Opinion
C/A No. 4:07-652-SB-TER.
January 16, 2008
REPORT AND RECOMMENDATION
Petitioner, Tony Christopher Phillips ("petitioner/Phillips"), is an inmate in the custody of the South Carolina Department of Corrections (SCDC). Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 7, 2007. Respondent filed a motion for summary judgment on April 30, 2007, along with supporting memorandum. The undersigned issued an order filed May 1, 2007, pursuant toRoseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. Petitioner filed a response on June 7, 2007.
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
I. PROCEDURAL HISTORY
There has been no significant opposition filed as to the procedural history as set out by the respondent. In fact, petitioner states in his response that he "concedes as if verbatim the Respondents' account of the procedural history of the case to the extent that it contains nothing to foreclose his ground for relief based on subject matter jurisdiction claim and the issue regarding ineffectiveness of counsel." (Response, p. 1). Therefore, the undisputed procedural history as set out in respondent's memorandum will be discussed below.Indictments were prepared in Cherokee County charging petitioner with committing the crimes of criminal sexual conduct in the first degree ("CSC 1st) (03-GS-11-0246) {PCR App. 81-83}, burglary in the first degree ("burglary first") (03-GS-11-0247) {PCR App. 79-80}, kidnapping (03-GS-11-0252) {PCR App. 76-77}, armed robbery (03-GS-11-0253) {PCR App. 70-71}, and armed robbery (03-GS-11-0254) {PCR App. 73-74}.
Petitioner also had been indicted by the Spartanburg County Grand Jury for the crimes of kidnapping (03-GS-42-1264), kidnapping (03-GS-42-1265), and armed robbery (03-GS-42-1266).
Petitioner was represented at the trial level by Gary Wood, Esquire. On April 30, 2002, petitioner pleaded guilty to the charges in both counties before the Honorable Gary E.Clary. Petitioner waived presentment to the grand jury of the Cherokee indictments {PCR App. 3-5; 14-15; 69; 72; 75; 78; 81}, and also agreed to allow the Cherokee County cases to be resolved in Spartanburg County {PCR App. 7-8}. In return, the State agreed to allow the cases from both counties to be handled together, so that petitioner would avoid the mandatory life without parole sentence that would otherwise come from separate resolution under the state's "two strikes" law for recidivism. {PCR App. 22}. See S.C. Code Ann. § 17-25-45 Rev. 2003).
Petitioner argues in ground one of his petition that the indictments were invalid because there was not a valid waiver of presentment to the Cherokee Grand Jury.
Judge Clary then sentenced petitioner to concurrent terms of thirty (30) years on all of the offenses. {PCR App. 23-24; 69; 72; 75; 78; 81}.
Upon information and belief, there was no direct appeal from this conviction and sentence.
Petitioner next filed an Application for Post-Conviction Relief ("APCR") on January 7, 2003, (2003-CP-11-0010). In the APCR, Petitioner raised the following grounds for relief:
(1) Ineffective assistance of counsel at guilty pleas
(2) Defective indictment
(3) No venue proven at trial
(4) Not allowed to plead to each indictment at trial
(5) Constitution 5, 6, 14 Amendment violated
(6) Bar to a trial under double jeopardy clause and bar to retrial
{PCR App. 26}. Petitioner filed a pro se Amended Application for Post-Conviction Relief on March 28, 2003, in which he raised the following issues:
(1) Trial Court lacked subject matter jurisdiction to accept Applicants's guilty plea(s) absent valid waiver(s) of presentment and absent True Bill on (?) Indictments(s) by Grand Jury Foreman/Lady.
(2) Counsel was ineffective for not bringing to the Judge's attention the invalid Indictment(s).
{PCR App. 33}. The State filed a Return dated August 4, 2004. {PCR App. 51}.
Attorney Wade S. Weatherford was initially appointed to represent petitioner in his APCR. However, when the case was called for evidentiary hearing on November 9, 2004, petitioner stated he wanted a continuance because he did not want his appointed attorney and wanted to hire a private attorney. Accordingly, on December 6, 2004, the Honorable J. Mark Hayes, II filed an Order in which he: (1) continued the case, and (2) gave petitioner sixty (60) days to notify the Court of hired counsel, or else the case could be dismissed for lack of prosecution.
Petitioner appeared again at an April 2004 PCR term before the Honorable John Milling, at which he stated he did not have attorney and had not been provided documents to prepare for the case. Judge Milling issued a Form Order on April 14, 2004, in which he continued the case to the next term and advised petitioner to get an attorney by then.
Petitioner apparently sent a pro se motion requesting appointed counsel to Judge Milling on May 3, 2005. However, the PCR case was called before the Honorable Doyet A. Early on May 16, 2005, and petitioner went forward pro se. {PCR App. 48}. At the hearing, petitioner claimed that his indictments lacked subject matter jurisdiction because there was not a valid waiver of presentment, that he did not understand what he was doing when he told the plea judge he waived presentment, and that his lawyer was ineffective for failing to assert the lack of presentment to the plea court. The judge orally denied relief at the hearing, and on July 25, 2005, filed an Order of Dismissal in which he rejected petitioner's claims for relief. {PCR App. 44}.
Petitioner timely filed with the South Carolina Supreme Court a pro se Notice of Appeal from Judge Early's Order of Dismissal. Wanda H. Carter of the South Carolina Office of Appellate Defense was appointed to represent petitioner in his PCR appeal. On March 13, 2006, Carter filed a "no merit" Johnson Petition for Writ of Certiorari and Petition to be Relieved as Counsel, in which she raised the following issue on behalf of petitioner:
The PCR court erred in dismissing petitioner's defective indictment claim. The State filed a letter Return to the Johnson Petition on March 14, 2006. The state supreme court issued an order on September 28, 2006, in which it denied the Johnson petition and granted the motion to be relieved. The Remittitur was sent down on October 30, 2006.
II. PETITIONER'S GROUNDS FOR RELIEF
In his pro se Petition for Writ of Habeas Corpus, petitioner raised the following challenges to his conviction, quoted verbatim:
Ground One: Trial court lacked subject matter jurisdiction, ineffective cansel [sic], invalid indictments. Supporting facts: Trial court lacked subject matter jurisdiction to accept applicant's guilty plea(s) absent valid waiver(s) of presentment and absent True Bill on each indictments by Grand jury foreman/lady Counsel was ineffective for not bringing to the Judge's attention the invalid indictments. (Habeas Petition, pp. 6).III. SUMMARY JUDGMENT
On April 30, 2007, the respondent filed a return and memorandum of law in support of their motion for summary judgment. As stated, petitioner filed a response in opposition on June 7, 2007.
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Department of Social Services, 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The movant has the burden of proving that a judgment on the pleadings is appropriate. Once the moving party makes this showing, however, the opposing party must respond to the motion with "specific facts showing that there is a genuine issue for trial." The opposing party may not rest on the mere assertions contained in the pleadings. Fed.R.Civ.P. 56(e) and Celotex v. Catrett, 477 U.S. 317 (1986).
The Federal Rules of Civil Procedure encourage the entry of summary judgment where both parties have had ample opportunity to explore the merits of their cases and examination of the case makes it clear that one party has failed to establish the existence of an essential element in the case, on which that party will bear the burden of proof at trial. See Fed.R.Civ.P. 56(c). Where the movant can show a complete failure of proof concerning an essential element of the non-moving party's case, all other facts become immaterial because there can be "no genuine issue of material fact." In the Celotex case, the defendants are "entitled to judgment as a matter of law" under Rule 56(c) because the petitioner has failed to make a sufficient showing on essential elements of his case with respect to which he has the burden of proof. Celotex, 477 U.S. at 322-323.
IV. STANDARD OF REVIEW
Since Phillips 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, 117 S. Ct. 2059 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998); Green v. French, 143 F.3d 865 (4th Cir. 1998). That statute now reads:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
In a thorough discussion of the application of this statute inGreen, the Fourth Circuit stated:
If a state court decision is in square conflict with a precedent (supreme court) which is controlling as to law and fact, then the writ of habeas corpus should issue; if no such controlling decision exists, the writ should issue only if the state court's resolution of a question of pure law rests upon an objectively unreasonable derivation of legal principles from the relevant supreme court precedents, or if its decision rests upon an objectively unreasonable application of established principles to new facts. In other words, habeas relief is authorized only when the state courts have decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable.See also Fitzgerald v. Greene, 150 F.3d 357, 362 (4th Cir. 1998);Wright v. Angelone, 151 F.3d 151, 156 (4th Cir. 1998); Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir. 1998). In Williams v. Taylor, 163 F.3d 860 (4th Cir. 1998), the court specifically rejected an argument that the standard of review enunciated inGreen, 143 F.3d 865, was erroneous. Thus, to a large extent, the amendment of § 2254 shifts the focus of habeas review to the state court application of Supreme Court law. See O'Brien v. DuBois, 145 F.3d 16 (lst Cir. 1998) ("the AEDPA amendments to section 2254 exalt the role that a state court's decision plays in a habeas proceeding by specifically directing the habeas court to make the state court decision the cynosure of federal review"). Further, the facts determined by the state court to which this standard is applied are presumed to be correct unless rebutted by the petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Wilson v. Moore, 999 F. Supp. 783 (D.S.C. 1998).
V. ARGUMENTS/FINDINGS
Petitioner alleges trial court lacked subject matter jurisdiction to accept his guilty plea asserting his indictments were invalid because there was not a valid waiver of presentment to the grand jury.
Respondent argues summary judgment should be granted as this issue fails to state a claim upon which relief may be granted. Specifically, respondent argues that this is "purely an issue of state jurisdictional law, and does not implicate any federal constitutional claims . . ." (memorandum).
In response, petitioner argues that he "does not dispute the fact that he signed the sentencing sheet and acknowledged to the court that he wished to waive the presentment of the grand jury. However, the petitioners contentions lies within the fact that even by his own consent or consent of the parties, the subject matter to which a court has not gained jurisdiction cannot be waived or conferred." (Response p. 5).
The undersigned recommends that this issue be dismissed. As this issue pertains to the state court's jurisdiction, this issue should be dismissed because claims arising from state law are not cognizable. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Jurisdiction is a non-cognizable state law issue. See Wright v. Angelone, 151 F.3d 151, 156-158 (4th Cir. 1998). Therefore, the undersigned recommends that this issue be dismissed.
Next, petitioner alleges trial counsel was ineffective for failing to inform the court that the indictments were invalid and/or failing to object to the allegedly defective indictment on the basis that it was not presented to the grand jury.
Respondent argues that petitioner signed waivers on five separate sentencing sheets, his attorney indicated on the record that he had explained the waiver of presentment to petitioner and in his opinion petitioner understood, and petitioner himself indicated his understanding of the right of presentment after explanation from the plea judge. Respondent also asserts that the state supreme court in State v. Smalls, 613 S.E.2d 754 (S.C. 2005) held that signing a sentencing sheet reflecting a waiver of presentment is sufficient for a valid waiver.
The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). In the case of Strickland, supra, the United States Supreme Court set forth two factors that must be considered in evaluating claims for ineffective assistance of counsel. A petitioner must first show that his counsel committed error. If an error can be shown, the court must consider whether the commission of an error resulted in prejudice to the defendant.
To meet the first requirement, "[t]he defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, at 688. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Turner v. Bass, 753 F.2d 342, 348 (4th Cir. 1985) (quoting Strickland, reversed on other grounds, 476 U.S. 28 (1986)). In meeting the second prong of the inquiry, a complaining defendant must show that he was prejudiced before being entitled to reversal. Strickland requires that:
[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Strickland, at 694.
The court further held at page 695 that:
[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . . the court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. (Emphasis added.)
In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Supreme Court clarified its definition of prejudice quoted above, stating that "an analysis focusing solely on mere outcome determination . . . is defective." Instead, an appropriate analysis of prejudice should consider "whether the result of the proceeding was fundamentally unfair or unreliable." Therefore, a court analyzing the prejudice prong should not "set aside a conviction or sentence solely because the outcome would have been different but for counsel's error." See Williams v. Taylor, Nos. 98-14, 98-16, 1998 WL 883336 (4th Cir. Va. Dec. 18, 1998) (quoting Lockhart, at 369-70).
A review of the plea transcript reveals that at the beginning of the proceedings, the Solicitor called out each indictment before the court and stated that it had either been "true billed" or there was a waiver of presentment to the Grand Jury signed by petitioner, and a waiver of jurisdiction and direct indictment. (Trial Tr. 2-4). The plea judge asked petitioner's attorney, Mr. Wood, if he had explained to petitioner the charges, the possible punishments, his constitutional rights including a trial by jury, and his right of presentment of the Cherokee County charges to the Grand Jury of Cherokee County. Mr. Wood responded "yes sir." (Trial Tr. 4-5). The Court also questioned Mr. Wood as to whether or not he had explained to petitioner that he had a right to have the cases from Cherokee County heard there, either by trial or by a guilty plea. Mr. Wood responded that he had explained this to petitioner and that petitioner wished to waive jurisdiction and have his Cherokee County cases heard there in Spartanburg. Plea counsel also informed the court that it was his opinion that petitioner understood each and every thing that counsel had discussed with him and that petitioner wished to plead guilty. Counsel also informed the court that they had agreed to work out a plea agreement and present all charges including Cherokee County at the same time in order to avoid the two strikes.
The plea judge questioned petitioner as follows:
Court: Now, you understand that, and Mr. Wood tells me, that several of these cases are from Cherokee County. Phillips: Yes, sir. Court: And you certainly have the right to have those cases heard or tried in Cherokee County. Is it my understanding that you desire for those cases to be heard here along with the Spartanburg County cases? Phillips: Yes, sir. Court: And you wish to waive the jurisdiction of Cherokee County and appear here in Spartanburg and dispose of all these cases — Phillips: Yes, sir. Court: — today? Phillips: Yes, sir. . . . Court: And have you taken any drugs, medication, or alcohol in the last twenty-four hours? Phillips: No, sir. Court: You're sober today? Phillips: Yes, sir. Court: Now, Mr. Wood tells me that he has explained to you the charges contained herein and the possible punishment and your Constitutional rights and that you understand these things. Is that correct? Phillips: Yes, sir. (Tr. 7-9).The plea judge also questioned petitioner as follows:
Court: These Cherokee County cases have not yet been before the Cherokee County Grand Jury for it's consideration. After hearing the evidence, at least twelve of the eighteen members of that Grand jury would have to agree you were probably guilty of these charges before true bills would be reported and returned to this Court and the cases ready for trial. Of course, the Grand Jury might return a no bill. That would mean the case might be dismissed or presented at a later date. Do you understand that process of presentment of these Cherokee County charges to the Cherokee County Grand Jury? Phillips: Yes, sir. Court: And do you wish to waive or give up that right of presentment? Phillips: Yes, sir. (Trial Tr. 14-15).Petitioner then pleaded guilty to the charges and was sentenced by the court.
A review of the PCR transcript reveals the PCR judge concluded the following with regard to the ineffective assistance of counsel issue:
Second, this Court finds that the Applicant's waiver of presentment was proper and counsel was not ineffective. This Court finds that the guilty plea transcript reflects that Judge Clary knew the indictments were not true-billed and informed the Applicant of his right to have the indictments represented to the Cherokee County Grand Jury. The record further shows that the Applicant told Judge Clary that he understood this right and wished to waive presentment. Moreover, this Court finds that the Applicant also executed a valid written waiver of presentment by signing the sentencing sheets where the waiver of presentment box was checked. See State v. Smalls, ___ S.E.2d ___, 204 WL 3343567 (2005) (finding that signing the sentencing sheet for a charge to which a defendant has pleaded guilty constitutes a written waiver of presentment). Accordingly, this Court finds that the waiver of presentment was valid.
Therefore, this Court finds that the Applicant failed to carry his burden to show that counsel's representation fell below the standard of professional reasonableness for a criminal defense attorney in this regard. Strickland v. Washington; Cherry v. State. Moreover, the Applicant failed to prove that there is a reasonable probability that, but for counsel's alleged errors, he would not have pled guilty and would have insisted on going to trial. Roscoe v. State. Since the Applicant failed to carry his burden to show deficiency and prejudice, the allegation of ineffective assistance of counsel is also denied and dismissed with prejudice.
(Tr. 66-67).
The undersigned concludes that the record supports the state PCR court's holding and it is not contrary to clearly established federal law or an unreasonable determination of the facts in light of the evidence in the state court proceedings. Trial counsel informed petitioner of his right to have the indictments presented to the Cherokee County Grand Jury and explained a waiver of presentment to him. Further, the transcript as set out above reveals that the plea judge knew the indictments were not true-billed and also informed petitioner of his right to have the indictments presented to the Cherokee County Grand Jury. Even assuming, arguendo, that petitioner's counsel was found to be ineffective with respect to these issues, petitioner has not shown prejudice. Petitioner failed to show that he would not have pleaded guilty and would have insisted on going to trial. Petitioner entered into a plea agreement that by allowing the Cherokee County cases to be resolved in Spartanburg County, the State agreed to allow the cases from both counties to be handled together so that petitioner would avoid a sentence under the "two strikes" law. (Plea Tr. 22). Therefore, it is recommended that this issue be dismissed and respondent's motion for summary judgment granted.
VI. CONCLUSION
Based on the foregoing, it is recommended that respondent's motion for summary judgment (document #9) be GRANTED and petitioner's petition for Writ of Habeas Corpus should be denied, and this Petition dismissed.