Opinion
2:21-cv-3457-RMG-MGB
01-23-2023
Mike Tyrel Salley, Petitioner, v. Warden Wallace, KCI, Respondent.
REPORT & RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
Mike Tyrel Salley, a state prisoner, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1, 8, 33.) This matter is before the Court on the Warden's Motion for Summary Judgment. (Dkt. No. 37.) Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to rule on any pretrial motions and to make recommendations to the District Judge on the summary judgment motion.
For the reasons set forth below, the undersigned recommends the Warden's motion for summary judgment be granted, and the petition be dismissed with prejudice.
BACKGROUND
In May 2009, an Aiken County Grand Jury indicted Salley for assault with intent to commit criminal sexual conduct with a minor, first degree. (Dkt. No. 21-1 at 106-07.) On February 8, 2010, a Blair hearing was held before the Honorable R. Ferrell Cothran, Jr., to determine whether Salley was competent to stand trial. (Dkt. No. 21-1 at 3-69.) Salley was represented by Wallis Alves, Esq. (“plea counsel”). (Id. at 3.)
During the Blair hearing, Dr. Phillip T. Cornelius, a retired psychologist, who worked as a forensic consultant for the South Carolina Department of Disabilities and Special Needs, testified regarding Salley's competency. (Id. at 6-38.) Dr. Cornelius testified that Petitioner was mentally retarded, with an IQ that had ranged from the low 40s to high 50s on different tests over time. (Id. at 14.) Nevertheless, Dr. Cornelius found Salley was competent based on his understanding of the legal system and his ability to learn. (Id. at 14-16.) Dr. Donna Schwartz-Watts, a professor of clinical psychiatry who had previously worked at the South Carolina Department of Mental Health, testified as an expert in forensic evaluations and gave her opinion as to Salley's competency, as well. (Id. at 39-41.) Dr. Schwartz-Watts testified that Salley had a factual understanding of some of the criminal proceedings against him; however, she did not believe Salley had the cognitive abilities to follow a trial. (Id. at 43.) Dr. Schwartz-Watts testified Salley was not rationally competent in her opinion. (Id. at 43-45.)
After hearing the testimony by Dr. Cornelius and Dr. Schwartz-Watts, Judge Cothran took the matter under advisement. (Id. at 69.) Court resumed on February 11, 2010, and Judge Cothran announced that based on his review of the evidence, Salley was competent to stand trial. (Id. at 69-79.)
The parties returned to court the following day, at which time Salley pled guilty but mentally ill to the charge against him. (Id. at 79-85.) During the plea colloquy, the prosecutor summarized Salley's crime as follows:
In August of 2008, the Wagener Police Department received a report from the victim's great aunt [T]he victim who was 10 years old had disclosed that she had been sexually assaulted by Mike Salley who was a family friend.
The victim had a forensic interview done at the Child Advocacy Center in Columbia, the ARC, and disclosed that Mr. Salley had tried to penetrate her anally with his penis and that it hurt. She stated that it happened at her home and he was a family friend of her mother and stepfather, or mother's boyfriend that lived in the home with her in Wagener. And that he had molested her at least five times starting around July 10th of 2008 and continuing up until that date which was August 27th of 2008.
Mr. Salley was interviewed by the Wagener Police Department and initially denied doing this, but eventually came back with his mother present and confessed to this incident as well as another, later, with a different child. But he is pleading only on this particular charge.(Id. at 83-84.) Salley agreed to those facts. (Id. at 85.) The prosecutor further noted that Dr. Schwartz-Watts had testified that Salley was moderately mentally retarded, and his only known mental illness was pedophilia, and for that reason, the State had agreed that Salley could plead guilty but mentally ill so that he would get treatment as a sex offender while incarcerated. (Id. at 84.) Judge Cothran sentenced Petitioner to twenty-five years incarceration and sex offender treatment pursuant to the negotiated plea. (Id. at 89.)
Salley appealed Judge Cothran's finding that he was competent to stand trial. He was represented by Kathrine H. Hudgins, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. (See Dkt. No. 21-2 at 3-4.) On February 22, 2012, the South Carolina Court of Appeals affirmed Salley's conviction and sentence in an unpublished per curiam opinion. (Id.) Salley's petition for rehearing was denied. (Dkt. No. 21-2 at 5-13, 26.) Salley then petitioned for a writ of certiorari in the South Carolina Supreme Court. The court initially granted certiorari, and the following issue was briefed by the parties:
Did the Court of Appeals err in finding that the trial judge did not err in finding that appellant was competent to stand trial when appellant proved, by a preponderance of the evidence, that he did not have a rational or factual understanding of the proceedings against him and that he did not have the ability to consult with his lawyer with a reasonable degree of rational understanding?(Dkt. No. 21-6 at 4.) The court later dismissed the petition as improvidently granted. (Dkt. No. 21-8.) The remittitur issued on July 7, 2014. (Dkt. No. 21-9.)
On December 31, 2014, Salley filed an application for post-conviction relief (“PCR”) in state court, alleging ineffective assistance of counsel and due process violations. (Dkt. No. 2110.) On January 21, 2016, the Honorable Diane S. Goodstein, held an evidentiary hearing where Salley was represented by Aimee Zmroczek, Esq. (“PCR counsel”).(See Dkt. No. 21-12.) Salley and plea counsel testified. (Id.) In an order filed March 21, 2016, the PCR court denied and dismissed Salley's PCR application. (Id.) Salley did not appeal.
The transcript of the PCR evidentiary hearing has not been provided to the Court as part of the state court record. (See Dkt. No. 21-1 through 21-18.) Respondent maintains that he cannot obtain the transcript of the January 21, 2016 hearing because “court reporters are not required to retain records after five years.” (Dkt. No. 43.)
On January 11, 2019, Salley filed a second PCR application, in which he alleged that his guilty plea was conditional and was not knowingly, intelligently, or understandingly made. (Dkt. No. 21-14 at 3.) Petitioner additionally alleged that his sentence exceeded the statutory-authorized amount. (Id.) The State filed a return and motion to dismiss, arguing Salley's application was untimely and successive. (Dkt. No. 21-15.) The Honorable Clifton Newman issued a conditional order of dismissal on June 7, 2021. (Dkt. No. 21-16.) Salley filed pro se objections to the order (Dkt. No. 21-17), but the order of dismissal was made final on September 10, 2021 (Dkt. No. 21-18).
PROCEDURAL HISTORY
Salley filed his pro se habeas petition on October 18, 2021, and he subsequently filed an amended petition. (Dkt. Nos. 1, 8.) The grounds set forth in the two petitions are the same. (Dkt. No. 1 at 9-18; Dkt. No. 8-1 at 1-10.) On March 25, 2022, the Warden filed a return and motion for summary judgment. (Dkt. Nos. 21, 22.) Salley filed a response in opposition to the motion for summary judgment on April 22, 2022. (Dkt. No. 18.) On April 27, 2022, the Warden filed a reply. (Dkt. No. 26.) After reviewing the filings, the undersigned found the petition was not timely, but there was a potential for equitable tolling based on Salley's intellectual disability. (Dkt. No. 27.) The undersigned appointed counsel to represent Salley and directed counsel to file an amended petition. (Dkt. Nos. 29, 31.)
An amended petition was filed by counsel on August 23, 2022. (Dkt. No. 33.) In the amended petition, Salley largely adopted his previously-raised grounds for relief:
Ground One: “The PCR Counsel abandoned Applicant now Petitioner.” (Dkt. No. 8-1, p. 1).
Ground Two: “The Court of Appeals erred in finding that the trial judge did not err in finding that Appellant was competent to stand trial when appellant proved, by a preponderance of the evidence, that he did not have a rational understanding of the proceedings against him and that he did not have the ability to consult with his lawyer with a reasonable degree of rational understanding.” (Dkt. No. 8-1, p. 5).
Ground Three: “Trial counsel failed to accurately define sexual battery.” (Dkt. No. 8-1, p. 7).
Ground Four: “The Petitioner has been charged with false charges.” (Dkt. No. 81, p. 8).(Dkt. No. 33 at 8-9.) On September 22, 2022, the Warden filed a return and motion for summary judgment. (Dkt. Nos. 36, 37.) Thereafter, Salley filed a response, and the Warden filed a reply. (Dkt. Nos. 40, 41.)
The motion is ripe for habeas review.
LEGAL STANDARD
Habeas corpus in federal court exists to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation and internal quotation marks omitted). Federal habeas is neither an alternative to state-court relief nor an additional chance to appeal erroneous state-court rulings. See id. That preference for, and deference to, state courts is borne out in the various constraints placed on federal courts. See Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (stating § 2254 “imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases”); see also Woods v. Donald, 575 U.S. 312, 316 (2015) (stating § 2254 “reflect[s] a presumption that state courts know and follow the law” (citation and internal quotation marks omitted)).
For instance, state prisoners who challenge matters “adjudicated on the merits in State court” cannot get relief in federal court unless they show that the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law” announced by the Supreme Court or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d). That means a state court's ruling must be “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. Federal courts must also defer to state courts' factual determinations, which are presumed correct until the prisoner rebuts that presumption with clear and convincing evidence. § 2254(e)(1).
In addition, before state prisoners may try to clear those high hurdles, two rules steer them to first pursue all relief available in the state courts. See § 2254(b)(1). The first, known as exhaustion of remedies, requires a prisoner to present his claims to the highest state court with jurisdiction to decide them. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). A federal court cannot grant a prisoner's habeas corpus petition until he exhausts his state-court remedies. § 2254(b)(1), (c). The second rule, called procedural default, comes into play when a prisoner failed to present a claim to the state courts at the appropriate time and has no means of doing so now. Stewart, 701 F.Supp.2d at 790. Federal courts may not consider a procedurally defaulted claim unless the prisoner shows either that he has cause for defaulting and that the alleged violation of federal law prejudiced him or that not addressing the claim would be a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The ultimate issue in this case is, of course, whether Salley should receive habeas relief under these standards. However, the Warden's summary judgment motion and briefing presents narrower questions. Summary judgment is appropriate only if the moving party shows that “there is no genuine dispute as to any material fact” and that he is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Rule 12, Rules Governing § 2254 Cases (stating courts may apply in habeas cases any of the Federal Rules of Civil Procedure to the extent they are not inconsistent with statutes or the § 2254 rules). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Viewing the habeas rules through the lens of Rule 56, the Court has three questions to answer at this juncture:
(1) Are there genuine issues of fact as to whether Salley's claims are properly before the Court?
(2) Are there genuine issues of fact as to the merits of Salley's claims?
(3) If the answer to either (or both) of the first two questions is “no,” is the Warden entitled to judgment as a matter of law?
In answering those questions, the undersigned must carefully consider the record before the Court.
DISCUSSION
The Warden contends that Salley's habeas petition must be dismissed as untimely. (Dkt. No. 36 at 32-35.) However, in the alternative, the Warden asserts Salley is not entitled to habeas relief because his grounds are either not cognizable, procedurally defaulted, or without merit. (Id. at 35-64.) Salley disagrees and asserts he is entitled to equitable tolling of the statute of limitations due to his intellectual limitations. (Dkt. No. 33 at 12-15.) He also asserts further evidentiary development is needed as to Grounds One, Three, and Four, and the state court erred in finding him competent to stand trial. (Id. at 16-19.) The undersigned addresses all of these arguments below.
I. Statute of Limitations
Petitioners seeking habeas under § 2254 have a one-year window to file their petitions. 28 U.S.C. § 2244(d). With the exception of several circumstances not present here, see § 2244(d)(1)(B)-(D), that window opens when the judgment being challenged becomes final, either through “the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). In this case, the Warden submits that was September 17, 2014-ninety days after Salley's petition for writ of certiorari was dismissed as improvidently granted.
Once the limitations period starts, it is tolled while a “properly filed” PCR application challenging the judgment at issue is pending in state court. § 2244(d)(2). In South Carolina, a PCR application is filed when the clerk of court receives it. Gary v. State, 557 S.E.2d 662, 663 (S.C. 2001). Here, that happened on December 31, 2014. (Dkt. No. 21-10 at 1.) At that point, approximately one hundred and eight days had passed since Salley's limitations period began, leaving him about two hundred and fifty-seven days to file after the PCR case was over.
Because Salley did not file a PCR appeal, the Warden offers that the clock for his statute of limitations started running again the day after his PCR application was dismissed on March 22, 2016. Salley filed a second PCR action on January 11, 2019, but the Warden contends that was not a “properly filed” PCR application for purposes of § 2244 because it was untimely and successive under state law. Further, the statute of limitations had already run on December 5, 2016. The Warden asserts that Salley did not file his federal habeas petition until five years after the statute of limitations had expired.
Salley does not disagree that his petition is untimely. However, he asserts that he is entitled to equitable tolling due to his intellectual disability. As this Court has recognized,
At the time of Salley's Blair hearing and guilty plea, the terminology for his mental condition was “mental retardation.” However, the medical community has since switched to using “intellectual disability” for the same condition. See Hall v. Florida, 572 U.S. 701, 704-05 (2014) (noting the Court previously used “mental retardation” but was switching to “intellectual disability” in accordance with texts in the medical community).
The Supreme Court has held that the statute of limitations for habeas petitions “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). The limitations period should be equitably tolled “only if [the petitioner] shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 2562.... “In order to establish equitable tolling due to mental impairment, a petitioner must make a threshold showing of incompetence and also demonstrate that such incompetence affected his ability to file a timely habeas petition.” Griffin v. Ransom, C. A. No. 5:16-HC-2149-FL, 2017 WL 1628883, at *4 (E.D. N.C. Apr. 28, 2017) (citation omitted).Williams v. Bush, No. 6:17-735-RMG, 2018 WL 259785, at *2 (D.S.C. Jan. 2, 2018). Indeed, mental impairments, such as Salley's intellectual disability, may warrant equitable tolling. See United States v. Sosa, 364 F.3d 507, 513 (4th Cir. 2004) (“As a general matter, the federal courts will apply equitable tolling because of a petitioner's mental condition only in cases of profound mental incapacity.”); see also Hunter v. Ferrell, 587 F.3d 1304, 1308-10 (11th Cir. 2009) (vacating a district court's dismissal of a petition for being time-barred and remanding for further factual development where there was a question of whether a causal connection existed between a petitioner's mental impairment and his ability to timely file his § 2254 petition where petitioner had significant and irreversible mental retardation and had received help from other prisoners in filing his petition); Grant v. McDonnell Douglas, Corp., 163 F.3d 1136, 1138 (9th Cir. 1998) (finding equitable tolling based on mental condition to be appropriate “only in exceptional cases, such as institutionalization or adjudged mental incompetence”).
Based on the record before this court, it is unclear if Salley's intellectual disability rises to the level of “profound mental incapacity” that warrants equitable tolling. As pointed out by the Warden, Salley was able to timely file his first pro se PCR application in state court, and his counseled, amended petition adopts the same claims Salley raised in his pro se habeas petition. (Dkt. No. 36 at 35.) Although there are no evaluations demonstrating Salley was incompetent at the time his federal habeas petition should have been timely filed, the record demonstrates Salley is mentally disabled, with an IQ somewhere between the low 40s to the high 50s, and he has been deemed incompetent by experts in the past, despite having been found competent to plead guilty to assault with intent to commit criminal sexual conduct with a minor. Viewing the facts in the light most favorable to Salley,the undersigned concludes there is a genuine issue of material fact as to whether the statute of limitations should be equitably tolled. Accordingly, the undersigned recommends the motion for summary judgment be denied as to the timeliness argument.
In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).
II. Ground One
In Ground One, Salley asserts he was abandoned by PCR counsel. While Ground One may establish cause for Salley's procedural default of his other grounds, it does not provide an independent ground for relief. Indeed, a claim for ineffective assistance of PCR counsel is not a cognizable ground for relief under 28 U.S.C. § 2254. 28 U.S.C. §2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”); see, e.g., Neumon v. Cartledge, No. 8:14-CV-2556-RMG, 2015 WL 4607732, at *1 (D.S.C. July 31, 2015) (noting that “ineffective assistance by PCR counsel cannot be a ground for relief under § 2254”); Portee v. Stevenson, No. 8:15-CV-487-PMD-JDA, 2016 WL 690871, at *3 (D.S.C. Feb. 22, 2016) (same); Bryant v. State of Md., 848 F.2d 492, 493 (4th Cir. 1988) (same). Salley contends there is a genuine issue of material fact, and this ground warrants further factual development. (Dkt. No. 33 at 16-17.) However, regardless of the facts, the law dictates that Salley cannot be granted habeas relief based on his claim that PCR counsel was ineffective. As such, the undersigned recommends the Warden's motion for summary be granted as to Ground One.
III. Ground Two
In Ground Two, Salley argues the court of appeals erred in affirming the plea court's finding that he was competent to stand trial. (Dkt. No. 33 at 17-18.) In particular, Salley argues:
In light of the evidence presented at Petitioner's Blair hearing, Petitioner respectfully submits that the state court's determination that he was competent to stand trial, despite evidence that he could not read, had an IQ in the 40's or 50's, had extreme difficulty learning new information, struggled to understand categories, failed at tasks like drawing simple shapes and telling time, and failed to answer simple questions about history and geography, was clearly contrary to the Dusky standard. Moreover, the state court's factual finding that Petitioner was competent was clearly unreasonable based on the same evidence.(Id. at 18.) The Warden argues the plea court's finding that Salley was competent to stand trial is supported by the record and is consistent with federal law, as decided by the United States Supreme Court. (Dkt. No. 36 at 49-62.)
A. Competency Standard
The United States Supreme Court has described its competency standard as follows:
The two cases that set forth the Constitution's “mental competence” standard, Dusky v. United States, 362 U.S. 402 (1960) (per curiam), and Drope v. Missouri, 420 U.S. 162 (1975), specify that the Constitution does not permit trial of an individual who lacks “mental competency.” Dusky defines the competency standard as including both (1) “whether” the defendant has “a rational as well as factual understanding of the proceedings against him” and (2) whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” 362 U.S. at 402 (emphasis added; internal quotation marks omitted). Drope repeats that standard, stating that it “has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” 420 U.S. at 171 (emphasis added).Indiana v. Edwards, 554 U.S. 164, 169-70 (2008).
B. Blair Hearing
1. Dr. Cornelius's Opinion
As previously referenced, during the Blair hearing, Dr. Cornelius, who was qualified as an expert in forensic psychological evaluations, testified regarding Salley's competency. (Dkt. No. 21-1 at 6-38.) Dr. Cornelius had evaluated Salley's competency on three separate occasions-once in May 2004, once in 2007, and once in 2009. (Id. at 11.) All of the evaluations were related to different charges against Salley for criminal sexual conduct. (Id.) Dr. Cornelius opined that Salley was competent. (Id. at 12.) When asked what information Dr. Cornelius obtained during his hour-long meeting with Salley that led him to conclude Salley was competent, Dr. Cornelius explained as follows:
Well, the competency part of the evaluation is, I talked with him about the role of his attorney, the role of the solicitor, to ascertain if he recognizes that his attorney's on his side, that the solicitor's not on his side.
We also talked to him about the court process and who makes the decision about whether he's guilty or not guilty.
I also asked his-part of the rational part of it is if he was approached by the solicitor when he was by himself would he talk to the solicitor or not. If he answers that correctly we attempt to get a reason out of him . . . that he would not talk to the solicitor by himself.(Id. at 12-13.) According to Dr. Cornelius, Salley indicated he would not talk to the solicitor by himself “because the solicitor's against him and not on his side.” (Id. at 13.) Salley also understood the defense attorney's role-“[h]e was able to say that his attorney is on his side, wants him to be able to go home and be found not guilty.” (Id.)
Dr. Cornelius testified Salley was “classified as mentally retarded.” (Id. at 14.) According to Dr. Cornelius, Salley's IQ “varied over a period of time from 59 on the Stanford-Binet, a 42 on the Wechsler for Children, a 48 on the Wechsler, a 54 on the Universal Nonverbal Intelligence Scale. In the 50's; moderate to mild.” (Id.) Dr. Cornelius testified that, in his opinion, Salley was able to learn. (Id.) When Dr. Cornelius had previously evaluated Salley in 2004 at the age of fourteen, Salley did not understand the roles of the attorneys or the court process. (Id. at 14-15.) Dr. Cornelius found Salley not competent at that time. (Id. at 15-16.) However, in 2007, when Salley was seventeen, Salley demonstrated a better understanding of the court process although “[h]e had some confusion over the difference between the roles of his attorney and the solicitor.” (Id. at 15.) They also did some education during the 2007 interview, and “[w]hen [Salley] came back in 2009 . . . [,] he had retained that information because he was able to, without any education, enumerate his attorney's role, the solicitor's role, the court process, and whether or not he should talk to the solicitor by himself.” (Id.) Dr. Cornelius opined Salley was competent at the ages of seventeen and eighteen. (Id. at 16.)
Dr. Cornelius testified that he asked Salley several times over the course of his interview what he would do if he did not know the answer to something in the legal process, and Salley consistently answered that he would talk to his attorney. (Id.) Salley was alert and oriented throughout all of his evaluations. (Id. at 16-17.) Dr. Cornelius testified Salley was able to describe the charges against him and the potential sentence he faced. (Id. at 17-18.)
On cross-examination, Dr. Cornelius testified the criteria for being competent was “[t]hat he understands the adversarial nature of the Court process, and factual and rational basis and that he was the ability to assist his attorney in preparing his defense.” (Id. at 19.) Dr. Cornelius explained that his evaluation was based on a structured, forced-choice interview-that is, asking a question with two answers instead of open-ended questions. (Id. at 20-21.) When asked if Salley would always pick the “obvious answer” in a forced-choice situation, Dr. Cornelius responded, “Not necessarily. In 2004 he didn't.” (Id. at 21-22.) Dr. Cornelius also testified that Salley displayed some understanding about the legal process in 2004, “but it took numerous attempts to get him to [answer properly] during the 2004 evaluation.” (Id. at 23.) Dr. Cornelius indicated Salley knew he was in Columbia, South Carolina for the evaluation, but he could not name any other states. (Id. at 26.) He could recall three objects after an intervening task, and he could tell time on an analog watch. (Id.) When Dr. Cornelius was asked if Salley could answer an open-ended question in a court proceeding, Dr. Cornelius indicated he did not know, explaining, “It wasn't part of our interviews, it's not part of what we're asked to determine.” (Id. at 32.) When asked if it was possible to determine whether Salley was just repeating the answers to questions that had been asked multiple times or if Salley actually understood the answers he was giving, Dr. Cornelius responded, “I don't know the answer to that. He answered the questions correctly in the appropriate context.” (Id. at 32-33.)
Dr. Cornelius testified that Salley had difficulty understanding what benefit the solicitor got from a plea bargain, but he understood that it benefitted him. (Id. at 35-36.) Dr. Cornelius testified that his agency did not normally perform IQ tests as part of mental status examinations. (Id. at 37.) Additionally, generally, a person's IQ would be stable once they reached the age of majority although drinking could affect someone's IQ. (Id. at 37-38.)
2. Dr. Schwartz-Watts's Opinion
Dr. Schwartz-Watts was also qualified as an expert in forensic evaluations and gave her opinion as to Salley's competency. (Id. at 39-41.) Dr. Schwartz-Watts testified as follows:
It's my opinion, Your Honor, he clearly has a factual understanding of some of the proceedings. I agree with Dr. Cornelius. He clearly knows the prosecution is against him. He appreciates the adversarial nature of these proceedings.
The problem is even factually he always thinks that you're against him. He says the judge is against him because the judge has to pass sentencing. So he's got a little bit of confusion factually there which probably he could be educated on to change.
The issue I have is he is what I call not rationally competent. And what I mean by that is he doesn't have the cognitive abilities to follow a trial. Dr. Cornelius stated it took three years for him to learn the roles of the court officials and to gather information. And I don't think most trials take three years.
And so what we're asking him to do in a trial situation is to learn new information, be able to remember it, be able to provide it back to his attorney to assist in his defense. He just does not have the cognitive ability to do that.
If you look at his evaluation back in 2004, his mental status examination is exactly the same as it is now. He . . . doesn't have any new cognitive skills. They're the same. He still can't do math. He still can't remember things.
And examples of rational competency, you have to be more than just self-protective. He's very self-protective. He would not talk with the solicitor without his attorney present. He understands that.
But, for example, I asked him today, if your lawyer wants you to take the stand and she tells you to tell the truth, what are you going to do. And he says he wouldn't tell the truth. So he's not able to assist her at some levels because of some of his cognitive appearance. He does not fully understand what it takes to be competent to stand trial.
And those are the concerns I have. He would assist his attorney. He's protective. He doesn't want to go to prison. He's got some confusion about, he can't-some of his forced choice tests, he's not able to pick the right answer. For example, I asked him, do you want a 24-month sentence or a three year. And he said a three year because it's less time. The number three is smaller, but that's an example of how his brain works.
And so he doesn't have the ability to learn new information. So if, for example, during trial if there's some evidence presented and he doesn't know it, he doesn't have the ability to assist his attorney. He probably doesn't even understand what it is.
But . . . he does have a rudimentary factual understanding of the proceedings.(Id. at 43-45.)
Dr. Schwartz-Watts opined Salley would not be able to process information during court proceedings and assist his attorney, emphasizing that “court is not a forced choice test.” (Id. at 45.) She testified Salley's IQ had not changed much since he was 14, or, if it had, it was lower due to all the drinking he had done in the intervening time. (Id. at 46.) Dr. Schwartz-Watts testified it would be good to have neuropsychological testing done to better understand Salley's brain function since he had been drinking so much. (Id. at 47.) Dr. Schwartz-Watts indicated Salley showed perseveration, which “means that each time you're faced with a problem or something that requires you to think, your brain uses the same exact strategy to retrieve that information. And that's a sign of pathology. That's a sign of cognitive impairment.” (Id. at 49.) According to Dr. Schwartz-Watts, Salley would not be able to testify because his IQ was so low he could be easily tricked. (Id. at 49-50.) Dr. Schwartz-Watts further testified Salley had difficulties with abstract similarities. (Id. at 51-52.) He also could not read. (Id. at 52-53.)
On cross-examination, Dr. Schwartz-Watts indicated that not all intellectually disabled people were incompetent to stand trial. (Id. at 55.) She stated, “in the 60s there's been plenty of people that in my opinion have been competent. It's not real common in the high 40s and low 50s.” (Id.) Dr. Schwartz-Watts agreed Salley understood the way a court works and, generally, who was for and against him in the process. (Id. at 60-62.) Dr. Schwartz-Watts testified that Salley admitted he was guilty to her. (Id. at 62-63.) Dr. Schwartz-Watts again testified Salley had “a factual understanding of the proceedings” and the “capacity to assist in his defense, “but . . . because he doesn't have a rational understanding of the proceedings, he's not able to assist his attorney.” (Id. at 64-65.) Dr. Schwartz-Watts indicated she did not expect all defendants to fully understand every concept and advise their attorneys on how to proceed, but her concern was that Salley, in particular, did not understand what he did not know and would not know to ask for help. (Id. at 65-66.)
3. Competency Ruling
Three days after the Blair hearing, Judge Cothran convened another hearing and issued his ruling from the bench. (Id. at 69-79.) Judge Cothran stated he had reviewed the case law and the reports-including the 2004, 2007, and 2009 evaluations of Dr. Cornelius and the evaluation by Dr. Schwartz-Watts-and based on his review, Judge Cothran found Salley competent to stand trial. (Id. at 69-71.) Judge Cothran indicated he was persuaded by the progress Salley had shown from the 2004 to the 2009 evaluations. (Id. at 69-71.) Judge Cothran noted Dr. Cornelius had found Salley competent by 2009 “because he did seem to understand the process going on. And he seemed to, in his opinion, have the ability to consult with the attorney to a reasonable degree of rational understanding.” (Id. at 70.) As to Dr. Schwartz-Watts's testimony, Judge Cothran stated,
Dr. Schwartz-Watts' opinion, she basically had the same finding but she has some concerns that she didn't-she did not think he had the ability to process the information quick enough on cross-examination, that withstood crossexamination.
And I don't think that's the test in this state. And I certainly think that being able to assist his attorney, and Dr. Cornelius found that he would be able to recognize if someone was not telling the truth and advise his attorney to that effect.
In the end that he even told Dr. Schwartz-Watts that he were to lie, even if his attorney told him to tell the truth, if he thought it would benefit him. So think he has that understanding of the proceedings.
And the defense has to present evidence that he in fact does not have the ability and is not competent to stand trial. I think that that evidence must be by the preponderance of the evidence.
And I certainly don't find by the preponderance of the evidence that they have met their burden and I think he is competent to stand trial.(Id. at 70-71.) When asked for some clarification by plea counsel, Judge Cothran stated, “I don't think the standard is that he can't get through cross-examination or he can't process information fast enough on cross-examination. I just don't think that's the standard.” (Id. at 72.)
Plea counsel then argued Dr. Schwartz-Watts had testified about more than just Salley's ability to be cross-examined-“[s]he also talked about his ability to process information during the trial and lean over and discuss that with his attorney.” (Id.) Plea counsel reiterated that Dr. Schwartz-Watts was particularly concerned about Salley's inability to process information adequately and quickly at trial to be able to rationally assist his attorney. (Id. at 73.) Plea counsel argued that Salley did not meet the standard outlined in Dusky. (Id. at 73-74.) Plea counsel then pointed out the similarities between Dr. Cornelius's evaluations of Salley in 2004, 2007, and 2009, noting that the behavioral observations and mental status examinations were very similar, except that later Salley could repeat information that he had been taught. (Id. at 74-75.) Plea counsel argued that the defense's burden to demonstrate incompetency by a preponderance of the evidence had been met, and the burden had now shifted to the State to prove competency. (Id. at 75-76.)
Judge Cothran disagreed that the burden had shifted to the State. (Id. at 77.) Judge Cothran then further explained his findings,
[T]he fact that in the 2004 evaluation Dr. Cornelius found that he wasn't competent because he didn't have any understanding of the court process at that time or the roles of the parties and that he could not answer the questions appropriately. But he also testified in court that it was not that he could not learn, that he was a slow learner.
In between 2004 and 2007 and 2009 he in fact had learned a good bit about the court process. He understood the role of the jury. He understood that the jury was the one to find him guilty, the 12 folks.
He understood based on his finding the prosecutor's role and the prosecutor was against him. He should not talk to the prosecutor alone without notifying his attorney. That he was able to identify witnesses on the stand and knew if he felt they were lying to tell his public defender.
And I think that this evaluation goes far more than simply in the [Dusky] case that you talked about, that the Court just simply finding someone was oriented to time and place and knew the date and where they were.
This evaluation goes far beyond that. Certainly somebody can understand time and place and where they were and not necessarily understand the court proceedings against him, the roles of the different parties, the roles of the judge and jury.
And the fact that Dr. Cornelius found him competent in 2007 when he didn't in 2004 strengthens that evaluation in my opinion, because you don't have two different doctors with two different opinions. And clearly if Dr. Cornelius did not feel that he was competent in 2007, he would have found so because he didn't find him competent-and based on, I understand that you were saying it's many of the same questions and criteria but he couldn't answer them in 2004 but he had learned.
And the fact that he says that he could understand when a witness was on the stand and if they were lying to tell the attorney, that's more than just simply repeating what you were told in a parrot-type response, that he had ability to understand that and he understood, and assist and rationally assist his attorney in the defense of his case.(Id. at 77-79.)
C. Direct Appeal
Salley appealed the plea court's competency determination, but his conviction and sentence were affirmed by the South Carolina Court of Appeals. (Dkt. No. 21-2 at 3-4.) The Court of Appeals found as follows:
Mike Tyrel Salley appeals his guilty plea to assault with intent to commit first-degree criminal sexual conduct with a minor, arguing the trial court erred in finding he was competent to stand trial. We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: Jeter v. State, 308 S.C. 230, 232, 417 S.E.2d 594, 596 (1992) (“The test of competency to enter a plea is [that] . . . [t]he accused must have sufficient capability to consult with his lawyer with a reasonable degree of rational understanding and have a rational as well as factual understanding of the proceedings against him.”); State v. Weik, 356 S.C. 76, 81, 587 S.E.2d 683, 685 (2002) (“The defendant bears the burden of proving his lack of competence by a preponderance of the evidence, and the trial [court]'s ruling will be upheld on appeal if supported by the evidence and not against its preponderance.”).(Id. at 4.) The petition for rehearing was denied. (Id. at 26.)
The South Carolina Supreme Court initially granted the petition for writ of certiorari to review the court of appeals' opinion, but the writ was dismissed as improvidently granted following briefing and argument. (Dkt. Nos. 21-5, 21-8.)
D. PCR Proceedings
The issue of competency was also raised during the PCR proceedings as the PCR court considered whether plea counsel was ineffective for failing to adequately investigate Salley's competency. (Dkt. No. 21-12 at 5.) The PCR court found Salley's allegation that plea counsel had failed to investigate the issue of competency to be “meritless.” (Id.) In particular, the PCR court noted plea counsel had Salley evaluated by Dr. Schwartz-Watts, who found him not competent. (Id.) The PCR court found “nothing about Plea Counsel's representation was deficient” and further found Salley failed to demonstrate any prejudice. (Id.)
Salley did not appeal the PCR court's order.
E. Analysis
Salley asserts the plea court's competency determination was unreasonable in both law and fact. (Dkt. No. 33 at 18.) In particular, he argues “the state court's factual finding that Petitioner was competent was clearly unreasonable” where there was “evidence that he could not read, had an IQ in the 40's or 50's, had extreme difficulty learning new information, struggled to understand categories, failed at tasks like drawing simple shapes and telling time, and failed to answer simple questions about history and geography ....” (Id.)
As determined by the Supreme Court, competency is a factual issue. Thus, a state court's competency determination is entitled to a presumption of correctness under § 2254(e)(1). Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (“A state court's determinations on the merits of a factual issue are entitled to a presumption of correctness on federal habeas review.... We have held that a state court's conclusion regarding a defendant's competency is entitled to such a presumption.” (internal citations omitted)). A petitioner has the “burden of rebutting the presumption . . . by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Wilson v. Ozmint, 352 F.3d 847, 860 (4th Cir. 2003) (“These facts do not compel the credibility determination reached by the state court, but they certainly provide sufficient basis, for purposes of section 2254(d)(2), to support such a determination.”). Additionally, as set forth above, the plea court's ultimate determination that Salley was competent was based largely on credibility findings and the credit the court gave to Dr. Cornelius's opinion. The plea court's credibility and factual findings are entitled to deference here. See Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.”); 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.”). As detailed above, the plea court's findings are consistent with the record-Dr. Cornelius testified regarding Salley's understanding of the legal process and his ability to consult with and assist his attorney in his defense, and Dr. Schwartz-Watts agreed with some of that testimony. The two experts disagreed about whether Salley had the rational understanding to adequately assist his attorney during the course of the trial, but the plea court ultimately found Dr. Cornelius's opinion more persuasive, based, in part, on the progression Dr. Cornelius had noted from 2004 to 2009. Cf. Hammar v. Ryan, No. CV-15-01940-PHX-DLR, 2016 WL 1696790, at *10 (D. Ariz. Apr. 11, 2016) (showing deference to the state courts' factual determinations where “[t]he record reflect[ed] that the . . . trial and appellate courts were faced with conflicting evidence and the decision to credit the testimony of the court-appointed experts was not ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding'” (quoting 28 U.S.C. § 2254(d)(2))), adopted by 2016 WL 1660481. Salley has not identified any clear and convincing evidence to rebut the facts as found by the plea court. Indeed, the evidence Salley highlights was before the plea court and did not dissuade the plea court from finding Salley competent, particularly in light of Dr. Cornelius's testimony. The undersigned cannot say the PCR court's competency determination was unreasonable. See Brumfield v. Cain, 576 U.S. 305, 313-14 (2015) (noting federal courts “may not characterize these state-court factual determinations as unreasonable ‘merely because [we] would have reached a different conclusion in the first instance'” (quoting Wood v. Allen, 558 U.S. 290, 301 (2010))).
Salley further asserts that finding he was competent is “clearly contrary to the Dusky standard” in light of the “evidence he could not read, had an IQ in the 40's or 50's, had extreme difficulty learning new information, struggled to understand categories, failed at tasks like drawing simple shapes and telling time, and failed to answer simple questions about history and geography ....” (Dkt. No. 33 at 18.) However, Salley fails to identify any case law that the above characteristics, either alone or in combination, rendered him incompetent to stand trial under Dusky or other Supreme Court cases. As set forth above, Dusky requires a defendant have a rational as well as factual understanding of the proceedings against him and sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. The plea court referenced Dusky and applied it in finding Salley competent. While the characteristics Salley identifies could make it more difficult for him to understand the proceedings against him and consult with his attorney, Salley has failed to point to any case law where the Supreme Court has determined such characteristics prevented a defendant from being competent altogether. Cf. Atkins v. Virginia, 536 U.S. 304, 306 (2002) (“Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes.”); Smith v. Newsome, 876 F.2d 1461, 1465 (11th Cir. 1989) (“[A] person's being illiterate does not mean that the person lacks good sense. Nor does lack of formal education make a person mentally incompetent.”). Thus, Salley has failed to demonstrate the competency determination in his case was contrary to, or resulted from an unreasonable application of, federal law as determined by the Supreme Court.
The court of appeals cited state law that is based on the Dusky standard. See Jeter, 417 S.E.2d 594, 596 (S.C. 1992) (citing Carnes v. State, 271 S.E.2d 121 (S.C. 1980), which recites the competency standard from Dusky)).
For all of the above reasons, Salley has failed to meet his burden under § 2254. As such, the undersigned recommends the Warden's motion for summary judgment be granted as to Ground Two.
IV. Ground Three
In Ground Three, Salley alleges trial counsel failed to accurately define sexual battery.(Dkt. No. 33 at 8.) This ground was neither raised to nor ruled upon by the PCR court during Salley's PCR action. (See Dkt. Nos. 21-10, 21-12.) As such, the Warden argues it is procedurally defaulted here.
The counseled amended petition cites Salley's earlier pro se amended petition, and, there, Salley alleges plea counsel failed “to accurately define sexual battery to defendant . . . before the guilty plea hearing . . . .” (Dkt. No. 8-1 at 7.) However, Salley has not offered additional explanation or context for this ground in his counseled amended petition.
As set forth above, in order to properly preserve a claim for federal habeas review, a petitioner must have previously presented to the state courts the individual claim he wishes the federal court to review in the habeas action. If he has not properly presented the claim to a state court for adjudication, it is deemed procedurally defaulted. A claim is deemed procedurally defaulted if a state court has rejected it based on an independent and adequate state procedural rule. See Coleman v. Thompson, 501 U.S. 722, 729 (1991) (“The [independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.”). But also, “[i]f claims were not exhausted in state court but would now be procedurally barred if brought in state court, then federal courts can treat the claims as if they were procedurally defaulted in the state courts.” Clagett v. Angelone, 209 F.3d 370, 378 (4th Cir. 2000). Because Salley's Ground Three was not raised to and ruled upon by the PCR court and was not presented to the state appellate court, it is procedurally barred here.
Salley admits as much, but he argues the procedural default of Ground Three should be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), because PCR counsel was deficient in failing to raise meritorious claims. (Dkt. No. 33 at 18.) At the same time, he asserts “[t]he present record before this Court does not contain any evidence, testimony, or state court rulings on this issue, because it was not considered during Petitioner's state court proceedings.” (Id.) Thus, Salley requests the opportunity to conduct an evidentiary hearing to fully develop the record on this claim.
Pursuant to Martinez, “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9. To establish that PCR counsel provided ineffective assistance of counsel, a petitioner must show that: (1) his counsel's performance “fell below an objective standard of reasonableness”; and (2) he was prejudiced by his counsel's performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. To establish prejudice, a petitioner must demonstrate a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
In this case, Salley has failed to offer any evidence or point to anything in the record to overcome the presumption that PCR counsel provided reasonable professional assistance. Indeed, his claim that PCR counsel was deficient in failing to raise meritorious claims is wholly unsupported. As to the request to develop the claim, Salley fails to identify what authority permits the court to allow such further factual development. As the United States Supreme Court recently made clear in Shinn v. Ramirez, 142 S.Ct. 1718 (2022), unless a petitioner satisfies one of the narrow exceptions under § 2254(e)(2), then in accordance with that same subsection “a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence explanation or context for this ground in his counseled amended petition. beyond the state-court record based on ineffective assistance of state postconviction counsel.” Shinn, 142 S.Ct. at 1734. Salley has not articulated how an evidentiary hearing or further factual development is permitted in this case under § 2254(e)(2). Moreover, Salley offers only general complaints about PCR counsel's performance and plea counsel's performance, which are insufficient here. Thus, he has not met his burden under Martinez of demonstrating ineffective assistance of PCR counsel and a substantial claim of ineffective assistance of plea counsel.
Because Salley's Ground Three is procedurally barred, the undersigned recommends that the Warden's motion for summary judgment be granted as to this ground.
V. Ground Four
In Ground Four, Salley asserts he has been charged with false charges. (Dkt. No. 33 at 8.) “Specifically, Petitioner alleges that his offense conduct does not amount to Assault with Intent to Commit Criminal Sexual Conduct, as alleged in his indictment, but rather that his alleged conduct would constitute Lewd Act Upon a Child, a lesser offense (which was repealed by the legislature in 2012).” (Id. at 19.) The Warden argues this ground is procedurally barred as it is a direct appeal claim but was not raised at the time of his guilty plea and was waived. (Dkt. No. 36 at 64.) There was also no evidence in support of this ground during his PCR action. (Id.)
As with Ground Three, Salley has offered little explanation of this ground in his counseled amended petition. However, he cites his earlier pro se amended petition, where he argued the facts set forth in his arrest warrant were consistent with a lesser charge of lewd act upon a child, instead of sexual battery or criminal sexual conduct with a child. (Dkt. No. 8-1 at 8-10.)
Again, Salley concedes that claim is procedurally defaulted; however, he asserts the procedural default should be excused pursuant to Martinez, and he should be given an evidentiary hearing to further develop the record as to Ground Four. (Dkt. No. 33 at 19.) Unlike Ground Three, the underlying claim at issue in Ground Four is not a claim of ineffective assistance of plea counsel. Thus, Martinez is not applicable and cannot excuse the procedural instead of sexual battery or criminal sexual conduct with a child. (Dkt. No. 8-1 at 8-10.) default. See Martinez, 566 U.S. at 9 (describing the exception created as “a narrow” one where “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.”); see also Davila v. Davis, 137 S.Ct. 2058, 2067 (2017) (“declining to expand the Martinez exception to . . . ineffective assistance of appellate counsel”). Salley has failed to identify any other cause or procedural default for Ground Four. Accordingly, the procedural bar must stand.
For the above reasons, the undersigned finds Salley's Ground Four is procedurally defaulted and, thus, recommends granting the Warden's motion for summary judgment as to Ground Four.
VI. Request for an Evidentiary Hearing
Salley has requested an evidentiary hearing to further develop some of his habeas grounds and to gather and present additional evidence as to whether his intellectual disability entitled him to equitable tolling in this case. The undersigned finds an evidentiary hearing is not needed at this stage if the recommendations in this report are adopted. As explained above, Salley has failed to demonstrate that further factual development would lead to a different recommendation as to any of his grounds for relief. Moreover, he has failed to show that § 2254(e)(2) permits such a hearing in this case. And the undersigned found there was a genuine issue of material fact regarding the statute of limitations, so there is no recommendation that the petition be denied on that basis. Consequently, Salley's request for an evidentiary hearing is denied.
Certificate of Appealability
If the Warden's summary judgment motion is granted, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). The undersigned sees no reason to grant a certificate of appealability and would, therefore, recommend denying the certificate of appealability.
CONCLUSION
Salley's request for an evidentiary hearing is denied.
For the above reasons, the undersigned recommends the Warden's motion for summary judgment be granted and the petition be dismissed with prejudice. The undersigned further recommends the certificate of appealability be denied.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).