Opinion
8:23-cv-01534-SAL-JDA
03-11-2024
Brandon McFadden, Petitioner, v. Warden of Evans Correctional Institution, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge.
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 24.] Petitioner is a state prisoner seeking relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Proceeding pro se, Petitioner commenced this action on March 8, 2023, by filing a five-page, hand-written document. [Doc. 1.] By Order dated April 17, 2023, the undersigned directed Petitioner to bring this case into proper form by filing the appropriate information and paperwork, including a properly completed complaint on the standard court form. [Doc. 5.] Thereafter, Plaintiff filed a standard court form for a “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody,” as well as several attachments. [Docs. 1-3; 1-5; 1-6.] The Court construes these documents together as the Petition filed in this matter.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, construing the filing date in the light most favorable to Petitioner, the Court deems this action as having been filed on March 8, 2023. [Doc. 1 at 5 (Petition, signed March 8, 2023).]
Respondent filed a return and memorandum and motion for summary judgment on August 30, 2023. [Docs. 23; 24.] The same day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 25.] Petitioner's response in opposition was entered on the docket on October 23, 2023. [Doc. 30.] The motion is now ripe for review.
BACKGROUND
Petitioner is confined in the South Carolina Department of Corrections (“SCDC”) pursuant to orders of commitment of the Sumter County Clerk of Court. [Doc. 1-3 at 1.] In December 2016, a Sumter County grand jury indicted him for armed robbery, possession of a weapon during the commission of a violent crime, unlawful carrying of a pistol, and possession of a firearm by a person convicted of a violent felony. [App. 89-91.]
The Appendix can be found at Docket Entry Number 23-1.
Petitioner, represented by Timothy Murphy and then Katarzyna Timmons, engaged in plea negotiations with the State, after which Petitioner pled guilty on November 12, 2019, before the Honorable R. Farrell Cothran, Jr., to armed robbery. [App. 1-11.] He was sentenced to 20 years' imprisonment. [App. 10-11.] The State dismissed the three other indictments the same day. See State v. McFadden, Nos. 2016A4320100669, 2016A4320100680, 2016A4320100681, available at the Sumter County Public Index, https://publicindex.sccourts.org/Sumter/PublicIndex/PISearch.aspx (search by case numbers 2016A4320100669, 2016A4320100680, and 2016A4320100681) (last visited Jan. 11, 2024).
Direct Appeal
Petitioner timely appealed, but the Court of Appeals dismissed the appeal for Petitioner's failure to comply with Rule 203(d)(1)(B)(iv), SCACR. State v. McFadden, Case No. 2019-001938 (S.C. Ct. App. filed Apr. 15, 2020). No grounds were raised and Petitioner did not appeal further.
Post-Conviction Relief Proceedings
On July 13, 2020, Petitioner, proceeding pro se, filed an application for postconviction relief (“PCR”). [App. 13-19.] He made the following allegations of error:
(a) Violation of [Sixth Amendment] right to effective assistance of counsel; and
(b) Violation of [Fourteenth Amendment] right to due process [and] equal protection.[App. 15.] The State filed a return and motion for a more definite statement dated January 15, 2021. [App. 20-25.]
Timothy Griffith, appointed as Petitioner's PCR counsel, then filed an amended application adding the following facts as supporting Petitioner's claims:
[Petitioner] was told by his attorney that the recommendation of the Solicitor was 10 years. He then saw in writing an offer from the Solicitor for the 10 year recommendation;
[Petitioner's] attorney DID NOT tell him that the Judge could sentence without consideration of the recommendation of the Solicitor;
[Petitioner] was coerced into making the Plea. He was told he had to Plea or a bench warrant would be issued for him
(according to Mr. McFadden). He was under pressure and was told he would get the 10 years.
[Petitioner] did not have discovery until the day before the Plea and his attorney DID NOT go over the discovery with him.[Docs. 23-6; 23-7.]
An evidentiary hearing was held on March 10, 2021, with Timothy Griffin representing Petitioner. [App. 28-73.] The PCR court received testimony from Petitioner's former counsel Timothy Murphy, and plea counsel Katarzyna Timmons. [App. 28-73.]
By order dated April 27, 2021, the PCR court issued an order denying and dismissing Petitioner's application with prejudice. [App. 74-88.] Petitioner timely appealed. [Docs. 23-2; 23-7.]
Adam Sinclair Ruffin of the South Carolina Commission on Indigent Defense filed on Petitioner's behalf a Johnson petition for writ of certiorari in the Supreme Court of South Carolina, dated September 24, 2021. [Doc. 23-8 at 1-11.] The petition presented the following issue:
A Johnson petition is the PCR appeal analogue to an Anders brief which effectively concedes the appeal lacks a meritorious claim. See Johnson v. State, 364 S.E.2d 201 (S.C. 1988).
Did the post-conviction relief court err in finding that Petitioner's guilty plea was voluntary when plea counsel did not give Petitioner a copy of his discovery until the day of the plea and told Petitioner that if he did not plead guilty that day, the plea offer would be revoked and he would be subjected to a jury trial where he would face a mandatory life without parole sentence and Petitioner only pled guilty because he had not had adequate time to review his discovery and prepare for trial?[Id. at 1.] At the same time Ruffin filed the Johnson petition, Ruffin also submitted a petition to be relieved as counsel. [Id. at 12-14.] The appeal was transferred to the South Carolina Appeals, which denied the petition and granted Ruffin's request to withdraw on October 4, 2022. [Docs. 23-9; 23-10.] Remittitur was issued on October 20, 2022, and filed in the Sumter County Clerk's Office on October 24, 2022. [Doc. 23-11.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on March 8, 2023. [Doc. 1.]
Petitioner raises the following grounds in his Petition pursuant to 28 U.S.C. § 2254 :
The Court has liberally construed Petitioner's allegations and reorganized them to avoid repetition.
GROUND ONE: Prosecutorial Misconduct Amounting to a Violation of Petitioner's Right to Due Process
Supporting facts: The agreement the parties negotiated was that Petitioner would plead guilty to all four charges in exchange for receiving a 20-year sentence, but on the day of the plea hearing, prior to the hearing, Petitioner reviewed the proposed sentencing sheet and discovered that what the negotiated plea that would be presented to the plea judge would involve Petitioner pleading guilty to the armed-robbery charge only and the other three charges would be dismissed. Petitioner informed counsel that if he was going to be pleading guilty only to armed robbery, he believed he should receive a lower sentence. When plea counsel raised the issue with the prosecutor, the prosecutor stated that if Petitioner did not accept the plea to armed robbery, he would withdraw the plea offer and Petitioner would be placed on the trial docket for the following month. Petitioner proceeded to plead guilty because he feared having to go to trial so soon.
GROUND TWO: Ineffective Assistance of Counsel
Supporting facts: After the prosecutor stated his intention to dismiss the three weapons charges as part of the negotiated plea, plea counsel did not negotiate a new deal despite the fact that Petitioner was pleading only to the single charge rather than all four charges, nor did she alert the plea court to the prosecutor's improper actions that deviated from the agreement that the parties had negotiated; rather, counsel advised Petitioner to accept the 20-year negotiated plea to the charge of armed robbery and not raise the issues to the plea judge about what the agreement the parties had originally negotiated even though the plea was no longer supportable in the absence of the weapons charges.
GROUND THREE: Counsel Failed to Conduct an Adequate Investigation Regarding the Evidence
Supporting facts: Counsel told client he wanted him to plead because of his confession. Counsel could have moved to suppress the confession, but he didn't. There was no audio, video, or handwritten statement supporting the confession. “I did not fit the description because I didn't have on the same clothing as the suspect.”[Docs. 1; 1-3 at 5, 7, 8, 10.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Habeas Corpus
Generally
Because Petitioner filed the 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 (1997); Breard v. Pruett, 134 F.3d 615 (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 in the State court proceeding.28 U.S.C. § 2254(d). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “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,” and “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101-02 (2011). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before the petitioner has appropriately exhausted available state court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Exhaustion
Section 2254 contains the requirement of exhausting state court remedies and provides as follows:
(b) (1) 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 unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 1727-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3), 243. 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. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:
. . . [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, 468 U.S. at 10-11.
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915.
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances-where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or where a “fundamental miscarriage of justice” has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
As an alternative to demonstrating cause for failing to raise the claim, the petitioner may show a miscarriage of justice. To demonstrate a miscarriage of justice, the 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 demonstrate this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
DISCUSSION
The Court is not convinced that Ground One is not procedurally barred because it was not raised in the PCR proceeding or on writ of certiorari to the Supreme Court of South Carolina. However, because procedural default is an affirmative defense that is waived if not raised by respondents, Gray v. Netherland, 518 U.S. 152, 165-66 (1996), the Court addresses the merits of this ground.
Ground One alleges that the prosecutor violated Petitioner's due process rights by coercing him into agreeing to plead guilty to a 20-year negotiated plea to the single charge of armed robbery in exchange for the dismissal of the other three charges instead of honoring a previously negotiated agreement to allow Petitioner to plead guilty to all four charges in exchange for the same 20-year sentence. [Doc. 1 at 1-4.]
“To prevail on a due process claim of prosecutorial misconduct, the [party bringing the claim] must show both misconduct and resulting prejudice.” United States v. Howell, 584 Fed.Appx. 108, 109 (4th Cir. 2014) (appeal of a guilty plea and resulting sentence). Here, Petitioner cannot show any prejudice from the actions he alleges the prosecutor committed. In comparison to the agreement Petitioner claims the parties had negotiated previously, Petitioner received the very same sentence and he ended up with fewer convictions than he would have had under the previous agreement.
Accordingly, the Court recommends that Respondent's summary judgment motion be granted as to Ground One.
The Court is not convinced that Ground Two is not procedurally barred because it was not raised in the PCR proceeding or on writ of certiorari to the Supreme Court of South Carolina. However, because procedural default is an affirmative defense that is waived if not raised by respondents, Gray, 518 U.S. at 165-66, the Court addresses the merits of this ground.
In Ground Two, Petitioner claims that after discovering the details of the negotiated plea that the prosecutor was planning to present at the plea hearing, plea counsel was ineffective in failing to negotiate a new deal, failing to alert the plea court to the prosecutor's deviation from the plea the parties had previously agreed to, and advising Petitioner to accept the 20-year negotiated plea to the single charge of armed robbery and to not bring up the existence of a prior agreement to the plea judge. [Docs. 1 at 1-4; 1-3 at 5, 7, 8, 10.]
In Strickland v. Washington, the United States Supreme Court established that to challenge a conviction based on ineffective assistance of counsel, a prisoner must prove two elements: (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. 466 U.S. 668, 687 (1984). To satisfy the first prong, a prisoner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. To satisfy the second prong, a prisoner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The Supreme Court has cautioned that “[j]udicial scrutiny of counsel's performance must be highly deferential,” and “[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
Simply put, under the facts Petitioner has alleged, the negotiated plea that the plea judge accepted was at least as favorable for Petitioner as the plea he claims he had previously negotiated insofar as Petitioner received the same sentence but was convicted of fewer offenses. In light of that fact, plea counsel had no basis for complaining to either the prosecutor or the plea court, and there was certainly no reason to believe that the prosecutor would be willing to reduce the length of the sentence that Petitioner had already agreed to accept. Thus, nothing in the record indicates that plea counsel's representation was constitutionally deficient in the respects Ground Two alleges.
Petitioner appears to argue that the dismissal of the three additional charges “changes the nature of the” armed robbery offense that he pled to. [Doc. 30 at 2.] It appears that Petitioner believes that in the absence of the three additional charges, the armed robbery charge does not allege the weapon element of armed robbery. See, e.g., id. at 4 (“Without the weapon changes the nature of the offense and the offense is to be dropped to [a] lesser included offense.”). That is not correct. Indeed, Count One of his indictment, charging armed robbery, alleges that Petitioner committed the robbery while he “was armed with a deadly weapon, or while alleging, either by action or words, he was armed while using a representation of a deadly weapon or other object which a person present during the commission of the robbery reasonably believed to be a deadly weapon.” [App. 89.] That is what the applicable statute requires. See State v. Muldrow, 559 S.E.2d 847, 849 (S.C. 2002) (“Under § 16-11-330(A), the State may prove armed robbery by establishing the commission of a robbery and either one of two additional elements: (1) that the robber was armed with a deadly weapon or (2) that the robber alleged he was armed with a deadly weapon, either by action or words, while using a representation of a deadly weapon or any object which a person present during the commission of the robbery reasonably believed to be a deadly weapon.”).
Ground Three
In Ground Three, Petitioner claims that plea counsel did not conduct an adequate investigation to determine the strength of the evidence against Petitioner, nor did she move to suppress Petitioner's confession. [Doc. 1 at 5.]
Respondent argues that this claim is procedurally barred because it was not raised to any state court. [Doc. 23 at 15.] In his response in opposition to the motion for summary judgment, Petitioner does not address the procedural default question. [Doc. 30.]
The Court agrees with Respondent that the issue Petitioner identifies was not raised to any state court, as far as the Court can discern. Therefore, this issue was not fairly presented to the Supreme Court of South Carolina and is procedurally barred from federal habeas review unless Petitioner has demonstrated (1) cause for the procedural default and actual prejudice resulting from the alleged constitutional violation or (2) that a fundamental miscarriage of justice has occurred. See Coleman, 501 U.S. at 750 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review); Wainwright, 433 U.S. at 87; Matthews, 105 F.3d at 915. Because Petitioner does not raise cause and prejudice, the Court cannot consider Petitioner's procedurally defaulted claim. See Kornahrens, 66 F.3d at 1362-63.
The Court therefore recommends that Respondent's summary judgment motion be granted as to Ground Three and the Petition dismissed with prejudice to the extent the Petition is based on Petitioner's claim that plea counsel did not conduct an adequate investigation to determine the strength of the evidence against Petitioner and she did not move to suppress Petitioner's confession.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment [Doc. 24] be GRANTED and that the Petition be DENIED.
IT IS SO RECOMMENDED.