interview of his clients' backgrounds is performed. Plea counsel testified the Applicant's form indicated there was no history of mental illness. Plea counsel testified he was not aware of the Applicant having a background of mental health issues. Plea counsel testified there were no problems with the Applicant's competency.
Plea counsel testified the Applicant did not inform him of any history of mental illness and that he did not perceive issues related to competency. This Court finds plea counsel's testimony is credible. This Court finds the Applicant has failed to meet his burden of proving plea counsel was deficient in not investigating his alleged mental health background. See Lee v. State, 396 S.C. 314, 721 S.E.2d 442 (Ct. App. 2011) (holding plea counsel cannot be found deficient if she has no indication of the defendant's mental health history). Further, the Applicant "bears the burden of proof and is required to show by a preponderance of the evidence he was incompetent at the time of his plea." Jeter v. State, 308 S.C. 230, 232, 417 S.E.2d 594, 596 (1992). To sustain a claim that plea counsel was ineffective for failing to request a competency hearing, the petitioner must show [a] reasonable probability that he would have been found incompetent. Id. at 233, 417 S.E.2d at 596. The Applicant, however, failed to produce either an expert witness to testify about his alleged mental health issues or any documentation on this matter that would have been relevant to the issue. As such, the Applicant failed to meet his burden of proof. See Dempsey v. State, 363 S.C. 365, 370, 610 S.E.2d 812, 815 (2005) (finding that, as the applicant failed to have an expert testify at the evidentiary hearing, "any finding of prejudice is merely speculative"); see also Palacio v. State, 333 S.C. 506, 513, 511 S.E.2d 62, 66 (1999) (holding that, since the contents of challenged documents were not presented at the PCR hearing, the Applicant could not demonstrate how the failure of counsel to obtain these documents prejudiced the defense).
The PCR court's rejection of these claims is not contrary to, or an unreasonable application of, clearly established federal law, nor did it result in an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). The PCR court found plea counsel's testimony that he was not aware of Petitioner having a background of mental health issues to be credible, as well as plea counsel's testimony that there were no problems with Petitioner's competency. (Dkt. No. 13-1 at 141.) Such a factual finding is a "presumed to be correct," and Petitioner has the "burden of rebutting the presumption . . . by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003). Petitioner has failed to meet this burden, and habeas relief cannot be granted on these claims.
3. The plea court failed to order a competency evaluation after being apprised of Petitioner's history of mental health issues.
Petitioner next claims that the plea court was deprived of jurisdiction in failing to order a competency evaluation after being apprised of Petitioner's history of mental health issues. (Dkt. No. 1-1 at 10.) While Petitioner raised this claim to the PCR court, it was not addressed in the PCR court's Order of Dismissal. (Dkt. No. 13-1 at 115-120, 138-145.) Petitioner did not seek a ruling on this claim by filing a Rule 59(e), SCRCP, motion, asking the PCR court to make specific findings of fact and conclusions of law on this claim. Because Petitioner failed to file such a motion, this claim is procedurally defaulted. See Montgomery v. Bodison, Case No. 6:09-cv-778-HMH-WMC, 2010 WL 297667, at *4 (D.S.C. Jan 20, 2010) (although petitioner raised some claims in his petition, they were procedurally barred because the PCR court did not rule on them, and petitioner did not file a Rule 59(e) motion); see also Muhammad v. Cartledge, Case No. 2:14-cv-3156 DCN, 2015 WL 3789617, at *7 (D.S.C. June 17, 2015) ("[W]hile Petitioner's counsel raised the issue in a footnote in his Johnson Petition for Writ of Certiorari, . . . , it does not appear that the lower court ever ruled upon any such standalone claim. The claim is therefore defaulted."); Archie v. Cartledge, Case No. 2:13-cv-3052-RMG, 2015 WL 1169917, at *14 (D.S.C. Mar. 13, 2015) ("Although Petitioner raised the issue in his petition, no evidence related to Ground Two was presented to the PCR court. Accordingly, the PCR court did not specifically address this claim. Ground Two is therefore procedurally barred."); Burgess v. State, 402 S.C. 92, 95, 738 S.E.2d 264, 265-66 (Ct. App. 2013) ("Because the State failed to file a Rule 59(e) motion asking the PCR court to make specific findings of fact and conclusions of law regarding the prejudice prong, we find the issue on appeal is not preserved for our review.").
Petitioner appeared pro se before the PCR court, and he offers no basis to find that "some objective factor external to the defense" impeded his efforts to comply with state procedure. Murray v. Carrier, 477 U.S. 478, 488 (1986) ("[W]e think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule."). Thus, Petitioner cannot show cause for this default.
Further, Petitioner cannot show prejudice from the default of this claim because, as discussed above, it does not warrant habeas relief. There is nothing in the record to evidence "Petitioner's history of mental illness." (Dkt. No. 1-1 at 10.) The record demonstrates that neither Petitioner nor his plea counsel brought any mental health issues to the plea court's attention. In short, habeas relief cannot be granted on this claim.
4. Plea counsel failed to have Petitioner sign either the kidnapping indictment or the sentencing sheet.
Petitioner next claims that plea counsel was ineffective for failing "to bring the [kidnapping] indictment for my signature of a waiver, nor was the sentencing form signed. [The] failure by counsel to obtain my signature on those documents created a structural defect and deprived the Court of Jurisdiction to accept a guilty plea." (Dkt. No. 1-1 at 11.) This claim was expressly raised to, and rejected by, the PCR court, and Petitioner did not appeal this specific ruling. (Dkt. No. 13-1 at 140-141.) Therefore, as discussed above, this claim is procedurally barred. See Longworth, 377 F.3d at 447-48; Ward, 2002 WL 31996018, at *4.
Petitioner argues that the "procedural default is the result of ineffective assistance of counsel." (Dkt. No. 20 at 2.) However, as discussed above, such an excuse fails under Martinez because the procedural default did not occur at initial-review collateral proceedings, but rather, when Petitioner's collateral appellate counsel failed to appeal the adverse ruling on these claims. Thus, Martinez does not apply. See, e.g., Martinez, 566 U.S. at 9; Arnold, 675 F.3d at 1086-1087; Williams, 2016 WL 4408834, at *8; Bradley, 2016 WL 5030397, at *14.
Further, Petitioner cannot show prejudice from the default of this claim. As mentioned above, the PCR court rejected this claim, stating:
(Dkt. No. 13-1 at 140-141.)
A.
. . . The Applicant argued there were jurisdictional and structural defects in this case. The Applicant argued plea counsel failed to bring the kidnapping indictment to him for his signature.
Plea counsel testified that the Applicant was originally indicted for kidnapping and second-degree CSC, but that the Applicant waived the presentment on the charge of assault with intent to commit second-degree CSC.
This Court finds the Applicant has failed to substantiate his allegation that the plea judge lacked jurisdiction in this case. The true test of the sufficiency of an indictment is not whether it could be made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. State v. Gentry, 363 S.C. 93, 103, 610 S.E.2d 494, 500 (2005). Indictments are not evidentiary or jurisdictional documents—they are merely notice documents. Id. at 102, 610 S.E.2d at 500. The kidnapping indictment in this case was true-billed and clearly sufficient to put the Applicant on notice of the charge he was facing. See State v. Tumbleston, 376 S.C. 90, 95-96, 654 S.E.2d 849, 852 (Ct. App. 2007). Further, there is a waiver of presentment for the assault with intent to commit second-degree CSC indictment that was also sufficient to put the Applicant on notice of the charge he was facing. The Applicant's claim that the lack of his signature on the kidnapping indictment somehow voided that indictment is without merit, as there is no such requirement. . . . This Court concludes the Applicant failed to meet his burden of proving plea counsel's actions resulted in the plea judge not having jurisdiction in his case. See Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985) (in a PCR proceeding, the applicant bears the burden of proving the allegations in their application).
The PCR court's rejection of this claim is not contrary to, or an unreasonable application of, clearly established federal law, nor did it result in an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). The record shows that Petitioner indicated to the plea court that he understood the charges in both indictments. (Dkt. No. 13-1 at 8-11.) In its Order of Dismissal, the PCR court found that the kidnapping indictment is a notice document, and that Petitioner had adequate notice of the charges he was facing. (Dkt. No. 13-1 at 141) (citing Gentry, 363 S.C. at 102, 610 S.E.2d at 500) ("The indictment is a notice document."). Such a factual finding is "presumed to be correct," and Petitioner has the "burden of rebutting the presumption . . . by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003). Petitioner has failed to meet this burden, and habeas relief cannot be granted on this claim.
5. Cumulative errors.
Finally, Petitioner argues that "the cumulative errors by counsel and the solicitor are not harmless errors." (Dkt. No. 1-1 at 11.) Petitioner raised this argument during the PCR proceeding, (Dkt. No. 13-1 at 84), but it was not addressed in the Order of Dismissal. Petitioner did not seek a ruling on this claim by filing a Rule 59(e), SCRCP, motion, asking the PCR court to make specific findings of fact and conclusions of law on this claim. Because Petitioner failed to file such a motion, this claim is procedurally defaulted. See Montgomery, 2010 WL 297667, at *4; see also Muhammad, 2015 WL 3789617, at *7; Archie, 2015 WL 1169917, at *14; Burgess, 402 S.C. at 95, 738 S.E.2d at 265-66.
Petitioner appeared pro se before the PCR court, and he offers no basis to find that "some objective factor external to the defense" impeded his efforts to comply with state procedure. Murray, 477 U.S. at 488. Thus, Petitioner cannot show cause for this default.
Further, Petitioner cannot show prejudice from the default of this claim because the allegations do not provide a basis for habeas relief. The Fourth Circuit Court of Appeals has held that cumulative error by trial counsel cannot provide a basis for habeas relief. See Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998) (rejecting petitioner's argument "that the cumulative effect of his trial counsel's individual actions deprived him of a fair trial"); see also Mueller v. Angelone, 181 F.3d 557, 586 (4th Cir. 1999) ("Petitioner also urges us to consider the cumulative effect of his ineffective assistance of counsel claims rather than whether each claim, considered alone, establishes a constitutional violation. This argument is squarely foreclosed by our recent decision in Fisher . . . "); Howard v. United States, No. CR 7:07-0294-HFF-7, 2011 WL 13172168, at *9 (D.S.C. Mar. 10, 2011) ("To the extent that Movant maintains that his motion should be granted based on trial counsel's alleged cumulative error, such relief is foreclosed by Fisher . . . . 'An error of constitutional magnitude occurs in the Sixth Amendment context only if the [movant] demonstrates (1) deficient performance and (2) prejudice.' . . . '[L]egitimate cumulative-error analysis evaluates only the effect of matters actually determined to be constitutional error, not the cumulative effect of all of counsel's actions deemed deficient.'").
Here, the undersigned will also address Petitioner's overall argument under Ground Two that the Courts lacked "jurisdiction to rule on Petitioner's claims." (Dkt. No. 1-1 at 9.) As noted above, the PCR court rejected Petitioner's claim that "there were jurisdictional and structural defects in his case." (Dkt. No. 13-1 at 140.) Petitioner failed to appeal this ruling, and he has provided no basis to rebut the PCR court's factual findings as to why Petitioner "failed to meet his burden of proving plea counsel's actions resulted in the plea judge not having jurisdiction in his case." (Id. at 141.) As discussed above, none of the individual claims alleged under Ground Two provide a basis to find that the plea court lacked jurisdiction to accept Petitioner's guilty plea. Petitioner pled guilty before the Honorable J. Derham Cole with the Cherokee County Circuit Court. (Dkt. No. 13-1 at 3.) "Circuit courts obviously have subject matter jurisdiction to try criminal matters." Gentry, 363 S.C. at 101, 610 S.E.2d at 499. Further, none of the alleged claims amount to a "structural defect affecting the framework within which the trial proceeds." Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
In sum, Petitioner is not entitled to habeas relief on Ground Two.
C. Ground Three
In Ground Three, Petitioner repeats the allegations he raised in Ground Two. Specifically, Ground Three alleges that the plea court erred in failing to order a competency evaluation after being apprised of Petitioner's history of mental health issues. (Dkt. No. 1-1 at 13-15.) For the reasons stated in Part B, these allegations do not provide a basis for habeas relief. See infra Part B. Petitioner is therefore not entitled to habeas relief on Ground Three.
D. Ground Four
In Ground Four, Petitioner again repeats many of the same allegations he raised in Ground Two. Ground Four alleges that plea counsel was ineffective for many reasons including: (1) withholding Petitioner's history of mental health problems; (2) failing to file a motion to conduct a mental health examination for Petitioner; (3) failing to object "to the structural defects created by the withholding of [the mental health] evidence"; (4) telling the court that "we really have no defense" and "there is no defense to what happened"; (5) failing to bring Petitioner the kidnapping indictment and to obtain a signed sentencing form; (6) failing to object to the plea court's jurisdiction to hear a case about events that occurred solely in North Carolina; (7) failing "to object to the criminal sexual conduct charge when the DNA evidence did not support" it; and (8) failing to do any investigation into the background of the victim. (Dkt. No. 1-1 at 16-19.)
Respondent has not briefed Ground Four, as he asserts this section merely "repeats the claims raised in Ground Two." (Dkt. No. 13 at 41.)
Plaintiff's allegations relating to his mental health history have already been addressed, as well as his allegations relating to the kidnapping indictment and sentencing form. See infra Part B. For the reasons discussed above, these allegations are procedurally defaulted and do not warrant federal habeas relief. Id. The undersigned addresses the remaining claims in turn.
As an initial matter, these remaining claims are also procedurally defaulted. To the extent these claims were presented during the PCR proceedings (Dkt No. 13-1 at 89-95), the PCR court found that Petitioner failed to meet his burden of proving plea counsel failed to render reasonably effective assistance (Id. at 143). Petitioner did not appeal this finding and did not file a Rule 59(e) motion for a more specific ruling on this issue.
Further, Petitioner cannot show prejudice from the default of these claims because the allegations are without merit, as discussed below.
1. Admitting to "no defense"
Petitioner claims that his plea counsel erred in admitting there was no defense to the charges. The testimony provided during the plea hearing indicates that Petitioner admitted to having no defense to these charges. During the plea hearing, the judge asked Petitioner if he knew of any defense to the charges. (Dkt. No. 13-1 at 8.) When Petitioner expressed confusion, his plea counsel stated: "I was explaining to him, judge, that we have discussed this. We have discussed the possibility of some mitigation, but we really have no defense, that I see." (Id.) The judge then explained to Petitioner the definition of defense and again asked him if he knew of any defense. (Id.) When Petitioner responded that "I picked this young lady up as a prostitute," the judge proceeded to go through the indictments for both kidnapping and intent to commit CSC in the second degree. (Id. at 9-10.) The judge expressly asked Petitioner if he knew of any reason why he should not be found guilty of these charges, and Petitioner responded "No, sir." (Id.)
After Petitioner pled guilty to the charges, and the judge accepted that guilty plea, plea counsel spoke to the court, stating:
Judge, this quite frankly—I have been practicing thirty-three years and this is one of the more difficult cases I have ever dealt with.
I have met with Mr. Hilton. I have talked with him. I have—I'm going to say some things, not in defense, because there is no defense to what happened, but Mr. Hilton feels there is some things in mitigation that I need to say on his behalf, and I realize those things are going to come across as hurtful to the victim in this case, and I apologize for that, but I represent Mr. Hilton and I need to say them.(Id. at 25-26.) Plea counsel proceeded to describe Petitioner's version of his relationship with the victim. (Id. at 26-29.)
During the PCR proceedings, the State questioned plea counsel about Petitioner's decision to plead guilty, asking "[W]hen you talked about not having a defense, what was it that you meant?" (Id. at 90.) Plea counsel responded,
Well, usually, in a case, you have one side saying this happened and your side saying this happened and you got to figure out what went on. In this case, we didn't have that.(Id. at 90-91.)
In this case, when this victim—got in the vehicle with Mr. Hilton, and realized that something was going on, she dialed 9-1-1 on her cell phone and the entire incident is recorded in a recording for about 45 minutes of what happened. So we didn't have to rely on she said/he said. We had the actual recording of what went on, and when you listened to it, there is no defense to these charges.
During these proceedings, Petitioner also questioned plea counsel about his failure to assert a defense to the charges.
Q. Would you agree that the substance of representation was, in fact, nonexistence, no motions, no objection, no legal defense? Yes or no.(Id. at 94-95.) Given the existence of the 911 call from the victim recording the events leading to Petitioner's charges, and Petitioner's admission during the plea hearing that he did not know of any reason not to plead guilty to the charges, Petitioner cannot prove deficient performance by plea counsel and actual prejudice from this alleged error. Strickland, 466 U.S. at 687-96. He has not met his burden under Strickland that he was denied effective assistance of counsel regarding his claim that plea counsel was ineffective for admitting to having no defense.
A. Well, no, because there was no grounds for any motions. There was no grounds for any objections, and when you listened to the tape, there was no defense.
Q. Sir?
A. It's not my job to make up a defense for you. It's my job to take the facts and see if there is a defense.
2. Failing to object to plea court's jurisdiction
Petitioner claims plea counsel erred in failing to object to the plea court's jurisdiction to hear a case about events that occurred solely in North Carolina. This assertion is incorrect, as the events at issue occurred mainly in Cherokee County. The State's proffer given during the plea hearing established that Petitioner picked up the victim in Gastonia and "drove her to Quarry Road in Blacksburg, which is located in Cherokee County, to the cemetery." (Dkt. No. 13-1 at 18-19.) Once at the cemetery, Petitioner proceeded to sexually assault the victim. (Id.) Thus, the Cherokee County Circuit Court appropriately exercised jurisdiction over this matter. Given these facts, Petitioner cannot prove deficient performance by plea counsel and actual prejudice from this alleged error. Strickland, 466 U.S. at 687-96. He has not met his burden under Strickland that he was denied effective assistance of counsel regarding his claim that plea counsel was ineffective for failing to object to the plea court's jurisdiction.
3. Failing to object to CSC charge
Petitioner claims plea counsel erred in failing "to object to the criminal sexual conduct charge when the DNA evidence did not support" it. (Dkt. No. 1-1 at 19.) As discussed above, the State's proffer of the facts established that Petitioner's DNA matched the swab taken from the victim's bra. (Dkt. No. 13-1 at 21.) Petitioner was in the CODUS system because of prior sexual offense convictions. (Id.) During the PCR proceedings, Petitioner admitted that SLED took his DNA because he is registered as a sex offender in North Carolina. (Id. at 93.) He asserted, however, that there was "no sexual DNA found on [him]" following the incident with the victim. (Id.)
Given these facts, Petitioner cannot prove deficient performance by plea counsel and actual prejudice from this alleged error. Strickland, 466 U.S. at 687-96. Petitioner's DNA was found on the victim. Petitioner has therefore not met his burden under Strickland that he was denied effective assistance of counsel regarding his claim that plea counsel was ineffective for failing to object to the CSC charge based on lack of DNA evidence.
4. Failing to investigate the victim
Finally, Petitioner claims plea counsel erred in failing to investigate the background of the victim. (Dkt. No. 1-1 at 19.) During the PCR proceedings, the State questioned plea counsel about his conversations with Petitioner in preparing for trial or the plea. Plea counsel stated that
He, he told me that the victim was a prostitute and I think I relayed that to the judge during the guilty plea. They, they were some questions in there as to how she knew him and things like that that just, if she was just a stranger he picked up off the street, they just didn't go right. But when you start factoring in the fact that she was a prostitute, he'd had sex with her in the past, that seemed to fit her story. . . . They're those holes in her stories.(Dkt. No. 13-1 at 89.) He explained that during his conversations with Petitioner, "We spent a lot of talking about how he met [the victim], how she came to be in his vehicle, and we spent—he had an issue of whether there was actual sexual intercourse, and, you know, we spent a lot of time talking about that." (Id. at 91.)
Given the existence of the 911 call from the victim recording the events leading to Petitioner's charges, and plea counsel's account of his conversations with Petitioner, there is no basis to find deficient performance by plea counsel and actual prejudice from this alleged error. Strickland, 466 U.S. at 687-96. Petitioner has therefore not met his burden under Strickland that he was denied effective assistance of counsel regarding his claim that plea counsel was ineffective for failing to investigate the background of the victim.
For the foregoing reasons, Petitioner is not entitled to habeas relief on Ground Four.
CONCLUSION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Motion for Summary Judgment (Dkt. No. 14) be GRANTED.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE November 13, 2018
Charleston, South Carolina
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 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).