Opinion
Case No. 2:19-cv-2669-SAL-MGB
03-23-2020
Demetrius Smalls, #344584, Petitioner, v. Kenneth Nelson, Respondents.
REPORT AND RECOMMENDATION
Demetrius Smalls, a pro se state prisoner, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1.) The Warden has moved for summary judgment. (Dkt. No. 20.) 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 review the motion and submit a recommendation to the District Judge. For the following reasons, the undersigned recommends granting the Warden's motion and dismissing this case with prejudice.
BACKGROUND
On August 20, 2009, Smalls got into a fight with Terrence Mayes outside a house in Blackville, South Carolina. (Dkt. No. 19-2 at 75-77.) The altercation ended with Smalls shooting Terrence and Zantrell Mayes, Terrence's brother. (Id. at 81-82, 652.) Zantrell survived; Terence did not. (Id. at 61.) Smalls has always insisted he shot them in self-defense. (Id. at 652.)
Trial and Direct Appeal
Police arrested Smalls for murdering Terence, assaulting and battering Zantrell with intent to kill, and possessing a weapon during a violent crime. (See Dkt. No. 19-2 at 652.) For some reason, however, Smalls was not indicted for over another year. The grand jury finally indicted him on those three charges on the morning of January 25, 2011—the same day a jury was selected for Smalls' trial. (Id. at 48.) The trial judge was concerned that created a problem; he said there was a state statute that "allows a person who is charged with a capital offense such as murder to have a true copy of the indictment for three days before she should be tried for that offense. Basically so he can talk with his lawyer, et cetera, et cetera." (Id. at 48-49.) The judge discussed that requirement with Smalls, who said he wanted to proceed with trial that day. (Id. at 49.)
Smalls contends the indictments were issued on the second day of his trial. (Dkt. No. 24 at 3.) Although the trial court held a pretrial hearing before indictments were issued, the indictments preceded jury selection and the trial itself.
During jury selection, the trial judge asked the potential jurors if they had a close relationship with Smalls. (Dkt. No. 19-1 at 32.) One stood up and said Smalls was a "personal friend, known the family a long time. Me and him had an incident a couple of years ago where we had been locked up together, and I feel, I feel I would, I feel that I would—" (Id. at 34.) The judge cut him off and excused him. (Id. at 35.) The judge then told the remaining potential jurors to "disregard that statement. I mean we all grow up sometimes and we may get in it a little. That ain't got anything to do with this case." (Id.) After jury selection, Smalls' lawyer asked the judge to dismiss the entire jury panel in light of the potential juror's comment. (Id. at 49-50.) Citing the instruction he gave the panel, the judge denied the motion. (Id. at 50.) The trial began later that day.
The altercation began as a fistfight between Terrence and Smalls. (Dkt. No. 19-1 at 76-77.) The trial featured people who saw the fight and were there when Smalls shot Terrence and Zantrell. (See Dkt. No. 19-1 at 206.) Those eyewitnesses presented differing versions of the shooting. Several witnesses, including Zantrell, testified Smalls shot the brothers after the fight was over and that neither brother threatened Smalls. (Id. at 80-82, 207-10, 239-44, 258-68.) Smalls and another witness testified that after the fisftfight, Zantrell approached Smalls and pointed a pistol in his face; when Terrence pulled a gun out of his pocket, Smalls grabbed another gun from a friend and began shooting. (Id. at 309-13; Dkt. No. 23-6 at 390-98.)
The jury acquitted Smalls of murder, instead finding him guilty of voluntary manslaughter. (Dkt. No. 19-2 at 29.) The jury also found him guilty of assault and battery with intent to kill and of possessing a weapon during a violent crime. (Id.) The judge sentenced him to twenty-five years for killing Terrence, twenty years for shooting Zantrell, and five years for possessing the gun. (Id. at 536.) The sentences were all concurrent. (Id.)
Several days later, a juror came forward. She claimed the trial judge was disrespectful to Smalls' lawyer and made faces throughout the trial indicating he did not believe defense witnesses. (Dkt. No. 19-2 at 52-53.) In two written statements, the juror stated the judge's conduct impacted the jury; she also accused other jurors of improperly influencing the deliberations. (Id.) Members of Smalls' family also wrote statements complaining about the trial judge's behavior. (Id. at 54-64.)
Based on those statements, Smalls' lawyer asked the trial judge for a new trial. (Dkt. No. 19-2 at 546-49.) After a hearing, the judge denied the motion. (Id. at 65-100.) The judge found Smalls had not proved that jurors engaged in any misconduct or that any facial expressions he might have made during the trial affected the case. (Id. at 95-100.)
Smalls then appealed. (See Dkt. No. 23-2.) Through appointed appellate counsel, Smalls raised two issues:
1. Did the trial court err in denying Smalls's motion to dismiss the entire jury panel because it was tainted after a juror during voir dire stated that he and [Smalls] had been incarcerated together?
2. Did the trial court err in denying Smalls's motion for a new trial on the basis that the trial court continuously made highly prejudicial facial
expressions during the presentation of defense witnesses' testimony that denied Smalls his right to a fair and impartial jury and the right to a fair trial?(Id. at 4 (brackets and quotation marks from appellate brief omitted).) The state Court of Appeals affirmed in January 2015. (Dkt. No. 23-4.) It held the voir dire issue was not preserved for review because Smalls' trial counsel did not contemporaneously object to the trial court's curative instruction. (Id. at 2.) As for the trial court's facial expressions during the defense's case, the Court of Appeals held Smalls had not shown the trial court engaged in misconduct or that the expressions prejudiced him. (Id.)
Smalls did not seek rehearing or petition the state Supreme Court for certiorari.
Post-Conviction Relief Proceedings
In November 2015, Smalls filed a pro se application for post-conviction relief ("PCR"), alleging that the trial court lacked jurisdiction to try him and that trial counsel was ineffective. (Dkt. No. 19-2 at 599-634.) Among other things, Smalls faulted trial counsel for not objecting to the timing of the indictments and for not challenging the trial judge's demeanor during the trial. (Id. at 613, 624-25.)
The court appointed Smalls an attorney. (See Dkt. No. 19-2 at 635.) Through that attorney, Smalls amended his petition to assert six more ineffective-assistance claims, including that trial counsel failed to preserve the potential-juror issue for appeal and did not explain the three-day statutory notice requirement. (Id. at 635-38.)
The PCR court heard the case in January 2017. (See Dkt. No. 19-2 at 645.) Smalls and his trial counsel were the only testifying witnesses. (See id. at 646.) The only exhibit introduced was the Court of Appeals' opinion affirming Smalls' convictions. (Id. at 647.)
On the timing of the indictments, Smalls testified state law gave him the right to at least three days' notice of his murder charge before he went to trial. (Dkt. No. 19-2 at 659.) Smalls claimed his trial counsel never discussed that right with him; counsel only asked Smalls whether he wanted to go to trial. (Id.) Had counsel explained the three-day notice period, Smalls would not have agreed to proceed with trial. (Id. at 660.)
As for the potential juror's comment, Smalls testified his direct-appeal lawyer told him they would not win that issue on appeal because trial counsel did not timely object to the comment or to the trial court's instruction. (Id. at 669-70.) Smalls was confident the comment prejudiced him; as soon as the potential juror said it, the courtroom "broke out into a frenzy" of "whispers and conversations." (Id. at 671.) Smalls acknowledged, however, that he later admitted to the jury that he had previously been in prison; during his trial cross-examination, the prosecutor asked Smalls about a 2005 cocaine conviction. (Id. at 680-81; Dkt. No. 23-6 at 421.)
Trial counsel addressed Smalls' claims. He explained the indictments were issued late due to a "glitch," but he and Smalls knew months in advance that the case going to trial in January 2011. (Dkt. No. 19-2 at 687.) Smalls was ready to go to trial; he and trial counsel prepared to face the charges described in the arrest warrants, which matched the allegations in the eventual indictments. (Id. at 687-88.) Counsel did not recall ever discussing the three-day rule with Smalls. (Id. at 689.)
As for the potential juror's comment, counsel acknowledged he did not object when the comment was made or when the trial court instructed the jury to disregard it. (Dkt. No. 19-2 at 691.) He said he did not want to object at those times as that would only draw more attention to the comment, reinforcing it in potential jurors' minds. (Id.) Instead, once the jury panel was out of the courtroom, counsel moved almost immediately to strike the jury panel. (Id. at 692.) He believed that was an appropriate time to raise the issue in order for it to be preserved for appeal. (Id. at 693-94.)
The PCR court denied Smalls' PCR application. (Dkt. No. 19-2 at 730-45.) In its order, the court found Smalls had not proven that trial counsel performed deficiently in any manner or that counsel's performance prejudiced him. (Id. at 737-43.) Although the PCR court addressed some of Smalls' claims in detail, it summarily denied others by finding them abandoned. (Id. at 744.)
With new counsel, Smalls petitioned for certiorari and raised two issues:
I. The PCR judge erred in refusing to find counsel ineffective for failing to contemporaneously object to the [trial] judge's curative instruction after a prospective juror, during jury selection, announced that he had been "locked up" with [Smalls].(Dkt. No. 19-3 at 2.) Smalls attempted to file his own supplemental certiorari brief. (Dkt. No. 19-4.) The state Supreme Court rejected it because Smalls had a lawyer.
II. The PCR court judge erred in refusing to find trial counsel ineffective for failing to object to the jury instruction on mutual combat when there was no evidence that [Smalls] agreed upon a gun fight but instead armed himself in self-defense only after a fist fight escalated when others drew a gun first.
The state Supreme Court granted certiorari in August 2018, and the parties submitted briefs. (See Dkt. No. 19-6, 19-7, & 19-8.) The following April, however, the Supreme Court dismissed its writ as improvidently granted. (Dkt. No. 19-8.)
PROCEDURAL HISTORY
Smalls filed his habeas petition in September 2019. (Dkt. No. 1-2 at 2.) He raises three grounds for relief; each involves ineffective assistance of counsel:
Ground One: [T]he State Court erred in denying his ineffective assistance of counsel claim, where the record before the court clearly and unequivocally demonstrated "there was no secured true billed indictment on the day [Smalls'] trial began," nor was there a petition to empanel a "special term of grand jurors to repair the obvious omission by the State." Which renders [Smalls'] conviction and sentence illegal, where the State Court
was without subject matter jurisdiction to proceed with a trial in this case. To which "[Smalls] could not have waived or given consent."(Dkt. No. 1 at 5, 7, 8.) Smalls wants his convictions vacated. (See Dkt. No. 1-1 at 2.)
Ground Two: Ineffective assistance of appellate counsel, in that she failed to effectively argue the indictment issue. Which worked to sabotage [Smalls'] chances at prevailing on appeal, whereas "cert was initially granted," but then retracted.
Ground Three: Ineffective assistance of counsel, where [Smalls'] otherwise merit issues were denied based on trial counsel's failure to contemporaneously object to trial errors. See appeal decision.
The Warden has moved for summary judgment, and Smalls has filed a response. (Dkt. Nos. 20 & 24.) The motion is therefore ripe for 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 through clear and convincing evidence. § 2254(e)(1).
Before state prisoners may try to clear those high hurdles, two rules steer them to first pursue all relief available in state court. 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 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 Smalls should receive habeas relief. However, the Warden's summary judgment motion 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 Smalls' claims are properly before the Court?In answering those questions, the undersigned has carefully considered the record before the Court and has liberally construed the materials Smalls has submitted. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007).
(2) Are there genuine issues of fact as to the merits of Smalls' 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?
DISCUSSION
The Warden contends Smalls' petition should be dismissed as untimely. (Dkt. No. 19 at 8.) Alternatively, he argues, Smalls is not entitled to relief because most of his claims are procedurally defaulted and the one claim properly before this Court lacks merit. (Id. at 17-39.) For the following reasons, the undersigned agrees the petition is untimely and recommends dismissing it on that basis.
I. The Statute of Limitations
The Warden argues the Court should dismiss this case because Smalls did not timely file his habeas petition. (Dkt. No. 19 at 9.) Smalls insists the limitation period should be equitably tolled. (Dkt. No. 1 at 14.) He may also be arguing the Court should reach the merits because he is actually innocent. (See Dkt. No. 24 at 4.)
Later in his brief, however, the Warden states in a footnote that Smalls' petition is timely. (Dkt. No. 19 at 21 n.10.) That appears to be a typo.
A. Whether Smalls Timely Filed His Petition
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. § 2244(d)(1)(A). When a person does not pursue direct appeal all the way to the Supreme Court of the United States, his conviction becomes final when his opportunity to seek direct review in that court, or in state court, expires. Gonzales v. Thaler, 565 U.S. 134, 150 (2012) (explaining § 2244(d)(1)(A)). Smalls is such a person; his direct-appeal efforts ended at the state Court of Appeals.
That court affirmed Smalls' convictions on January 14, 2015. (Dkt. No. 23-4 at 1.) Smalls had fifteen days to petition for rehearing. Rule 221(a), SCACR. Petitioning the Court of Appeals for rehearing is a prerequisite to obtaining certiorari at the state Supreme Court. See Rule 242(d), SCACR; Grant v. Bush, No. 6:14-cv-1313-DCN, 2015 WL 4747104, at *13 (D.S.C. Aug. 11, 2015). But Smalls never asked the Court of Appeals for rehearing. Under South Carolina's appellate court rules, then, Smalls' conviction became final—and his one-year window to seek habeas opened—on January 30, 2015, the day after Smalls' opportunity to seek rehearing ended.
Once § 2244(d)(1)'s limitations period starts, it is paused 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 November 2, 2015. (Dkt. No. 19-2 at 599.) At that point, 279 days had passed since Smalls' limitations period began, leaving him 86 days to file after the PCR case ended.
The Warden contends the application was filed November 3. (Dkt. No. 19 at 10.) The application is file-stamped in several places; the stamp on the first page states November 2, while the other stamps state November 3. (Dkt. No. 19-2 at 599, 604, 606.) Although the one-day difference is immaterial, using the earlier date is consistent with the Court's obligation to view the evidence in the light most favorable to Smalls.
But when did Smalls' PCR case end? Subsection 2244(d)(2)'s pause on the limitations period lifts "[u]pon final disposition of the state post-conviction proceeding." Harris v. Hutchinson, 209 F.3d 327, 327 (4th Cir. 2000). In 2015, Judge Lewis issued an opinion thoroughly examining the question of when a PCR case reaches final disposition for the purposes of § 2244(d)(2). Beatty v. Rawksi, 97 F. Supp. 3d 768 (D.S.C. 2015), appeal dismissed, 633 F. App'x 832 (4th Cir. 2016) (per curiam). Judge Lewis concluded that, when there has been an appeal in the PCR case, the case becomes final under § 2244(d)(2) when the circuit court files the appellate court's remittitur. See id. at 775-76. Other judges in this district have agreed. See, e.g., Ventura v. Warden Perry Corr. Inst., No. 8:19-cv-3244-HMH-JDA, 2019 WL 7500493, at *3 (D.S.C. Dec. 11, 2019), report and recommendation adopted, 2020 WL 95719 (D.S.C. Jan. 8, 2020); McGaha v. Stirling, No. 6:18-cv-1736-RMG-KFM, 2019 WL 3805518, at *4 (D.S.C. June 21, 2019), report and recommendation adopted, 2019 WL 3802774 (D.S.C. Aug. 13, 2019); Monroe v. Louis, No. 6:18-cv-561-RBH, 2019 WL 1229746, at *2 (D.S.C. Mar. 15, 2019), appeal dismissed, 780 F. App'x 56 (4th Cir. 2019) (per curiam); Wright v. Anderson, No. 8:18-cv-191-JMC, 2019 WL 1170821, at *3 (D.S.C. Mar. 13, 2019); Watson v. Warden of Lieber Corr. Inst., No. 8:17-cv-3079-DCC-JDA, 2018 WL 8332691, at *9 (D.S.C. July 31, 2018), report and recommendation adopted, 2019 WL 1055254 (D.S.C. Mar. 6, 2019); Hipp v. Stephan, No. 5:17-cv-2297-TMC-KDW, 2018 WL 3653178, at *18 (D.S.C. May 21, 2018), report and recommendation adopted, 2018 WL 3647120 (D.S.C. July 31, 2018), appeal dismissed, 755 F. App'x 305 (4th Cir. 2019) (per curiam); Thomas v. Warden, Perry Corr. Inst., No. 5:16-cv-1764-BHH-KDW, 2018 WL 3120682, at *9 (D.S.C. Jan. 31, 2018), report and recommendation adopted, 2018 WL 1250290 (D.S.C. Mar. 12, 2018), appeal dismissed, 736 F. App' 71 (4th Cir. 2018); Green v. Warden, Kershaw Corr. Inst., No. 4:16-cv-1052-PMD-TER, 2017 WL 2199019, at *5 (D.S.C. Apr. 28, 2017), report and recommendation adopted, 2017 WL 2180713 (D.S.C. May 18, 2017); Tascoe v. Warden, Lee Corr. Inst., No. 2:17-cv-235-CMC-MGB, 2017 WL 9250347, at *3 (D.S.C. Apr. 28, 2017), report and recommendation adopted, 2017 WL 2240675 (D.S.C. May 23, 2017). But see Frazier v. Warden of Lieber Corr. Inst., No. 1:18-cv-1511-CMC-SVH, 2019 WL 1369678, at *5 n.8 (D.S.C. Feb. 25, 2019), (stating there is a dispute in this District as to what event constitutes the final disposition of a PCR case with an appeal), report and recommendation adopted, 2019 WL 1364866 (D.S.C. Mar. 26, 2019).
The Warden contends Beatty was wrongly decided. (Dkt. No. 19 at 11 n.5.) He insists that, in PCR cases where a South Carolina appellate court denies relief, the case becomes final under § 2244(d)(2) on the date of the denial. (Id. at 10 n.5.)
The Court need not take a stance on the issue in this case; Smalls' petition is untimely under both Beatty and the Warden's position. The state Supreme Court ended Smalls' PCR case on April 24, 2019 by dismissing its writ of certiorari as improvidently granted. (Dkt. No. 19-8.) That court issued its remittitur on May 13; the circuit court filed it two days later. (Dkt. Nos. 19-9 & 19-10.) Smalls filed his habeas petition on September 19. That was 147 days after the state Supreme Court dismissed certiorari and 128 days after the circuit court filed the remittitur. But Smalls had just 86 days to petition for habeas after his PCR case ended. Thus, his petition is untimely by at least 42 days.
B. Whether the Limitations Period Should Be Equitably Tolled
Smalls ascribes his untimeliness to circumstances outside his control. (Dkt. No. 1 at 14.) He asserts that, due to prison gang violence in which he did not participate, he was on "continuous lock-down status" for over a year. (Id.) During that lockdown, he could not leave his cell and had no access to legal materials. (Id.) In addition, he was transferred to another prison, and prison staff misplaced "all his legal paperwork." (Id.) Based on those factors, Smalls contends the Court should equitably toll § 2244(d)'s limitation period and find his petition timely. (Id.)
Subsection § 2244(d) may be equitably tolled "in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). To get the limitations period equitably tolled, a habeas petitioner must show (1) he has been pursuing his rights diligently, but (2) some extraordinary circumstance stood in his way (3) and it prevented timely filing. Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
The conditions Smalls describes are not unique. This Court has held that lockdowns, transfers, separation from one's legal papers, and lack of access to legal research materials do not amount to extraordinary circumstances. See, e.g., Kirkman v. Lewis, No. 4:18-cv-181-BHH, 2019 WL 1297208, at *4 (D.S.C. Mar. 21, 2019) (prisoner transferred and then did not have access to his legal files for thirty days), appeal dismissed, 776 F. App'x 151 (4th Cir. 2019) (per curiam); Jones v. Bush, No. 0:14-cv-1760-TLW, 2015 WL 1826408, at *5 (D.S.C. Apr. 20, 2015) (prisoner on lockdown did not explain how that lockdown prevented timely filing), appeal dismissed, 623 F. App'x 80 (4th Cir. 2015) (per curiam); Gleaton v. Bush, No. 4:14-cv-890-TMC, 2014 WL 5527826, at *7 (D.S.C. Oct. 31, 2014) (adopting report and recommendation which found that "[p]rison conditions, such as lockdowns . . . , are not normally grounds for equitable tolling"); Lawrence v. Warden of Kirkland Corr. Inst., No. 5:12-cv-3054-TMC, 2013 WL 6054486, at *1 (D.S.C. Nov.15, 2013) (holding that, in general, "transfers between prison facilities, solitary confinement, lockdowns, restricted access to the law library, and an inability to secure court documents do not qualify as extraordinary circumstances") (citation and quotation marks omitted); Garvin v. Eagleton, No. 8:12-cv-1165-JMC, 2013 WL 3821482, at *13 (D.S.C. July 23, 2013) (adopting report and recommendation finding that "lack of resources in the law library do not constitute the type of extraordinary circumstances that justify equitable tolling because alleged inadequacies of prison law libraries do not toll the statute of limitations"), appeal dismissed, 544 F. App'x 236 (4th Cir. 2013) (per curiam). The undersigned cannot find anything in the record that distinguishes the setbacks Smalls identifies from what this Court has rejected in previous cases. She therefore believes equitable tolling would be inappropriate because Smalls has not shown any extraordinary circumstances caused his delay. Thus, even without considering the other two components of equitable tolling—whether Smalls was diligent and whether the conditions in question prevented timely filing—the undersigned recommends not equitably tolling the limitations period.
C. Actual Innocence
Smalls has also asserted he is actually innocent of the crimes for which he has been imprisoned. (Dkt. No. 24 at 4.) A habeas petitioner's actual innocence is a valid (though rarely established) basis for excusing the untimeliness of his filing. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). Although Smalls does not explicitly raise his innocence as a defense to his petition's lateness, the undersigned liberally construes his assertion of actual innocence that way.
The key to an actual-innocence claim is the submission of "'new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.'" Hayes v. Carver, 922 F.3d 212, 216 (4th Cir. 2019) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). To get the actual-innocence exception, the petitioner must show that, "in light of all the evidence, old and new, it is more likely than not that no reasonable juror would have voted to find him guilty beyond a reasonable doubt." Id. at 217 (citing Finch v. McKoy, 914 F.3d 292, 298-299 (4th Cir. 2019)); see also McQuiggin, 569 U.S. at 401 (stressing this standard "is demanding").
Smalls has not identified any new evidence in support of his innocence. Thus, to the extent Smalls is asserting his innocence as a way around the statute of limitations, he has not proved that avenue is open to him.
D. Conclusion
For the above reasons, the undersigned recommends granting the Warden's motion, and dismissing Smalls' petition, on the basis that the statute of limitations bars this action. In the event the Court disagrees with that recommendation, the undersigned addresses Smalls' grounds for relief below.
II. Ground One
In PCR, Smalls claimed his trial attorney was ineffective for not objecting to the indictments being issued the morning his trial began. (Dkt. No. 19-2 at 613.) Smalls also faulted his lawyer for failing to explain the three-day notice requirement to him. (Id. at 618.)
The PCR court rejected both claims, finding Smalls did not prove deficient performance or prejudice on either of them. (Dkt. No. 19-2 at 737-39.) Smalls challenges those rulings in Ground One. (See Dkt. No. 1 at 5.)
A. Procedural Default
The Warden contends this ground is procedurally defaulted. The undersigned agrees. Although the PCR court ruled on both claims within the ground, Smalls' PCR appellate lawyer did not raise either issue in the PCR appeal. Smalls tried to raise them by filing a pro se supplemental certiorari brief. (Dkt. No. 19-3.) However, because Smalls was represented by counsel, the state Supreme Court refused to accept his brief for filing and did not consider it during the appeal. Thus, the issue was never properly appealed. For that reason, Ground One is procedurally defaulted. See Whitley v. Bair, 802 F.2d 1487, 1500 (4th Cir. 1986) ("[F]ailure to appeal claims disposed of by state habeas trial court constitutes a procedural bar to further federal review of such claims.").
The parties did not include Supreme Court's letter rejecting Smalls' supplemental brief in their submissions. Because the letter is publicly available on the South Carolina Appellate Case Management System, the undersigned takes judicial notice of it. See Jones v. Williams, No. 1:18-cv-2600-HMH-SVH, 2019 WL 2265113, at *2 n.2 (D.S.C. May 28, 2019) (taking judicial notice, in habeas case, of state court's records), appeal dismissed, 785 F. App'x 976 (4th Cir. 2019) (per curiam).
Smalls contends that under Martinez v. Ryan, 566 U.S. 1 (2012), he has cause and prejudice excusing his default. (Dkt. No. 1 at 12.) Martinez allows habeas petitioners to avoid procedural default where, due to PCR counsel's error, a potentially meritorious ineffective-assistance claim became procedurally defaulted at the first level of PCR review. 566 U.S. at 14. In that specific circumstance, the federal court may decide the claim on its merits despite the procedural default. See id.
Martinez does not apply here. "Ineffective assistance of PCR appellate counsel, as opposed to initial PCR counsel, is not cause for a default" under Martinez. Cobbs v. Cartledge, No. 9:15-cv-3038-MBS-BM, 2016 WL 9019648, at *6 (D.S.C. June 16, 2016) (citing Martinez, 566 U.S. at 11, and collecting cases), report and recommendation adopted, 2016 WL 9019649 (D.S.C. Oct. 11, 2016). Consequently, PCR appellate counsel's omission of these issues from the certiorari petition she filed on Smalls' behalf cannot excuse Smalls' procedural default. If the undersigned considers Smalls' grounds for relief, the undersigned recommends granting the Warden summary judgment on Ground One on the basis of procedural default, and without reaching the merits. To be thorough, however, the undersigned has addressed them below.
B. Merits
The Sixth Amendment guarantees criminal defendants effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). A petitioner proves ineffective assistance by showing his attorney's performance was deficient and prejudiced him. Id. at 687. An attorney's performance is deficient if it was unreasonable under the circumstances of the case and under then-prevailing professional norms. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Prejudice is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A "reasonable probability" means "a probability sufficient to undermine confidence in the outcome." Kimmelman, 477 U.S. at 384.
Strickland is highly deferential to counsel, and § 2254(d) is highly deferential to state courts. Harrington v. Richter, 562 U.S. 86, 105 (2011). That makes this Court's review "doubly deferential." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The question here is "not whether counsel's actions were reasonable" but "whether there is any reasonable argument that [Smalls'] counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105. The record before the Court demonstrates the answer is yes.
Subsection 2254(d)'s standards are to be applied to the decision from the highest state court to decide the claim at issue on the merits. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). Where, as here, the highest state court rules summarily, the federal habeas court should "look through" that unexplained decision to the last state-court decision that provides a relevant rationale, and "should then presume that the unexplained decision adopted the same reasoning." Id. In this case, the PCR court was the only one to issue a reasoned decision on Smalls' claims. As neither party contends the state Supreme Court dismissed certiorari on different reasoning than what the PCR court provided, the undersigned has applied Sellers by using the PCR court's decision to analyze Ground One.
The PCR court found there was nothing objectionable about the indictments and saw nothing to gain from trial counsel challenging them. (Dkt. No. 19-2 at 737.) Moreover, because the jury had not been sworn in when the indictments were issued, the Constitution's ban on double jeopardy had not come into play. Consequently, the court reasoned, even if counsel got the indictments thrown out, the State could have just re-indicted Smalls and taken him to trial later. (Id. at 737-38.)
Smalls has not shown how that analysis is flawed. Although the State's failure to secure indictments until the day of trial was by no means ideal, Smalls' trial counsel testified he and Smalls knew what charges Smalls was facing. (Dkt. No. 19-2 at 687.) And consistent with the PCR court's reasoning, trial counsel also testified that because jeopardy had not attached when the issue of the indictments arose, the only potential effect of challenging them would be to delay trial. (Id. at 689-90.) Counsel testified he saw no benefit in that; he was ready to proceed, and Smalls wanted to go to trial as planned. (Id. at 690.) The PCR court's decision on this issue was reasonable.
As for the three-day notice period, the PCR court found Smalls had not proven that trial counsel failed to explain "what it meant to waive this requirement." (Dkt. No. 19-2 at 738.) Then, as with Smalls' other indictments-based claim, the court found there was no prejudice because even if counsel had successfully invoked the rule, the only consequence would have been delaying the trial date. (Id.)
The undersigned sees no grounds for disturbing the PCR court's decision. The three-day notice requirement at issue comes from section 17-19-80 of the South Carolina Code. South Carolina's Supreme Court has held section 17-19-80's notice requirement applies only when the State has sought the death penalty. State v. Rackley, 272 S.E.2d 33, 34 (S.C. 1980). The State did not do that here, which means Smalls did not have a right to three days' notice. Additionally, and as the trial judge pointed out, the purpose of the notice requirement is to ensure the defendant has time to prepare for trial with his lawyer. See S.C. Code Ann. § 17-19-80. Smalls had months to prepare, so any potential violation of the statute did not prejudice him. Finally, and relatedly, Smalls has not shown he would have benefitted from a delay in trial. Thus, the PCR court reasonably concluded counsel was not ineffective.
Finally, the undersigned recognizes Smalls is asserting the timing of the indictments meant the trial court lacked subject matter jurisdiction. (Dkt. No. 1 at 5.) The PCR court addressed that, finding the trial court had both personal and subject matter jurisdiction over Smalls. (Dkt. No. 19-2 at 743-44.) This Court has no power to review the PCR court's conclusions on those state-law issues. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Thomas v. Davis, 192 F.3d 445, 449 n.1 (4th Cir. 1999); see also Rice v. Pate, No. 4:14-cv-185-TLW-TER, 2014 WL 8335449, at *9 (D.S.C. Oct. 6, 2014) (finding PCR court reasonably determined counsel was not ineffective for failing to raise an argument that had no merit under state law), report and recommendation adopted, No. 4:14-cv-185-MGL, 2015 WL 1400070 (D.S.C. Mar. 26, 2015).
In sum, even if the Court reaches the merits of this ground, the undersigned would still recommend granting the Warden summary judgment on it.
III. Ground Two
This claim involves Smalls' PCR appellate lawyer. He faults her for not challenging the PCR court's rulings regarding the indictments. (Dkt. No. 1 at 7.)
The Warden argues this claim is procedurally defaulted. (Dkt. No. 19 at 27.) According to the Warden, the PCR court ruled on the claim, but the claim is defaulted because it was not raised in the PCR appeal. (Id.)
The undersigned disagrees with the Warden's argument. The PCR court never ruled on this claim. That would have been impossible—the claim arose during only during the PCR appeal, long after the PCR court issued its ruling. Moreover, once Smalls learned his appellate PCR lawyer's certiorari petition did not challenge the PCR court's rulings regarding the indictments, Smalls attempted to file a supplemental certiorari brief raising those issues and faulting his lawyer for not including it in her petition. (Dkt. No. 19-3.)
The Warden appears to think Ground Two involves Smalls' lawyer in the direct appeal. (See Dkt. No. 19 27-28.) Although Smalls' petition could be clearer, it sufficiently indicates he is referring to his PCR appellate lawyer. (See Dkt. No. 1 at 7.)
In any event, Ground Two should be denied for a separate reason: a prisoner cannot get federal habeas based on his PCR lawyer's errors. § 2254(i). For that reason, the undersigned recommends granting the Warden summary judgment on Ground Two.
IV. Ground Three
In Ground Three, Smalls claims trial counsel was ineffective by failing to preserve the issue regarding the potential juror's remark during voir dire that he and Smalls were "locked up" together in the past. (See Dkt. No. 1 at 8.)
This claim springs from the Court of Appeals' decision in the direct appeal. Smalls' trial counsel did not say anything immediately after the potential juror mentioned he had been in prison with Smalls, or immediately after the trial judge excused that person and told the jury to disregard his comment. (Dkt. No. 19-1 at 34-35.) Instead, counsel raised the issue after voir dire ended. (Id. at 49-50.) The Court of Appeals held that was too late to preserve the issue for appellate review; because counsel did not "contemporaneously object" when the trial judge gave the curative instruction, the issue was not preserved. (Dkt. No. 23-4 at 2.)
Nevertheless, the PCR court found trial counsel was not ineffective on this issue. It first found counsel did not perform deficiently:
Trial Counsel gave a valid strategic reason for choosing not to object at the time the comment was made. He credibly testified that he chose not to draw the jury pool's attention to the comment by objecting. He objected immediately once he was outside the presence of the jury, he requested a new trial, and the trial court denied his motion but gave a curative instruction. Because Trial Counsel strategically chose not to object and made the appropriate objections once outside the presence of the jury, the Court finds that Trial Counsel was not deficient in his actions.(Dkt. No. 19-2 at 739.)
The PCR court then found trial counsel's failure to contemporaneously object did not prejudice Smalls. (Dkt. No. 19-2 at 739.) The court pointed out that, when Smalls later testified in his own defense, the prosecutor brought up the fact that Smalls was convicted of a cocaine offense in 2005. (Id.) That prior offense was admissible for impeaching Smalls' credibility. (Id.) "[B]ecause the jury knew about the conviction anyway," the PCR court found there was no prejudice. (Id.)
The Warden asserts the PCR court's decision was legally and factually reasonable. Focusing on Strickland's prejudice prong, the undersigned agrees. Trial counsel testified he and Smalls' strategy going into trial included Smalls taking the stand to give his side of the story. (Dkt. No. 19-2 at 684.) Testifying at trial exposed Smalls to cross-examination, and South Carolina law made Smalls' prior cocaine conviction fair game for the prosecutor. (Dkt. No. 19-2 at 739.) Thus, it was not merely a mishap or coincidence that the jury learned Smalls had a prior criminal record; because Smalls planned to testify, it was nearly inevitable. In light of those circumstances, the undersigned sees no basis for disturbing the PCR court's no-prejudice finding under § 2254(d).
The Warden does not contend this claim is procedurally defaulted. The claim appears to be properly before the Court, as it was raised and ruled upon at all required levels of PCR review.
That conclusion is dispositive of Smalls' claim. See Strickland, 466 U.S. at 697 (suggesting courts should dispose of ineffective-assistance claims for lack of prejudice when possible). Consequently, if the Court reaches the merits of this claim, the undersigned recommends the Court grant the Warden summary judgment due to lack of Strickland prejudice.
V. The Trial Judge's Facial Expressions
The Warden construes Ground Three as including an additional claim that trial counsel was ineffective for not contemporaneously objecting to the facial expressions the judge allegedly made during the trial. (Dkt. No. 19 at 28.) The undersigned does not see such a claim within Ground Three.
In Ground Three, Smalls claims trial counsel was ineffective because Smalls' "otherwise merit[orious] issues were denied based on trial counsel's failure to contemporaneously object to trial errors." (Dkt. No. 1 at 8.) Smalls then directs the reader to the Court of Appeals' opinion in his direct appeal. (Id.) The Court of Appeals held the potential-juror issue was not preserved because trial counsel "failed to contemporaneously object" to the trial judge's curative instruction. (Dkt. No. 23-4 at 2.) The court did not mention issue preservation in its discussion of the trial judge's facial expressions. Instead, it addressed that issue on the merits. (Id.) Thus, although Smalls uses the plural—"issues" and "errors"—in Ground Three, his actual claim—failure to contemporaneously object—applies only to trial counsel's failure to preserve the potential-juror issue. Consequently, Ground Three does not appear to include an additional claim about trial counsel's handling of the trial judge's alleged demeanor. In the event the Court disagrees, the undersigned addresses it below.
A. Procedural Default
The Warden contends this claim is procedurally defaulted. (Dkt. No. 19 at 36.) The undersigned agrees.
Smalls asserted the claim in his PCR application. (Dkt. No. 19-2 at 624-25.) However, the PCR court did not explicitly address the claim in its order; rather, the claim appears to have fallen under the court's blanket ruling that all issues not explicitly addressed in its order were deemed abandoned. (Dkt. No. 19-2 at 744.) PCR counsel did not file a motion asking the court to rule on the claim, and the claim was not raised in the PCR appeal. (See Dkt. Nos. 19-3 & 19-4.) Claims not ruled upon by the PCR court or raised in the PCR appeal are procedurally defaulted. See Whitley, 802 F.2d at 1500; Blassingame v. Cartledge, No. 4:14-cv-2814-JMC, 2015 WL 5554589, at *14 (D.S.C. Sept. 21, 2015), appeal dismissed, 655 F. App'x 978 (4th Cir. 2016) (per curiam).
Smalls contends this default should be excused under Martinez. (Dkt. No. 1 at 12.) The undersigned disagrees, as she does not find the claim to be a substantial one. To succeed on the claim, one of the things Smalls would have to prove is that the trial judge's alleged behavior affected the verdict. But both the trial judge and the state Court of Appeals concluded Smalls had not shown such an impact. (Dkt. No. 19-2 at 593-98; Dkt. No. 23-4 at 2.) To the contrary, the Court of Appeals saw "no evidence of misconduct or any prejudice resulting from any alleged misconduct." (Dkt. No. 23-4 at 2.) Those conclusions are presumed correct; Smalls does not explain how he could overcome that presumption. See § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.") Those presumed-correct findings would prevent a finding that counsel's alleged error prejudiced Smalls. Because the defaulted claim does not appear to have merit, it does not qualify for a Martinez exception to procedural default.
B. Merits
The undersigned does not see merit in this claim. As just discussed, the state courts' findings about the judge's behavior are presumably correct, and nothing before the Court enables Smalls to overcome that presumption. Because Smalls appears unable to establish prejudice on this claim, the undersigned would recommend denying the claim if the merits are reached.
V. 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). Where a petitioner's constitutional claims are dismissed on procedural grounds, the petitioner must show both (1) that jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right, and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001). The undersigned does not see a basis for issuing a certificate in this case.
CONCLUSION
For the above reasons, the undersigned recommends the Court grant the Warden summary judgment, dismiss this case with prejudice, and decline to issue a certificate of appealability.
IT IS SO RECOMMENDED. March 23, 2020
Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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).