Opinion
C. A. 1:21-3076-BHH-SVH
04-12-2022
Tyrone Perry, # 307793, Petitioner, v. Warden Nelson, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge.
Tyrone Perry (“Petitioner”) is an inmate at Kirkland Correctional Institution of the South Carolina Department of Corrections who filed this pro se 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. 15, 16]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 17]. Petitioner filed a response [ECF No. 29], and the motion is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
Petitioner was indicted by the Spartanburg County grand jury in March 2005 for murder (2005-GS-42-0836). See Perry v. v. McCall, C/A No. i:i1-2334-MBS-SVH (“Perry I”), ECF No. 22-13 at 1-2. Petitioner was represented by James Hatcher, Esq. and pled guilty before the Honorable J. Cordell Maddox on February 1, 2006. [Perry I, ECF No. 22-1 at 3-27]. Judge Maddox sentenced Petitioner to fifty years imprisonment. Id. at 27.
The court takes judicial notice of documents submitted to this court in Petitioner's prior 28 U.S.C. § 2254 case, including the Order issued in that case adopting the Report and Recommendation and granting Respondent's motion for summary judgment and dismissing the petition. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“[t]he most frequent use of judicial notice of ascertainable facts is in noticing the content of court records”) (citation omitted); Slaughter v. Wright, 135 F.2d 613, 615 (4th Cir. 1943).
Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals (“Court of Appeals”). On appeal, Petitioner was represented by Robert M. Dudek (“Dudek”) of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who filed an Anders brief on March 12, 2007, raising the following issue: “Whether appellant's waiver of rights colloquy failed to satisfy the mandates of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969) since it was less than one page of transcript long and consequently was not a meaningful waiver?” [Perry I, ECF No. 22-4 at 4]. Dudek certified to the court that the appeal was without merit and asked to be relieved as counsel. Id. at 9. Petitioner filed a pro se response to the Anders brief in which he claims his attorney was ineffective and his guilty plea was involuntary. [Perry I, ECF No. 22-5].
Anders v. California, 386 U.S. 738, 744 (1967), requires that counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited.
On April 7, 2008, the Court of Appeals filed an unpublished decision dismissing Petitioner's appeal pursuant to the Anders procedure. [Perry I, ECF No. 22-1 at 40-41]. The remittitur was issued on April 24, 2008. [Perry I, ECF No. 22-6].
Petitioner filed an application for post-conviction relief (“PCR”) on February 19, 2008, in which he alleged ineffective assistance of counsel and involuntary guilty plea. [Perry I, ECF No. 22-7]. A PCR evidentiary hearing was held before the Honorable J. Mark Hayes II, Circuit Court Judge, on July 28, 2009, at which Petitioner and his counsel, Kenneth P. Shabel, Esq., appeared. [Perry I, ECF No. 22-1 at 54-56, ECF No. 22-2 at 1-41]. On October 13, 2009, Judge Hayes entered an order of dismissal. [Perry I, ECF No. 22-2 at 43-49]. On March 22, 2010, Petitioner appealed to the South Carolina Supreme Court from the denial of PCR. [Perry I, ECF No. 22-8].
Appellate Defender Wanda H. Carter of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal and filed a Johnson petition for writ of certiorari in the South Carolina Supreme Court on March 15, 2010, and petitioned to be relieved as counsel. [Perry I, ECF No. 22-9]. The petition raised the following issue: “Trial counsel erred in failing to fully explain to petitioner sentencing consequences in the case.” Id. at 3. Petitioner filed a pro se brief in which he raised the following issues:
A Johnson petition is the state PCR appeal analogue to an Anders brief that effectively concedes the appeal lacks a meritorious claim. See Johnson v. State, 364 S.E.2d 201 (S.C. 1988).
Respondent represents that documents attached to the Johnson petition reflect that Petitioner submitted a pro se Rule 59(e), SCRCP, motion, but this motion was not considered because it was deemed untimely and because it was submitted pro se when Petitioner was represented by counsel, as South Carolina does not recognize a right to hybrid representation. [ECF No. 15 at 3 n.4].
1. Whether PCR counsel was ineffective for failing to seek appellate review to preserve issues raised at PCR to satisfy the mandates of Pruitt v. State, 310 S.C. 254, 423 S.E.2d 127 (1992) and Austin v. State, 409 S.E.2d 395 (1992) since a 59(e) motion wasn't filed.
2. Whether PCR court erred in dismissing Post conviction relief application and not complying with S.C. Code Ann. § 17-2780 (1985) and Rule 52(a) SCRCP because dismissal doesn't contain specific findings of fact and conclusions of law with regard to each issue raise in petitioner's application and at the hearing.[Perry I, ECF No. 22-10].
On July 21, 2011, the South Carolina Supreme Court denied the petition and granted counsel's request to be relieved. [Perry I, ECF No. 2211]. The remittitur was issued on August 9, 2011. [Perry I, ECF No. 22-12].
On September 2, 2011, Petitioner filed a pro se federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court [Perry I, ECF No. 1], in which he raised four allegations:
Ground one: Failure to call witnesses (investigate).
Supporting facts: Crime scene witnesses, alibi witnesses. Failure to investigate witnesses before advising to plea.
Ground two: Counsel failed to investigate medical records.
Supporting facts: Ineffective for failing to investigate medical records (mental health records) and psychiatrists of petitioner.
Ground three: Failure to suppress statements.
Supporting facts: Failed to file motion to suppress coerced statements made by police.
Ground four: Government breached plea agreement.
Supporting facts: Plea counsel coerced petitioner by telling him he would receive 25 years with two witnesses present. Petitioner actually got 50 years.See id. After Respondent filed for summary judgment, the undersigned filed a Report and Recommendation on May 17, 2012, recommending that the motion be granted, as Petitioner had procedurally defaulted on his four claims because
These grounds were not argued during the PCR proceeding, nor addressed by the order denying PCR relief. Petitioner has not demonstrated that he sought a ruling by filing a timely Rule 59(e) motion. Under state court procedure, the state supreme court has held that such issues are not preserved for consideration on appeal.Perry v. McCall, C/A No. 1:11-2334-MBS-SVH, 2012 WL 3749484, at *6 (D.S.C. May 17, 2012), report and recommendation adopted, C/A No. 1:11-2334-MBS, 2012 WL 3751568 (D.S.C. Aug. 28, 2012). The undersigned further found that Petitioner had not shown cause for and prejudice from the default of these claims, or that the failure to consider the claims would result in a fundamental miscarriage of justice. Id. at *7-9.
In the order adopting the Report and Recommendation, the district judge stated:
Petitioner generally raised Grounds One through Four at his PCR hearing. The PCR judge determined that Petitioner did not receive ineffective assistance of counsel. However, as demonstrated hereinabove, Petitioner did not seek a writ of certiorari as to any of these specific grounds for relief. Rather, PCR appellate counsel raised an issue regarding Petitioner's understanding that he would receive a “day for day” sentence. Petitioner raised grounds concerning Rule 59(e). Petitioner now would be prohibited by state procedural rules from filing a petition for writ of habeas corpus as to Grounds One through Four. See S.C. R. App. P. 203. Accordingly, these issues are barred from federal habeas review.Perry, 2012 WL 3751568, at *5. The district judge further found that Petitioner had not shown cause for and prejudice from the default of these claims or that the failure to consider the claims would result in a fundamental miscarriage of justice. She also denied a certificate of appealability. Id. at *6-7.
Petitioner then perfected an appeal to the Fourth Circuit Court of Appeals (“Fourth Circuit”). On March 12, 2013, the Fourth Circuit dismissed the appeal and denied the certificate of appealability. Perry v. McCall, 513 Fed.Appx. 363 (4th Cir. 2013). Petitioner's petition for writ of certiorari filed with the United States Supreme Court was denied on February 24, 2014. Perry v. McCall, 571 U.S. 1205 (2014).
Thereafter, Petitioner has filed three successive and unsuccessful PCR actions, ultimately resulting in the following order being issued by the South Carolina Supreme Court on August 4, 2021:
Petitioner filed a notice of appeal from the dismissal of his fourth application for post-conviction relief (PCR). Petitioner was asked to provide proof of service of the notice of appeal and the explanation required by Rule 243(c), SCACR, as to why the PCR court's dismissal of his application was improper. Additionally, in light of the number of PCR applications petitioner has filed, he was asked to provide any reasons this Court should not impose restrictions on his filing of collateral actions challenging his 2006 conviction and sentence for murder.
Petitioner failed to respond or provide the information requested by the Court. Accordingly, we dismiss the notice of appeal for failure to provide an explanation pursuant to Rule 243(c), SCACR, and failure to provide proof of service of the notice of appeal pursuant to Rule 203(d)(1)(B)(i), SCACR.
Further, Petitioner has not provided any reason why this Court should not restrict his filing of collateral actions. Accordingly, we hereby prohibit petitioner from filing any further collateral
actions in the circuit court, including PCR and habeas corpus actions, as well as any motions relating to his previously filed collateral actions or his underlying criminal conviction and sentence, including a motion pursuant to Rule 29, SCRCrimP, without first obtaining permission to do so from this Court.[ECF No. 15-35, see also ECF No. 15 at 7-13].
On September 23, 2021, Petitioner filed the instant habeas petition. [ECF No. 1].
II. Discussion
A. Federal Habeas Issues
Petitioner raises the following grounds for relief:
Ground One: Whether the [Petitioner's] due process and equal protection [rights] in Goss v. State [were] violated per the 14th Amend. and whether it results in a fundamental miscarriage of justice.
Supporting Facts: South Carolina clearly established statutes that are clearly established [that] were violated and a new ground not previously recognized was retroactive and not recognized per the respondents. The [Petitioner] filed properly in a timely manner and was denied the equal protection of the law that the 14th amendment abridges. The respondent violated discovery in the [Petitioner's] 1st action so the issue was improperly raised inadequately and not asserted.
Ground Two: Whether [Petitioner's] due process and equal protection [rights] in Rodriguez-Penton v. U.S. [were] violated per the 14th [Amendment] and rather it resulted in a fundamental miscarriage of justice.
Supporting Facts: The retroactive decision states there's no constitutional right to plea bargain. And
effective counsel has to be effective and that's my right. [Petitioner] raised under federal law pursuant to South Carolina statutes. Sounds similar to issue [previously raised] ¶ 1st application but different in structure. The respondents erroneously applied laws . ...
Ground Three: Whether [Petitioner's] due process and equal protection[] [rights] in McCoy v. Louisiana [were] violated and whether it is a fundamental miscarriage of justice in result.
Supporting Facts: The respondents state res judicata, statute [of] limitations and successiveness bar the application. Although clearly establish[ed] statutes in place permit the respondents denial the [Petitioner] an attorney and hearing. [(Sic)]. In the [Petitioner's] original application a similar ground was raised but inadequately raised due to the respondents not disclosing discovery per statutes and court rules. So external interference impeded on the [Petitioner] and his attorney to comply with procedural rules.
Ground Four: Whether due process and equal protection[] apply to DSMS mental health [and] drug addiction now classified as brain disorder to weigh mitigating and aggravating factors.
Supporting Facts: DSMS manual labels drug addiction as a brain disorder. Being that the [Petitioner] is already mentally ill judge used alleged drug use as an aggravating factor, but it's now a mental disorder. So more mitigating factors to outweigh the aggravating factor.[ECF No. 1 at 5-10 (spelling and punctuation altered)]. Petitioner additionally filed a document entitled “attachment to application,” in which he asserts the following:
Ground Five: [As to] Grounds one through four, the process received in the past and currently was so fundamentally unfair it shocks . . . as a matter of Butler v. State.[ECF No. 10].
B. Standard for Summary Judgment
Summary judgment is appropriate “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). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. 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.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
C. Habeas Corpus Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the AntiTerrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the petitioner's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975).
D. Analysis
The instant petition seeks a writ of habeas corpus on the same conviction and sentence as in Perry I. Under the AEDPA, an individual may not file a second or successive petition for a writ of habeas corpus under 28 U.S.C. § 2254 or a motion to vacate sentence under 28 U.S.C. § 2255 without first receiving permission to do so from the appropriate circuit court of appeals. In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). Specifically, 28 U.S.C. § 2244(b)(3)(A) requires a prospective applicant to file with the court of appeals a motion for leave to file a second or successive habeas application in the district court. 28 U.S.C. § 2244(b)(3)(A). A three-judge panel has thirty days to determine whether “the application makes a prima facie showing that the application satisfies the requirements of [28 U.S.C. § 2244(b)].” 28 U.S.C. §§ 2244(b)(3)(B)-(D). For this court to consider a second or successive § 2254 petition, Petitioner must obtain a Pre-Filing Authorization from the Fourth Circuit under 28 U.S.C. § 2244(b)(3). See In re Williams, 330 F.3d 277 (4th Cir. 2003); In re Fowlkes, 326 F.3d 542 (4th Cir. 2003).
Petitioner argues that “[n]o permission is needed from the 4th Circuit due to these are new issues under new rules per South Carolina relevant law through clearly established federal law.” [ECF No. 29 at 10]. However, the instant action qualifies as a second or successive § 2254 action because Petitioner has previously filed a § 2254 petition, which was denied on the merits. The Supreme Court has found that a habeas petition filed after “an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.” Slack v McDaniel, 529 U.S. 473, 485-86 (2000). Here, however, Petitioner's prior petition was adjudicated on the merits, as the Respondent's motion for summary judgment was granted based on procedural default. As held by the Fourth Circuit:
Our sister circuits have held that dismissal of a habeas petition for procedural default is a dismissal on the merits for purposes of determining whether a habeas petition is successive. We agree.
By every reckoning, a dismissal for procedural default is a dismissal on the merits. It is critically different from a dismissal for failure to exhaust which does not prevent federal habeas review at a later date.Harvey v. Horan, 278 F.3d 370, 379-80 (4th Cir. 2002) (citations omitted), abrogated on other grounds by Skinner v. Switzer, 562 U.S. 521 (2011).
Petitioner has failed to show he obtained authorization from the Fourth Circuit to file a successive habeas petition in the district court, and therefore this court does not have jurisdiction to consider it.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's motion for summary judgment and dismiss the petition with prejudice.
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
901 Richland Street
Columbia, South Carolina 29201
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).