Opinion
C. A. 5:21-763-TMC-KDW
11-04-2021
William S. Pegues, Petitioner, v. Warden Kendall, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
William S. Pegues (“Petitioner”) is a state inmate who filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 20, 21. Petitioner failed to respond. The court issued an order on July 28, 2021, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to the motion by August 16, 2021. ECF No. 26. On August 18, 2021, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment, ECF No. 29, and Respondent filed a Reply on August 24, 2021. ECF No. 30.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 21, be granted, and this Petition be denied.
I. Background
Petitioner is currently incarcerated at the Lieber Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the March 2016 term of the Chesterfield County Grand Jury for first degree burglary, assault and battery of a high and aggravated nature (“ABHAN”), and possession of a weapon during the commission of a violent crime. App. 88-93. On January 10, 2017, Petitioner appeared before Judge Paul M. Burch for a plea hearing. App. 1-22. Petitioner was represented by Attorney Ashley McIntyre, and Solicitor Mary Thomas-Johnson Lee appeared on behalf of the State. Id. According to the facts presented by the solicitor, victim Ricky Bullock (“Bullock”) was asleep in bed when he was woken by gunshots and someone yelling, and an individual with a black scarf around his face walked into his room. App. 8. Bullock stated he recognized Petitioner's voice and asked him what he was doing, and Petitioner replied he was not Petitioner, told Bullock to “get it all, ” and fired three to four warning shots into the floor. Id. The gun jammed, and Bullock rushed Petitioner and grabbed the gun, and Petitioner hit Bullock in the head with the gun. App. 8-9. Bullock yelled to victim Gary Foreshee (“Foreshee”) for help and Bullock and Foreshee fought Petitioner from the bedroom to the kitchen. App. 9. Bullock then grabbed a baseball bat and hit Petitioner in the head, and Petitioner was knocked unconscious. Id. Petitioner tried to run for the front door when he regained consciousness, and Bullock and Foreshee tackled Petitioner and subdued him until law enforcement arrived. Id. The Chesterfield County Sheriff's Office received a call about a home invasion, and when officers arrived on the scene, Bullock was standing at the door with a bleeding head wound. App. 8. When officers entered the residence, they observed Petitioner lying on the floor with a bleeding head wound, and Foreshee was near the couch with blood on him. Id. Bullock and Foreshee told the officers Petitioner and another male tried to rob them, and the second person exited the house via the window. Id. Petitioner entered a negotiated guilty plea to burglary, ABHAN, and possession of a weapon during the commission of a violent crime. App. 4-7. Judge Burch sentenced Petitioner to concurrent terms of 7 years for ABHAN, 5 years on the weapon charge, and 15 years on burglary. App. 15-16, 22. Petitioner filed a notice of appeal that was dismissed by the South Carolina Court of Appeals (“Court of Appeals”) on February 16, 2017. ECF No. 1 at 2.
Citations to “App.” refer to the Appendix for Petitioner's guilty plea transcript and Post-Conviction Relief (“PCR”) Proceedings. That appendix is available at ECF Nos. 20-1 in this habeas matter.
II. Procedural History
Petitioner filed an application for Post-Conviction Relief (“PCR”) on April 28, 2017. App. 25-29. Petitioner asserted he was being held in custody unlawfully due to ineffective assistance of counsel, involuntary guilty plea, and denial of due process. App. 26-27. The State filed a Return and Motion for More Definite Statement on December 6, 2017. App. 30-36.
A motion hearing convened on August 21, 2019, before the Honorable Brooks P. Goldsmith. App. 37- 76. Petitioner was present and represented by Attorney L. Sherril Alford, and Assistant Attorney General Jacob A. Isenberg appeared on behalf of the State. See Id. Petitioner and plea counsel Attorney Ashley D. McIntyre appeared and testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on September 30, 2019, making the following findings of fact and conclusions of law:
This Court has reviewed the testimony presented at the evidentiary hearing, observed the witnesses presented at the hearing, passed upon their credibility, and weighed the testimony accordingly. Further, this Court has reviewed the records submitted to it by the parties and the legal arguments made by the attorneys. Pursuant to S.C. Code Ann. § 17-27-80, this Court makes the following findings based upon all of the probative evidence presented.
A. Ineffective Assistance of Counsel
Applicant's allegations of ineffective assistance of counsel are without merit. In a PCR action, Applicant bears the burden of proving the allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, Applicant must prove that counsel's conduct so undermined the proper functioning of the adversarial process that [it] cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984); Butler, 286 S.C. at 442, 334 S.E.2d at 814.
In evaluating allegations of ineffective assistance of counsel, the reviewing court applies the two-pronged test outlined in Strickland. First, Applicant must prove that counsel's performance was deficient. Strickland, 466 U.S. at 686; Cherry v. State, 300 S.C. 115, 117, 386 S.E.2d 624, 625 (1989). Under this prong, the court measures an attorney's performance by its reasonableness under prevailing professional norms.” Cherry, 300 S.C. at 117, 386 S.E.2d at 625 (quoting Strickland, 466 U.S. at 690). The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Butler, 286 S.C. at 442, 334 S.E.2d at 814. “Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. (citing Strickland, 466 U.S. at 690). “When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he [or she] did so for tactical reasons rather than through sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Strickland, 466 U.S. at 690). The Court, in determining deficiency, must affirmatively entertain the range of possible reasons counsel may have had for proceeding as they did. Cullen v. Pinholster, 563 U.S. 170, 196 (2011); Harrington v. Richter, 562 U.S. 86 109-10 (2011). “[E]ven if an omission is inadvertent, relief is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough at 6; see also Murphy v. Davis, 901 F.3d 578, 592 (5th Cir. 2018) (“[C]ounsel's performance need not be optimal to be reasonable.”). Applicant must overcome this presumption to receive relief. Cherry, 300 S.C. at 118, 386 S.E.2d at 625.
Second, counsel's deficient performance must have prejudiced Applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. “The prejudice analysis requires the court deciding the ineffectiveness claim to consider the totality of the evidence before the judge or jury.'' United States v. Basham, 789 F.3d 358, 371-72 (4th Cir. 2015) (quoting Elmore v. Ozmint, 661 F.3d 783, 858 (4th Cir. 2011)).
In the context of a guilty plea, Applicant must show that there is a reasonable probability that, but for counsel's alleged errors, he/she would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Because a guilty plea is a solemn, judicial admission of the truth of the charges against an individual, the PCR applicant's right to contest the validity of such a plea is usually, but not invariably, foreclosed. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”). Statements made during a guilty plea should be considered conclusively unless an Applicant presents valid reasons why he or she should be allowed to depart from the truth of his statements. Dalton v. State, 376 S.C. 130, 137-38, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Crawford v. United States, 519 F.2d 347, 350 (4th Cir. 1975)).
The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Strickland, 466 U.S. at 696. A court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Id. at 696-97.
Failure to Investigate Witnesses
Applicant contends Counsel deficiently failed to interview witnesses present during the incident. In reviewing a claim that defense counsel failed to properly investigate a defense to a crime, a court's principle concern is whether the investigation “was itself reasonable.” Taylor v. State, 404 S.C. 350, 364, 745 S.E.2d 97, 104 (2013). However, Counsel is not deficient in conducting a reasonable investigation as long as they interview potential witnesses “when it is reasonable to do so.” Edwards v. State, 392 S.C. 449, 457, 710 S.E.2d 60, 65 (2011).
Here, Applicant testified there were several people in the house where the incident took place. Applicant testified some of them witnessed him being brutally beaten by a resident of the home. Applicant also testified one of them actually gave him permission to enter the home. Finally, Applicant testified he notified Counsel to interview all of them.
On the other hand, Counsel credibly testified she investigated all the factual witnesses identified by law enforcement. Counsel credibly recalled law enforcement turned over multiple statements from all named eyewitnesses. Counsel credibly testified Applicant did not provide her with any additional individuals to investigate beyond those identified by law enforcement. Moreover, Counsel credibly testified she advised Applicant being assaulted inside the residence was not a defense to first degree burglary. Therefore, Counsel credibly testified witnesses corroborating him being beaten would not likely be seen as relevant. Additionally, Counsel credibly testified she reviewed all statements taken by law enforcement. Counsel credibly testified the statements taken did not reflect Applicant had permission to enter the home. In fact, Counsel credibly recalled residents of the home stated they only realized Applicant entered the home after he began firing gunshots.
Accordingly, this Court finds Counsel gave credible testimony on the issue. Counsel read the witness statements then listened to Applicant tell his side of the story. Thereafter, she accurately advised him the assault would not apply to defending a first degree burglary charge. Further, she advised him all factual witnesses gave written statements indicating he barged into the house firing shots without permission. Therefore, this Court finds Counsel reasonably decided not interview witnesses where she had their written statements and determined the assault to irrelevant to a defense of first degree burglary. This Court further finds Applicant has failed to overcome the burden to prove Counsel was deficient based upon a failure to interview eyewitnesses.
Applicant contends a factual witness would have testified he had permission to enter the home. The prejudice prong is dependent upon whether counsel's deficiencies “affected the outcome of the plea process.” Frierson v. State, 417 S.C. 287, 789 S.E.2d 762 (Ct. App. 2016), aff'd as modified, 423 S.C. 257, 815 S.E.2d 433 (2018). To establish it through witness corroboration an applicant “must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing.” Bannister v. State, 333 S.C. 298, 303, 509 S.E.2d 807, 809 (1998). “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. SCRE 801. Mere “speculation” about the details of what a witness would testify about is insufficient to establish prejudice. Dalton v. State, 376 S.C. 130 at 143, 654 S.E.2d 870 at 877.
Here, Applicant did not specifically name the individual who allegedly gave him permission to enter the home. Moreover, nobody testified on his behalf at this evidentiary hearing. Therefore, this Court finds Applicant is insufficiently speculating he would receive favorable testimony from the unidentified witness. This Court finds Applicant has failed to overcome the burden to prove he suffered prejudice resulting from the failure to interview factual witnesses.
B. Involuntary Guilty Plea
To find a guilty plea voluntarily and knowingly, the record must establish the defendant had a full understanding of the consequences of his plea and the charges against him. Roddy v. State, 339 S.C. 29, 528 S.E.2d 418 (2000). Also, an applicant's statements during the plea hearing are considered “conclusive unless [he] presents valid reasons why he should be allowed to depart from the truth” of them. Dalton v. State, 376 S.C. 130, 137, 654 S.E.2d 870, 874 (Ct. App. 2007). Finally, the plea colloquy can cure any alleged deficiency if counsel [did] not properly advise an applicant about the consequences of accepting it. See Wolfe v. State, 326 S.C. 158, 165, 485 S.E.2d 367, 370 (1997) (stating that plea counsel's deficient performance can be cured by the plea court's colloquy).
Erroneous Sentence Advice
Applicant contends he did not enter a knowing plea based upon wrongfully believing conviction at trial would automatically result in a life sentence. Burglary in the first degree is a felony punishable by life imprisonment. S.C. Code Ann. § 16-11-311 (B). However, a court may sentence the defendant to a term of not less than fifteen years. Id.
Here, Applicant testified he wanted to go to trial on the first degree burglary charge. Thereafter, Applicant testified Counsel advised him conviction at trial would result in a mandatory sentence of life without parole. Finally, Applicant testified he entered a guilty plea to avoid exposure to this mandatory life sentence at trial.
On the other hand, Counsel credibly testified she accurately advised Applicant about sentencing requirements for first degree burglary. Specifically, Counsel credibly testified she advised Applicant he could receive a life sentence if a jury found him guilty. However, Counsel credibly testified she advised Applicant he could not receive less than fifteen years if a jury found him guilty.
Accordingly, the issue here is whether Applicant knew the potential consequences of being convicted of first degree burglary. Counsel gave credibly [sic] testimony she accurately advised Applicant about relevant sentencing consequences. Also, the plea court advised Applicant about potential sentencing consequences of first degree burglary. (Tr. 4). Thereafter, Applicant notified the plea court he still wished to plead guilty. (Tr. 5). Accordingly, this Court finds Applicant knew the potential consequences of being convicted of first degree burglary. As a result, he has failed to overcome the burden to prove his decision to plea was not knowing or voluntary.
IV. CONCLUSION
Based on all the foregoing, this Court finds and concludes that Applicant has not established any constitutional violations or deprivations that would require this Court to grant his application. Therefore, this application for post-conviction relief must be denied and dismissed with prejudice.App. 80-86. Petitioner appealed the dismissal of his PCR application and Chief Appellate
Defender Robert M. Dudek represented Petitioner on appeal. ECF No. 20-2. Attorney Dudek filed a Johnson petition for writ of certiorari in the South Carolina Supreme Court on August 21, 2020, raising the following issue:
Whether the PCR court erred by finding petitioner was effectively represented where he pled guilty because he was erroneously led to believe by defense counsel that he would be sentenced to life imprisonment if he was convicted of burglary in the first degree where the probability of that sentence was almost non-existent given the facts of this case?Id. at 3. Petitioner's counsel asserted that the petition was without legal merit to warrant a new trial and requested permission to withdraw from further representation. Id. at 11. Petitioner filed a pro se response in which he contends he did not want to accept the plea offer and wanted to go to trial. ECF No. 20-4. Petitioner alleges his attorney took advantage of his recent hospitalization to badger him into taking the plea, advising Petitioner he was facing a life sentence. Id. Petitioner states he told his attorney he wanted new counsel and she told him the judge would not approve his request. Id. Petitioner claims his attorney failed to interview or subpoena the other persons in the house who let him in and who helped Petitioner after he was beaten and robbed. Id. Petitioner claims he had witnesses who were going to testify at his PCR hearing, but his hearing was moved to another county without his knowledge. Id. On September 28, 2020, the South Carolina Supreme Court transferred the petition to the Court of Appeals. ECF No. 20-5. The Court of Appeals denied the Petition for Writ of Certiorari on January 22, 2021. ECF No. 20-6. The Remittitur was issued on February 22, 2021. ECF No. 20-7. This Petition followed on March 17, 2021. ECF No. 1.
III. Discussion
A. Federal Habeas Issues
Petitioner raises the following issues in his Federal Petition for a Writ of Habeas Corpus:
Ground One: Ineffective Assistance of Trial & PCR Counsel.
Supporting Facts: Trial counsel failed to adequately investigate the case to determine in fact whether the accused was at fault in bringing on the difficulty. Or whether there was an unlawful entry to support the generic term “burglary.”
PCR counsel was ineffective by failing to move for a continuance of the evidentiary hearing. Knowing, Applicant was continuously told the hearing would be held in “Marlboro County”. And on the day of the hearing, it was instead held in “Chesterfield County.” Depriving the Applicant of a fair PCR.
Ground Two:Denial of Due Process.
Supporting Facts: Petitioner alleges his due process rights were violated when he was led to believe his PCR hearing would be held in one county, but actually was held in a different county. Petitioner argues he did not have a fair opportunity, according to South Carolina Rules of Civil Procedure, to present witnesses and accompanying evidence.ECF Nos. 1 at 5-6; 1-1 at 3-5.
B. Standard 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “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 “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
C. Habeas Corpus Standard of Review
1. Generally
Because 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, 336 (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)(1)(2); see Williams v. Taylor, 529 U.S. 362, (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.” Id. at 411.
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States, ” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[, ]” it “must be objectively unreasonable, ” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to state-court factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court. b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential, ” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[, ]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
Where allegations of involuntary guilty pleas are concerned, the United States Supreme Court has held that a guilty plea is constitutionally valid if it “‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'ˮ Hill v. Lockhart, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. at 31). “Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.ˮ Id. . at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). A plea is knowingly and intelligently made if a defendant is “‘fully aware of the direct consequences' of his guilty plea and not induced by threats, misrepresentation, including unfulfilled or unfulfillable promises, or by “promises that are by their nature improper as having no relationship to the prosecutor's business.” Brady v. United States, 397 U.S. 742, 755 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957)). Because a guilty plea is a solemn, judicial admission of the truth of the charges against an individual, a criminal inmate's right to contest the validity of such a plea is usually, but not invariably, foreclosed. Blackledge v. Allison, 431 U.S. 63, 74-75 (1977). Therefore, statements made during a guilty plea should be considered conclusive unless a criminal inmate presents reasons why he should be allowed to depart from the truth of his statements. Crawford v. United States, 519 F.2d 347 (4th Cir. 1975), overruled on other grounds by United States v. Whitley, 759 F.2d 327, 350 (4th Cir. 1985); Edmonds v. Lewis, 546 F.2d 566, 568 (4th Cir. 1976). Insofar as the review of claims of ineffective assistance of counsel raised by persons who pleaded guilty is concerned, the United States Supreme Court has stated,
Hindsight and second guesses are also inappropriate, and often more so, where a plea has been entered without a full trial . . . . The added uncertainty that results when there is no extended, formal record and no actual history to show how the charges have played out at trial works against the party alleging inadequate assistance. Counsel, too, faced that uncertainty. There is a most substantial burden on the claimant to show ineffective assistance. . . .Premo v. Moore, 562 U.S. 115, 132 (2011).
2. 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. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner 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.
a. 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.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). 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 be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by section 17-27-80 of the South Carolina Code, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR 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.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains: [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case. Reed v. Ross, 468 U.S. 1, 10-11 (1984).
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. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 23, 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).
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. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996). 3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray, 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 that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. 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 in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. IV. Analysis
A. Ineffective Assistance of Trial Counsel
In Ground One, Petitioner argues his trial counsel failed to fully investigate the facts surrounding his charges. ECF No. 1-1 at 3. Petitioner claims his counsel spent an excessive amount of time trying to get him to accept a 12-year plea instead of preparing his case for trial. Id. Petitioner states he finally relented and a gave into a 15-year negotiated plea, but his plea was not voluntary. Id.
At the PCR evidentiary hearing, Petitioner testified he met with trial counsel two to three times to discuss his case. App. 47. Petitioner said he was trying to prove he was not guilty of burglary and he told his counsel he did not break into the house and that he was defending himself when three people jumped him. Id. Petitioner testified he told counsel he wanted a jury trial and she told him that he should take the plea offer because he was facing a life sentence. App. 50. Petitioner said he told counsel he was going to ask for another attorney who would help him and counsel told him the judge would probably not get him another attorney. Id. Petitioner said he pointed out to his attorney individuals who were at the house when he was beaten, and he wondered why she did not try to get their names and subpoena them to come to court. App. 49-50. Petitioner testified counsel told him she did not think they could win his case. App. 50. Petitioner stated he pled guilty because he did not think he had a choice, believing he would either get 15 years or life. Id.
Petitioner's plea counsel testified she never visited the scene of the crime because the State produced discovery with almost 100 pictures, and she did not think it was prudent to visit the house. App. 59. Counsel stated as part of her investigation she reviewed the video interviews of Petitioner, his co-defendants, and the victims which gave her a very complete picture of everyone's story. Id. Counsel testified she spoke with Petitioner to get his version of the events and she attempted to follow up on some of the things he said about the victim being a drug dealer. App. 59-60. Counsel said she investigated Petitioner's story that he was invited into the house and the victims tried to kill him, but she explained to Petitioner that his story did not negate what Petitioner did by walking in the house, firing multiple shots, and physically fighting both victims. App. 60. Counsel stated she informed the plea court that she believed that Bullock had every intention of killing Petitioner if someone had not called the police. App. 60. Counsel testified that she met with Petitioner two to three times before the case was set for trial, and three or four times after the date was set. App. 61. Counsel stated that she could not recall if Petitioner told her he wanted to go to trial, but she was unable to get in contact with him for a period of time, so she made preparations for trial because she did not know how the case would work out. App. 62. Counsel stated she spoke with Petitioner early in her representation about the plea offer and reviewed the elements of the crime, and the possible sentences. Id. Counsel testified she never told Petitioner he would automatically receive a life sentence if found guilty, and she was sure she told him multiple times that burglary first carries a mandatory minimum sentence of 15 years to life. Id.
In rejecting Petitioner's claim that his counsel was ineffective for failing to adequately investigate his case, the PCR court found counsel credibly testified she listened to Petitioner's version of the story and reviewed all the statements taken by law enforcement, and the statements did not reflect Petitioner had permission to enter the home. App. 83. The court also found counsel accurately advised Petitioner that the assault was not a defense to first degree burglary. Id. The court concluded counsel reasonably decided not to interview witnesses, and Petitioner failed to establish counsel was deficient. Id. Addressing Petitioner's claim that factual witnesses would have testified he had permission to enter the home, the PCR court found Petitioner did not specifically name the individual who allegedly gave him permission to the enter the home, and no one testified on Petitioner's behalf at the evidentiary hearing. App. 84. The court concluded Petitioner failed to establish he suffered prejudice resulting from the failure to interview factual witnesses. Id.
The PCR court also found Petitioner's involuntary guilty plea claim to be without merit explaining Petitioner knew the potential consequences of being convicted of first degree burglary. App. 86. The PCR court explained counsel credibly testified she accurately advised Petitioner about the sentencing requirements for first degree burglary. App. 85. The court also noted the plea court advised Petitioner about the potential sentencing consequences of first degree burglary, and thereafter, Petitioner notified the court he wished to plead guilty. App. 85-86.
In support of his Summary Judgment Motion, Respondent contends the PCR court made the correct decision to dismiss Petitioner's PCR application. ECF No. 20 at 12. Respondent contends Petitioner failed to provide any evidence to support his claim that his counsel was ineffective for failing interview persons who were in the house on the day of the crime. Id. Respondent points out that Petitioner never provided the names of witnesses nor did he testify that he subpoenaed these individuals but directed them to the wrong courthouse. Id.
In response, Petitioner reiterates the arguments raised in his habeas petition that he was denied due process by counsel's failure to adequately investigate his case, pressuring him to take a guilty plea, and was “duped” when his trial was held in a different county which prevented him calling defense witnesses. ECF No. 29.
To the extent Petitioner is attempting to raise a new ineffective assistance of counsel claim due to a change in location of this trial, this claim is not properly before the court. See, e.g., White v. Roche Biomedical Labs., Inc., 807 F.Supp. 1212, 1216 (D.S.C. 1992) (noting that “a party is generally not permitted to raise a new claim in response to a motion for summary judgment”).
In reply, Respondent argues Petitioner failed to prove his counsel was ineffective or that he is being incarcerated unlawfully. ECF No. 30.
Addressing Petitioner's ineffective assistance of counsel claim concerning counsel's failure to adequately prepare for trial and interview witnesses, the undersigned finds the evidence presented at the hearing supports the PCR court's finding that counsel provided representation within the range of competence required in criminal cases. The evidence in the record supports the court's findings that counsel reasonably decided to not to interview witnesses after interviewing Petitioner, reviewing witnesses' statements, and concluding the assault was irrelevant as a defense to first degree burglary. Additionally, Petitioner's failure to name the person who gave him permission to enter the home, or to offer this testimony at his PCR hearing, further supports the PCR court's conclusion that Petitioner failed to overcome the burden of proof showing he suffered prejudice from counsel's failure to interview witnesses. The PCR court's factual findings are based, in part, on its assessment that counsel's testimony was more credible than that of Petitioner. The PCR court's credibility determination is entitled to deference in this action. Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.”); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”). Petitioner may overcome this presumption of correctness only by showing “‘clear and convincing evidence to the contrary.'” Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Petitioner has shown no cause to discount the PCR court's credibility determination and the undersigned can find no basis in the record on which to overturn the state court decision.
Addressing Petitioner's involuntary guilty plea claim, the undersigned finds Petitioner chose to enter a negotiated guilty plea freely and voluntarily. Little v. Allsbrook, 731 F.2d 238 (4th Cir. 1984); U.S. v. Futeral, 539 F.2d 329 (4th Cir. 1976). At his plea hearing, the court advised Petitioner about the potential sentencing consequences of first degree burglary and Petitioner plead guilty. App. 7. Petitioner testified he understood he was waiving his right to a jury trial and the opportunity to put up his own defense and witnesses, and he stated he entered the guilty plea of his own free will and accord. App. 5-7. In light of the evidence presented, the undersigned finds the PCR court made reasonable findings of fact and reasonably applied federal law in denying Petitioner's involuntary guilty plea claim.
The undersigned finds the state court did not unreasonably apply the mandates of Strickland as Petitioner has failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding his ineffective assistance of counsel and involuntary guilty plea claims. Additionally, Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination of these issues given the evidence and record. Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (holding that federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding); Williams v. Taylor, 529 U.S. 420 (2000); Bell v. Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000); 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). Accordingly, Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of these issues. The undersigned recommends Petitioner's habeas petition be dismissed as to Petitioner's involuntary guilty plea and ineffective assistance of counsel claims.
B. Ineffective Assistance of PCR Counsel and Due Process Violations
In Ground One, Petitioner contends his PCR counsel was infective for failing to move for a continuance after the PCR hearing was moved from Chesterfield County to Marlboro County. ECF No. 1 at 5. Petitioner argues the change in location deprived him of witnesses because his witnesses were at the wrong courthouse. Id.
In Ground Two, Petitioner alleges his due process rights were violated when his hearing was moved to a different county which prevented Petitioner from having a fair opportunity to present witnesses and accompanying evidence. ECF No. 1-1 at 4.
Petitioner's allegations concerning the ineffective assistance of his PCR counsel and the violation of his due process rights are not cognizable on federal habeas review. The Fourth Circuit has held that alleged infirmities in a state post-conviction action are not matters that may be addressed in federal habeas actions. 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.”). The federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the Petitioner's collateral proceeding does not enter into the habeas calculations. 28 U.S.C. 2254(i); Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004); see also Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir. 2007) (“Because the Constitution does not guarantee the existence of state post-conviction proceedings, an infirmity in a state postconviction proceeding does not raise a constitutional issue cognizable in a federal habeas application.”) (internal citations, quotation marks, and alteration omitted). V. Conclusion and Recommendation
Therefore, based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 21, be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).