Opinion
C. A. 5:23-1335-BHH-KDW
02-26-2024
Chad Stalnaker, also known as, Chad Patrick Stalnaker, Petitioner, v. Warden Martell of MacDougall, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Chad Stalnaker (“Petitioner”) is an inmate at the MacDougall Correctional Institution of the South Carolina Department of Corrections. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 18, 19. On August 15, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 21. On September 11, 2023, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment, ECF No. 30. Respondent filed a Reply to Petitioner's Response on September 18, 2023, ECF No. 31, and Petitioner filed a Sur-Reply on October 2, 2023. ECF No. 33.
Respondent also filed a Motion to Strike certain materials from the Petition that were not part of the State record. ECF No. 20. Based on the recommendation for denial of the Petition, the Motion to Strike is moot.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 19, be granted, and this Petition be denied.
I. Factual and Procedural Background
Petitioner was indicted by the Charleston County Grand Jury in the September 2014 term of court for attempted murder and possession of a weapon during the commission of a violent crime. App. 544-47. On September 12-14, 2016, Petitioner appeared before the Honorable W. Jeffrey Young for a jury trial. App. 1 et. seq. Petitioner was represented by Attorneys William Runyon and Stan Jaskiewicz, and Assistant Solicitors Daniel W. Cooper and David Osborne appeared on behalf of the State. Id. After the start of trial and the conclusion of the State's case, Attorney Runyon informed the court Petitioner wished to enter a guilty plea to the reduced charge of assault and battery of a high and aggravated nature (“ABHAN”) and possession of a weapon during the commission of a violent crime. App. 280-81. The court then questioned Petitioner about his understanding of his charges, potential sentences, and the constitutional rights he would be waiving, and Petitioner stated he understood and wanted to continue with his plea. App. 281-85. Following the questioning by Judge Young, Petitioner entered guilty pleas to ABHAN and the weapon charge and Judge Young sentenced him to 15-years imprisonment. App. 285-86, 296. Petitioner did not file a direct appeal. ECF No. 1 at 2.
Citations to “App.” refer to the Appendix for Petitioner's trial and guilty plea transcript and Post Conviction Relief (“PCR”) proceedings and the page numbers on the top of the page. That appendix is available at ECF Nos. 18-1 to 18-10 in this habeas matter.
Petitioner filed an application for PCR on January 18, 2017, in which he alleged he was being held unlawfully due to ineffective assistance of counsel-new evidence, and state misconduct-new evidence. App. 301-39. The State filed a return and partial motion to dismiss on July 6, 2017, App. 340-46, and Petitioner filed a return to Respondent's partial motion to dismiss on July 10, 2017, App. 541-42. A PCR evidentiary hearing was held before the Honorable Deadra L. Jefferson, Circuit Court Judge, on July 23, 2018. App. 348-476. Petitioner was present and represented by Attorney James K. Falk, and Attorney Kelly Oppenheimer appeared on behalf of the State. See id. Petitioner, his father Eric Stalnaker, and his trial/plea counsels William Runyon and Stanley Jaskiewicz Jr. testified at the hearing. Id. On November 7, 2018, Judge Jefferson filed an order dismissing Petitioner's PCR application with prejudice, App. 478-512, making the following findings of facts and conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility and weigh their testimony accordingly. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. CODE ANN. §17-27-80 (1985).
I. Ineffective Assistance of Counsel
The Applicant seeks relief from his conviction on the basis that he received ineffective assistance of counsel at his criminal trial and plea in violation of the Sixth Amendment. The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel. U.S. CONST. AMEND. VI; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984). Where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985).
In evaluating allegations of ineffective assistance of counsel, the reviewing court must apply a two-pronged test. Strickland, 466 U.S. 668, 104 S.Ct. at 2064. First, the applicant must prove that counsel's performance was deficient. Id.; Cherry v. State, 300 S.C. 115, 117, 386 S.E.2d 624, 625 (1989). Under this prong, the court measures an attorney's performance by its “reasonableness under prevailing professional norms.” Cherry, 300 S.C. at 117, 386 S.E.2d at 625 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2064). The proper measure of performance is whether an attorney provided representation within the range of competence required in criminal cases. Butler, 286 S.C. at 442, 334 S.E.2d at 814. “Counsel is
strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2064). The applicant must overcome this presumption to receive relief. Cherry, 300 S.C. at 118, 386 S.E.2d at 625. Once the Applicant has established deficient performance by counsel, he must then establish that counsel's performance prejudiced the applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 117-18, 386 S.E.2d at 625. “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.” Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). After careful review based on the above standard, this Court finds that the Applicant has failed to carry her [sic] burden in this action. Below are this Court's findings in regards to each of Applicant's allegations of ineffective assistance of counsel.
A. Counsels' alleged failure to move for a change in venue
Applicant alleges counsels were ineffective for failing to move for a change in venue, particularly in light of the media attention his case received. A defendant has the right to be tried in the county in which the alleged crime was committed. State v. Manning, 329 S.C. 1, 8, 495 S.E.2d 191, 194 (1997). This right, however, “is conditioned upon the possibility of empaneling an impartial jury in that county.” Id. (citing Tate ex rel. Sullivan v. Patterson, 165 P.2d 309 (Ariz. 1946). “When jurors have been exposed to pretrial publicity, a denial of a change of venue is not error when the jurors are grounds to have the ability to set aside any impressions or opinions and render a verdict based on the evidence presented at trial.” Id. at 7, 495 S.E.2d at 194 (citing State v. Patterson, 324 S.C. 5, 482 S.E.2d 760, cert denied, 513 U.S. 831 (1997); State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990)). Moreover, mere exposure to pretrial publicity does not automatically disqualify a prospective juror. Id. Here, Mr. Runyon testified although Applicant's case drew media attention, he would have needed to show to the court a change of venue was necessary due to more than mere attention of the case by the media. Such a showing was not possible. Therefore, this Court finds Applicant has failed to establish any deficiency on the part of counsel.
Similarly, this Court finds Applicant has failed to establish any resulting prejudice from the alleged deficiency. When a motion for a change in venue is predicated upon pretrial publicity, the moving party must show actual juror prejudice as a result of the publicity. Id. at 8, 495 S.E.24 at 194. During voir dire, the trial court questioned the jury panel about any pretrial knowledge of Applicant's case. Specifically, the trial court asked: “Is there any member of the jury panel who knows any information about the events that occurred on the day of May 18, 2014 at all? If so, please stand.” (Transcript of Trial/Plea at 10:6-8; State v. Chad Stalnaker, September 12, 2016). There was no response. (Id. at 10:9). The Court further questioned the jury panel: “Is there any member of the jury panel who is
aware of any bias or prejudice towards either the State or the Defendant in this case? If so, please stand.” (Id. at 10:15-18). No members of the jury panel responded. (Id. at 10:19). The Court also asked: “Has any member of the jury panel formed or expressed an opinion about any issue or matter in this case? If so, please stand.” (Id. at 9:11-14). One juror stood up and indicated to the Court that he knew of evidence outside of what would be presented at trial, and that it was unlikely that he could remain fair and impartial. (Id. at 9:15-24). Thereafter, the trial court removed the juror from the panel with no objection from the State or Defense counsel. (Id. at 9:25 - 10:3). Accordingly, there was no actual prejudice from any member of the jury pool upon which counsel could have based a motion for a change in venue. This Court finds this allegation must be denied and dismissed with prejudice.
B. Counsels' alleged failure to strike a juror
Applicant alleges counsels were ineffective for failing to strike juror number thirty-six. Specifically, Applicant contends because juror number thirty-six had a relationship with the Solicitor's Office, she should have been stricken from the jury. A criminal defendant has the right to a trial by an impartial jury. U.S. CONST. Amend VI; S.C. CONST. art. I, § 14. However, “there is no rule of law that a juror must be disqualified on account of his relationship to an attorney in the case.” State v. Neeley, 271 S.C. 33, 37, 244 S.E.2d 522, 525 (1978) (citing State v. Nicholson, 221 S.C. 399, 70 S.E.2d 632 (1952)). Furthermore, when the failure by a juror to disclose this relationship is the result of an honest mistake, it cannot be inferred that the juror is not impartial. Compare State v. Savage, 306 S.C. 5, 409 S.E.2d 809 (Ct. App. 1991) (holding the trial court did not abuse its discretion in denying Appellant's motion for a mistrial when, there was no evidence Appellant would have exercised a preemptory challenge of a juror even if he had known that juror and a witness were third cousins), with State v. Gulledge, 277 S.C. 368, 287 S.E.2d 488 (1982) (holding the trial court abused its discretion in denying Appellant's motion for a mistrial when a juror was related to the deputy sheriff who viewed the crime scene and had custody of the prisoner in the courtroom during trial).
Here, Mr. Runyon informed the trial court that juror number thirty-six was the great niece, by marriage, of a paralegal, who worked in the Solicitor's Office. (Tr. at 123:18 -- 125:18). In advising the court of the relationship, the State emphasized their paralegal “wasn't even sure whether or not [juror thirty-six] knew that she worked for the Solicitor's office.” Id. at 124:20-22). The State further emphasized: “One of our paralegals her husband - she thinks it is her husband's great niece and she just brought that to our attention our [sic] of an abundance of caution --... She was able to give us her last name after a few seconds so I don't think the connection is that close.” Id. at 123:24 - 124:4). Clearly, the relationship in question was not a close, personal relationship. The trial court then brought juror number thirty-six out, and a bench conference was held. (Id. at 125:17-18).
Furthermore, Mr. Runyon testified at the evidentiary hearing he was satisfied with the juror's responses to the court's questions and did not feel the need to strike the juror. Based on the foregoing, this Court finds Applicant has failed to establish any deficiency on the part of either counsel. Clearly, the trial court inquired of this juror whether or not she could remain impartial, and neither counsel had any reason to believe this juror could not give Applicant a fair trial. Moreover, this Court finds Applicant has failed to establish any resulting prejudice from this alleged deficiency, particularly in light of the fact Applicant decided to plead guilty during trial. Further, the record is void of any evidence suggesting that the seating of this juror precipitated the Applicant's guilty plea. Accordingly, this allegation must be denied and dismissed with prejudice.
C. Counsels' alleged failure in eliciting racial slurs made by Applicant
Applicant alleges counsels were ineffective for eliciting testimony from an eyewitness that Applicant uttered racial slurs before attacking Victim. (Id. at 186:414). Mr. Runyon testified and this Court finds credible, his assertion from a strategic posture, that once on direct the witness Brad Hutchinson made mention of “yelling” between the Victim and Applicant it was necessary that it be clarified on cross examination. However, he testified that once a racial epithet was mentioned he had to address it somehow with the witness. This Court finds Applicant has failed to establish any resulting prejudice from this alleged deficiency. As an initial matter, this Court finds this line of testimony had no bearing on Applicant's decision to plead guilty. Furthermore, Applicant indicated to the trial court during his plea, he agreed with the facts as presented during the State's case-in-chief and declined to add any facts. (Id. at 282:8-17). Accordingly, this allegation must be denied and dismissed with prejudice.
D. Counsels' alleged failure in misinforming Applicant as to the consequences of his plea
Applicant contends counsel were ineffective for failing to accurately advise him of the consequences of his plea. Specifically, Applicant contends counsels promised him he would plead to a non-violent offense, would be parole eligible every year, and he would only be required to serve fifty-five percent of his sentence. As an initial matter, this Court finds Mr. Runyon's and Mr. Jaskiewicz's testimony credible, whereas Applicant's and Mr. Stalnaker's testimony is not credible. Both Mr. Runyon and Mr. Jaskiewicz testified they did not make any promises to Applicant about his sentence. Furthermore, Mr. Runyon explicitly reviewed the consequences of the plea with Applicant and made Applicant aware of the potential sentences, as well as the possibility of consecutive sentences. Mr. Runyon also made it very clear to Applicant he could not determine what bis sentence would be.
Additionally, ABHAN is classified as a violent crime. S.C. CODE ANN. § 16-1-600. ABHAN is also a class C felony and, therefore, is defined as a “‘no parole
offense.'” See S.C. CODE ANN. § 16-1-90(C) (defining aggravated assault and battery as a class C felony); S.C. CODE ANN. § 24-13-100 (defining no parole offenses). Moreover, “an inmate convicted of a ‘no parole offense' ... and sentenced to the custody of the Department of Corrections. . . is not eligible for early release, discharge, or community supervision. . . until the inmate has served at least eighty-five percent of the actual term of imprisonment imposed.” S.C. CODE ANN. § 21-13-l5O(A). Based on the foregoing, this Court finds Applicant has failed to establish either Mr. Runyon or Mr. Jaskiewicz deficient.
Similarly, this Court finds Applicant has failed to establish any resulting prejudice from this alleged deficiency. The trial/plea record shows that Applicant communicated his understanding of his decision to enter a plea. (Id. at 280:18 -281:2). In fact, prior to making his plea, Applicant stated that he had an adequate amount of time to meet with his attorneys. (Id. at 280:12-17). The trial court informed Applicant ABHAN carried up to twenty years imprisonment and the weapons charge carried up to five years, and Applicant indicated he understood each of these potential sentences. (Tr. at 283:8-23). Applicant also understood he was entering a plea without recommendation or negotiation. (Id. at 283:12-23). Applicant also indicated be understood he could be sentenced to consecutive sentences. (Id. at 283:24 - 284:3). Moreover, Applicant informed the trial court no one had promised him anything or threatened him in order to induce his plea. (Id. at 281:3-8). Clearly, Applicant was aware of the potential sentences he faced and indicated no one had made any promises to him at the time of the plea and, therefore, entered into the guilty plea knowingly and intelligently. Accordingly, this Court finds this allegation must be denied and dismissed with prejudice.
E. Counsels' alleged failure to present evidence of self-defense and defense of others
Applicant further alleges counsels were ineffective for failing to present evidence of self-defense or defense of others. Specifically, Applicant contends he was on his property when Victim attacked him without any provocation by Applicant. Applicant further contends Victim was acting aggressively towards Ms. Jimenez, and Applicant acted in an effort to defend her.
With respect to self-defense, “a self-defense charge is not required unless it is supported by the evidence.” State v. Slater, 373 S.C. 66, 69, 644 S.E.2d 50, 52 (2007) (citing State v. Goodson, 312 S.C. 278, 280, 440 S.E2d 370, 372 (1994)). In order to establish a defense of self-defense, the defendant must: (1) be without fault in bringing on the difficulty; (2) have been in actual imminent danger of losing his life or sustaining serious bodily injury; (3) show that a reasonably prudent person of ordinary firmness and courage would have entertain the belief he was actually in imminent danger and the circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or death, if the defense is based upon a
defendant's belief of imminent danger; and (4) have had no other probable means of avoiding the danger. Id. at 69-70, 644 S.E2d at 52. A defendant “who provokes or initiates an assault cannot claim self-defense unless he both withdraws from the conflict and communicates his withdrawal by word or act to his adversary.” State v. Jackson, 384 S.C. 29, 36, 681 S.E.2d 17, 20-21 (Ct. App. 2009). Here, Applicant and Victim engaged in a fist fight (Tr. at 132:10-25). A neighbor broke up that fight, and both parties withdrew. (Id. at 133:17-24); (Id. at 145:13-15); (Id. at 199:16-22). Then, out of nowhere, Applicant jumped down from his balcony, knife in hand, and attacked Victim. (Id. at 136:4-7); Id. at 147:3-5). Applicant had no indication Victim was armed. (Id. at 72:4-5). As Applicant both reinitiated the fight and brought a weapon to what had previously been a fist fight, this Court finds no evidence of self-defense was presented at trial to warrant a charge on self-defense. Therefore, this Court finds Applicant has failed to establish any deficiency on the part of Mr. Runyon or Mr. Jaskiewicz.
With respect to defense of others, “one is not guilty of taking the life of an assailant who assaults a friend; relative, or bystander if that friend, relative or bystander would likewise have the right to take the life of the assailant in selfdefense.” State v. Starnes, 340 S.C. 312, 322-23, 531 S.E.2d 907, 913 (2000). Although Applicant contends he was defending Ms. Jimenez from Victim, no evidence was presented at trial to indicate Victim was attacking Ms. Jiminez. In fact, Ms. Jiminez testified at trial. she neither recalled Victim acting aggressively toward her nor getting in her face. (Tr. at 167:1-9). Similarly, Victim testified although he had no specific recollection, he would not have acted aggressively towards Ms. Jiminez. (Id. at 208:11-16). Therefore, this Court finds Applicant was not entitled to a charge on defense of others. Consequently, Applicant has failed to establish any deficiency on the part of counsels.
Similarly, this Court finds Applicant has wholly failed to establish any resulting prejudice from these alleged deficiencies. Applicant voluntarily made the decision to plead guilty; and during that plea, indicated the facts as presented were true. (Id. at 282:8-17). Applicant also waived his right to present his side of the story by pleading guilty. (Id. at 284:4-21). Based on all of the foregoing, this allegation must be denied and dismissed with prejudice.
F. Counsels' alleged failure to evidence of the toxicology report
Applicant contends counsels were ineffective for failing to introduce Victim's toxicology report at trial. Applicant specifically contends this toxicology report would have shown Victim was under the influence on the night of these crimes. Victim never denied imbibing in liquor on the evening of these crimes. Furthermore, on cross-examination of Victim, Mr. Runyon was able to elicit testimony that Victim was drinking at the Recovery Room until it closed and had taken approximately four or five shots of liquor that night. (Id. at 210:15 - 211:14). As Mr. Runyon was able to elicit testimony Victim was, in fact, intoxicated, this
Court finds Applicant has wholly failed to establish counsels were deficient.
Similarly, Applicant has wholly failed to establish any resulting prejudice from this alleged deficiency. At the evidentiary hearing, Applicant did not produce Victim's toxicology report but merely testified as to what he believed it would entail. Applicant's bare assertions, without more, do not give rise to the level of proof required for Applicant to meet his burden. Based on the foregoing, this Court finds that this allegation must be denied and dismissed with prejudice.
G. Counsels' alleged failure to present mitigation evidence
Applicant alleges counsels were ineffective for failing to present mitigation evidence at the plea. “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.” Wiggins v. Smith, 539 U.S. 510, 533 (2003). Here, Applicant, his mother and father, and his new girlfriend were all given ample opportunity to speak at the plea prior to sentencing. (See Tr. 291:23 - 294:3). Each of these individuals highlighted Applicant's good moral character and reputation. Furthermore, both Mr. Runyon and Mr. Jaskiewicz were able to highlight these attributes in Applicant as well. (See Tr. 289:10- 291:4); (Id. at 294:5-18). Given the mitigation presented prior to sentencing was extensive, this Court finds Applicant has wholly failed to establish any deficiency on the part of counsels or any resulting prejudice therefrom. This allegation must be denied and dismissed with prejudice.
H. Counsels' alleged failure to advise Applicant of his right to testify
Applicant alleges counsels failed to advise him of his right to testify. A criminal defendant has a constitutional right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 49 (1987). The decision on whether or not the defendant will testify ultimately rests with the defendant alone. Jones v. Barnes, 463 U.S. 745, 751 (1983). When a defendant chooses not to testify, “an on-the-record waiver of a constitutional or statutory right is but one method of determining whether the defendant knowingly and intelligently waived that right.” Brown v. State. 317 S.C. 270, 272, 453 S.E.2d 251, 252 (1994) (citing Myers v. State, 248 S.C. 359, 151 S.E.2d 665. (1966)). Here, the trial court fully advised Applicant of his right to testify at trial. (See Tr. 277:1 - 279:3). The record also indicates two extensive recesses were taken in order to provide Applicant with the opportunity to discuss his ability to testify with counsels. (Id. at 279:1-15). Following these recesses and after discussing his options with counsels, Applicant indicated he wanted to plead guilty. (Id. at 280:1-6). Moreover, Mr. Runyon testified he discussed Applicant's right to testify with him and explained to Applicant he would need to testify in order
to present his side of the story. He also testified Applicant chose not to testify, but rather chose to plead guilty. Accordingly, this Court finds Applicant has failed to show any deficiency or resulting prejudice with respect to counsels' alleged failure to adequately advise of Applicant regarding his right to testify. Accordingly, this allegation must be denied and dismissed with prejudice.
II. Involuntary Guilty Plea
Applicant further alleges his guilty plea was not voluntarily made. This Court finds Applicant's guilty plea was freely and voluntarily made. In evaluating issues concerning guilty pleas, this Court will consider the entire record, including the transcript of the guilty pleas and the evidence presented at the post-conviction relief hearing. Roddy v. State, 339 S.C. 29, 33, 528 S.E.2d. 418, 420 (2000). Voluntariness of a guilty plea is not merely determined by an examination of a specific inquiry by the plea court alone but rather is determined by the record of both the guilty plea proceeding and the post-conviction relief hearing. Id. In order to find a guilty plea was knowingly and voluntarily entered into, the record must establish the defendant had a full understanding of the consequences of his plea and the charges against him. Boykin v. Alabama, 395 U.S. 238, 244 (1969). Further, “[a] guilty plea is a solemn, judicial admission of the truth of the charges” against the applicant; thus, an applicant's right to contest the validity of such a plea is usually foreclosed. Dalton v. State, 376 S.C. 130, 137-38, 654 S.E.2d 870, 874 (citing Blackledge v. Allison, 431 U.S. 63 (1977)). Therefore, admissions “made during a guilty plea should be considered conclusive unless [an applicant] presents valid reasons why he should be allowed to depart from the truth of his statements.” Id. (citing Crawford v. United States, 519 F.2d 347 (4th Cir. 1975)); Edmonds v. Lewis, 546 F.2d 566, 568 (4th Cir. 1976).
This Court finds this allegation is without merit, and Applicant has failed to carry his burden of proving his guilty plea was involuntarily made. This Court further finds Applicant's plea was entered into freely and voluntarily. The record before this Court reflects that the plea court thoroughly reviewed all of Applicant's constitutional rights with him, including his right to a jury trial. (Id. at 284:4-21). Specifically, Applicant indicated he understood the jurors had only heard one side of the story, but he was willing to take the case away from the jury and plead guilty. (Id. at 283:3-7). Upon explanation of each constitutional right, Applicant indicated he understood and waived his constitutional rights. (Id. at 284:4-25). Applicant further indicated no one had promised him anything or threatened him in order for him to plead guilty. (Id. at 281:3-5); (Id. at 284:22-24). Additionally, Applicant indicated he was pleading guilty freely and voluntarily. (Id. at 284:25-285:2). Moreover, Applicant indicated he was satisfied with the services provided by both Mr. Runyon and Mr. Jaskiewicz, and they had done everything he asked of them. (Id. at 285:3-11).
Specifically, counsels testified they reviewed all discovery materials with Applicant, potential sentences, and reviewed all of the elements which the State would be required to prove at trial to Applicant. Moreover, counsels testified they were able to fully inform him of the consequences of his plea, his constitutional rights, and Applicant ultimately made the decision to plead guilty.
Therefore, this Court finds Applicant had a full understanding of the consequences of his plea and the charges against him, and the plea court correctly found Applicant's plea was freely, voluntarily, and intelligently made. Consequently, this allegation must be denied and dismissed with prejudice.
CONCLUSION
Based on all the foregoing, this Court finds and concludes that Applicant has not established any constitutional violations or deprivations that would require this court to grant his application. Therefore, this application for post-conviction relief must be denied and dismissed with prejudice.App. 499-512. Petitioner filed a motion to reconsider, alter or amend judgment on November 20, 2018, App. 513-19, which the court denied on January 15, 2019, App. 534-40.
One recess was taken from 10:45 am-11:30 am. A total of 45 minutes. The other recess was taken from 11:38 am- 12:01 pm. A total of 23 minutes.
Petitioner appealed the PCR court's order denying his PCR application, and Appellate Defender Taylor D. Gilliam, South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. ECF No. 18-4. Attorney Gilliam filed a petition for writ of certiorari in the South Carolina Supreme Court on September 5, 2013, raising the following issue:
Whether the PCR court erred in denying relief, where Petitioner received ineffective assistance of counsel when he pleaded guilty to two offenses mid-trial, where trial-turned-plea counsel advised him that he would be eligible for parole for his assault and battery of a high and aggravated nature and possession of a weapon charges, where counsel advised him that he would have to serve between fifty-five and sixty-five percent of the sentence, and where Petitioner is serving eighty-five percent of his sentence and is not eligible for parole?Id. at 3. The State filed a return on February 19, 2020. ECF No. 18-5. The South Carolina Supreme Court transferred Petitioner's appeal to the Court of Appeals on March 4, 2020. ECF No. 18-6. On August 19, 2022, the Court of Appeals denied the petition for writ of certiorari. ECF No. 18-7. The Remittitur was issued on August 19, 2022. ECF No. 18-8. Petitioner filed a second petition for writ of certiorari on September 21, 2022. ECF No. 18-9. The South Carolina Supreme Court dismissed Petitioner's petition on September 28, 2022. ECF No. 18-10. This Petition followed on April 3, 2023. ECF No. 1.
II. Discussion
A. Federal Habeas Issues
Petitioner states the following grounds in his petition:
Ground One: Ineffective Assistance of Counsel - violation of U.S. Constitution, amendments 5th, 6th, 14th, and of South Carolina State law
Supporting Facts: Counsel ineffective for (1) failing to properly advise petitioner to the consequences of his plea; (2) failed to present evidence of self defense and move for a stand your ground hearing, (3) for eliciting damaging testimony of state's witness on cross; (4) failed to introduce medical evidence, (5) failed to strike/remove juror when had conflict of interest
Ground Two: Involuntary Guilty Plea - violation of U.S. Constitutional rights 5th, 6th, 14th & state law
Supporting Facts: Petitioner would not have pled guilty had he known he would be ineligible for parole. Petitioner was never informed/made aware that upon entry of a guilty plea he would be statutorily ineligible for parole for the entirety of his sentence. Petitioner contends that trial counsel informed him that his guilty plea would result in a non-violent sentence, with eligibility for work release, that he would do 65% or less & be eligible for parole. The P.C.R. court & trial counsel both stated there is no way to know if an individual will or will not be eligible for parole. The Statute/law decrees petitioner ineligible 100%.
Ground Three: So if falls under the first ground ineffective assistance of counsel - eliciting damaging testimony, defense counsel did - violated U.S. Const. amend. 5th, 6th, 14th, & state law
Supporting Facts: Defense counsel pursued a line of questioning on a cross examination of a state's witness - defense ask the witness at least four
times what he heard. The witness stated on direct already he didn't hear anything - as I was saying, defense on cross asked multiple times & the witness stated he didn't hear anything - after asking four times - the witness finally said he heard the defendant say a derogatory word. Defense counsel stated at P.C.R hearing that he had no strategy for eliciting the testimony [See: attached transcript excerpts]ECF No. 1 at 5-11.
B. Standard for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); 14 Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's 15 case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[,]” it “must be objectively unreasonable,” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to statecourt factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential,” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 16 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
Where allegations of involuntary guilty pleas are concerned, the United States Supreme Court has held that a guilty plea is constitutionally valid if it “‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Hillv. Lockhart, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. at 31). “Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.” Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). A plea is knowingly and intelligently made if a defendant is “‘fully aware of the direct consequences' of his guilty plea and not induced by threats, misrepresentation, including unfulfilled or unfulfillable promises, or by “‘promises that are by their nature improper as having no relationship to the prosecutor's business.'” Brady v. United States, 397 U.S. 742, 755 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957)). Because a guilty plea is a solemn, judicial admission of the truth of the charges against an individual, a criminal inmate's right to contest the validity of such a plea is usually, but not invariably, foreclosed. Blackledge v. Allison, 431 U.S. 63, 74-75 (1977). Therefore, statements made during a guilty plea should be considered conclusive unless a criminal inmate presents reasons why he should be allowed to depart from the truth of his statements. Crawford v. United States, 519 F.2d 347 (4th Cir. 1975), overruled on other grounds by United States v. Whitley, 759 F.2d 327, 350 (4th Cir. 1985); Edmonds v. Lewis, 546 F.2d 566, 568 (4th Cir. 1976). Insofar as the review of claims of ineffective 17 assistance of counsel raised by persons who pleaded guilty is concerned, the United States Supreme Court has stated,
Hindsight and second guesses are also inappropriate, and often more so, where a plea has been entered without a full trial ....The added uncertainty that results when there is no extended, formal record and no actual history to show how the charges have played out at trial works against the party alleging inadequate assistance. Counsel, too, faced that uncertainty. There is a most substantial burden on the claimant to show ineffective assistance....Premo v. Moore, 562 U.S. 115, 132 (2011).
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[,]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal; or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains: [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly 20 after trial as the docket will allow, and while the attention of the appellate court is focused on his case. Reed v. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule[,]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 23, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray v. Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular 21 claim. Id. Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray v. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
1. Procedurally-Barred Grounds
Respondent argues all of the grounds raised in Petitioner's habeas petition are procedurally barred except for the claims raised in Petitioner's Ground One (1) and Ground Two claim. ECF No. 18 at 10-11. In Ground One, Petitioner argues his counsel was ineffective for (1) failing to properly advise petitioner to the consequences of his plea; (2) failing to present evidence of selfdefense and move for a stand-your-ground hearing, (3) for eliciting damaging testimony from the state's witness on cross; (4) failing to introduce medical evidence, and (5) failing to strike/remove juror when she had a conflict of interest. ECF No. 1 at 5. In Ground Two, Petitioner claims he entered his guilty pleas involuntarily. Id. at 9. In Ground Three, Petitioner claims his counsel was ineffective when he elicited damaging testimony from a state's witness during cross examination. Id. at 10-11. The undersigned finds the claims raised in Petitioner's Ground One (2) to (5) and Ground Three were not ruled upon by the South Carolina appellate courts and therefore are not preserved for review. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (holding issue not properly raised to state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas). Consequently, federal habeas review of these claims are barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
2. Cause and Prejudice
Petitioner has not offered any argument to show cause and prejudice to excuse the default of his Ground One (2) to (5) and his Ground Three claims. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
The existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's procedural rule. Murray, 477 U.S. at 488. Petitioner fails to articulate any cause for procedurally defaulting his Ground One (2) to (5) and his Ground Three claims. Petitioner had a portion of a trial and a plea hearing, an appeal, a PCR hearing, and a PCR appeal in which to raise these issues. However, he failed to raise or preserve these issues for habeas review. Petitioner therefore cannot establish cause and prejudice.
In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). To pass through the actual-innocence gateway, a petitioner's case must be “truly extraordinary.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The court's review of the record does not support a showing of actual innocence. Therefore, the procedural bar applies to the claims raised in Petitioner's Ground One (2) to (5) and his Ground Three claims.
2. Merits
In Ground One (1), Petitioner claims his counsels were ineffective when they failed to properly advise him of the consequences of his plea. ECF No. 1 at 5. In Ground Two, Petitioner argues his guilty plea was involuntary because his counsels misinformed him he would be eligible for parole. Id. at 9. Petitioner alleges his counsels told him he would only have to serve between 55% and 65% of the sentence imposed and he would be eligible for parole every year. Id. at 6. Petitioner contends he is statutorily ineligible for parole, and he is serving 85% of his ABHAN sentence, and day for day of his weapon charge sentence. Id. Petitioner claims if he would have known he was ineligible for parole, he would not have pled guilty. Id.
At the PCR evidentiary hearing, Petitioner testified after the State rested its case, his counsel informed him the State offered a plea deal. App. 356-57. Petitioner states he was told
I could plead guilty to assault and battery of a high and aggravated nature and that that -- and I asked my lawyers several times what that would mean. And they pronounced it as meaning that I would do non-violent, parole eligible, and work release eligibility.App. 357. Petitioner stated his father was present when his counsel was discussing the plea with him. App. at 357-58. Petitioner testified he had informed his previous attorney that he did not want to take a plea deal for ten years because he believed he would have to serve ten years day for day. App. 358. Petitioner stated, “at the time I was under the assumption I didn't understand that there was percentages and violent verse non violent.” Id. Petitioner was asked why did he plead guilty when there was no recommendation for sentencing on the table, and Petitioner testified:
Well, my counsel had informed me that they wouldn't give me the max, that they would most likely give me ten years on assault and battery of a high and aggravated nature and in turn they informed me that that meant I would only do about five years. But I would be eligible for parole every year starting with the first year. And I thought I would be an outstanding candidate for parole.App. 358-59. Petitioner testified his counsel informed him his sentence “would be non-violent and non-violent meant 55 percent or possibly could be worked down even further with certain programs or good time and good behavior.” App. 360. Petitioner stated when he pled guilty the judge did not give him any information about the severity of his offense or what the sentence entailed. App. 365-66.
Petitioner's father Eric Stalnaker testified he did not think Petitioner was going to serve the entire sentence, but would do six or seven years at the most. App. 385. Mr. Stalnaker stated the attorneys included him in the conversation about the plea. App. 386. Mr. Stalnaker testified he visited the SCDC website a few weeks after Petitioner was sentenced and he believed the information listed was incorrect. App. 386-87. Mr. Stalnaker stated he called Petitioner's counsels and relayed his concerns about the information that was listed for Petitioner on the SCDC website. App. 387.
Petitioner's co-counsel Attorney William Runyon testified Petitioner was originally indicted for attempted murder and he ended up pleading to ABHAN and weapon possession. App. 398-99. Attorney Runyon stated his understanding of the sentence exposure was there was no guarantee of what the sentence would be, and it was up to the judge. App. 399. Attorney Runyon was asked if he ever had a conversation with Petitioner that he only had to serve 55% or 60% of his sentence, and he stated
There was no conversation of what he would get because he could get - he could get the weapon charge stacked on top. And of course we didn't have any - I have to say this. Judge Young never said this is my usual practice or this is what I'm going to do or this is what I have done in the past. He just said here's the deal. He said I will take a plea. The only chambers conversation we had is he indicated he would take the plea. If the State offered that and we took it he wasn't going to deny the plea.
App. 400. Attorney Runyon was asked if he had a conversation with Petitioner about whether the conviction was a serious offense, 85% time, and he stated he did not recall having that conversation with Petitioner. App. 401. Attorney Runyon also testified he did not recall telling Petitioner he would only serve about six years or 55% if he received a ten-year sentence. Id. Attorney Runyon stated he did recall telling Petitioner that
what the Judge tells you may be what statutorily it says but when you get to the South Carolina Department of Corrections they have this strange computer that figures it out much, much differently. And so I don't think I've ever told anybody 55 percent of the time where you have two sentences that may be run consecutive because it just can't work that way as I recall. And if you check with the South Carolina Department of Corrections and the South Carolina Probation and Parole office they had two different companies do their programming for figuring times. And so those two programs don't coincide with each other. So you can't really tell somebody 55 percent of the time or 65 percent of the time. And then if you're talking about consecutive sentences who knows.App. 401-402. When asked if Petitioner's father was present during the conversation they had with
Petitioner about taking a plea, Attorney Runyon testified
Part of them. I don't recall them being present all the time but I can tell you that when it became clear that Chad was probably going to take the plea they came in because they needed to be part of the conversation.
Tr. 402. Attorney Runyon stated he did not recall having a conversation with Mr. Stalnaker tying the sentence down to serving 55%. Attorney Runyon testified:
But at the same time I'm not going to tell you I didn't try to quantify it. I mean I don't know how many times a year I have a conversation with people about what a sentence may be. But, I would say that there is no way that we can tell them what the sentence would be because when you have potential consecutive sentences because only the Judge is going to know what he's going to give him. And Judge Young never indicated a practice of running things concurrent or anything of that sort. So we were facing a consecutive sentencing at the worst.App. 406. Attorney Runyon stated he did not recall telling Mr. Stalnaker that the way Petitioner was classified or the percentage of the sentence he would serve was a mistake, but Attorney
Runyon indicated he would have told him to take it up with SCDC's classification office. App. 407-408. Attorney Runyon admitted he is aware that some inmates are classified as having to serve 85% of their sentence, but it depended on whether the judge in a weapon case ran the weapon charge consecutive. App. 408-409. Attorney Runyon denied he told Mr. Stalnaker that Petitioner's charge would be non-violent, not serious. App. 409. Attorney Runyon testified he informed Petitioner about the consequences of his plea and that he was facing the maximum penalty for aggravated assault plus five years for the weapon. App. 417. Attorney Runyon stated they also informed Petitioner they could not guarantee what the judge was going to do as he “never indicated what he was going to do sentence wise.” App. 417-18. Attorney Runyon testified he never promised Petitioner anything in regard to his plea, and he made him aware he was facing a consecutive sentence on both charges. App. 418. Attorney Runyon stated it was ultimately Petitioner's decision to plead guilty. Id. When asked if he had a specific conversation with Petitioner about his parole eligibility, Attorney Runyon testified
No. I can't recall a specific conversation about when his parole eligibility would be. I'm certain that someone would probably say can I be paroled, can I be you know but I don't recall that having come up; and particularly not in a situation where you might have a consecutive sentence.App. 422.
Co-counsel Attorney Stanley Jaskiewicz also testified at the PCR hearing. App. 427. Attorney Jaskiewicz testified they probed for a plea following testimony concerning the severity of the injuries to the victim after Petitioner stabbed him and Petitioner's girlfriend's testimony she did not remember what happened which weakened their defense of protection of a third party. App. 427-28. Attorney Jaskiewicz stated he and co-counsel informed Petitioner the State would allow him to plead to a lesser included offense, but co-counsel took the lead and explained the plea to Petitioner. App. 429-430. Attorney Jaskiewicz was asked if he recalled telling Petitioner about what his parole eligibility would be if he pled guilty to ABHAN, and counsel testified he never told Petitioner he would be eligible for 55% or 85% because he does not do that. App. 430. Attorney Jaskiewicz testified that prior to the trial his notes show Petitioner was not interested in a ten-year plea, but may consider a five-year, but counsel stated that was “before the horses were run.” App. 438-39. Attorney Jaskiewicz denied telling Mr. Stalnaker there was a mistake in Petitioner's sentence, and stated he did not believe there was a mistake. App. 439-40. Attorney Jaskiewicz stated he did tell Mr. Stalnaker he would look into it or call SCDC it there was something wrong. App. 440.
Mr. Stalnaker was recalled, and he testified he spoke with Attorney Jaskiewicz about the way Petitioner was classified on SCDC's website and that it stated Petitioner was not parole eligible. App. 451. Mr. Stalnaker stated he had a conversation with Petitioner's counsels, and he asked them questions while the plea deal was being considered. App. 453. Mr. Stalnaker stated they told him Petitioner would be parole eligible, and “they said 55 percent and it wasn't 55 percent. It was 85 percent.” Id. Mr. Stalnaker said when he called them on the phone and told them there was a problem with the parole eligibility, they told him it was a clerical error and Mr. Runyon said he would take care of it. Id.
The PCR court denied this Ground One (1) claim concerning counsels' failure to advise Petitioner of the consequences of his plea explaining Petitioner failed to establish his attorneys were deficient. App. 505. The PCR judge explained she found Attorneys Runyon and Jaskiewicz's testimony credible, and Petitioner and Mr. Stalnaker's testimony to not be credible. App. 504. The court noted both counsels testified they did not make any promises to Petitioner about his sentence, and that Attorney Runyon reviewed the consequences of the plea with Petitioner and made him 28 aware of his potential sentences, and the possibility of consecutive sentences. Id. The court found Attorney Runyon made it clear to Petitioner he could not determine what his sentence would be. Id. The court also explained that ABHAN is classified as a violent crime, and an inmate convicted of ABHAN is not eligible for early release until he has served 85% of the term of imprisonment imposed. App. 504-505. The court also found Petitioner failed to establish any resulting prejudice from this alleged deficiency as the record established Petitioner was aware of his potential sentences, and Petitioner indicated no one promised him anything at the time of the plea. App. 505. The PCR court also denied Petitioner's Ground Two involuntary guilty plea claim finding Petitioner's guilty pleas were made freely and voluntarily. App. 510.
In support of his summary judgment motion, Respondent contends the PCR court's denial of Petitioner's Ground One (1) and Ground Two claims was not unreasonable given the court's credibility determinations and the record before the court. ECF No. 18 at 27-28. Respondent notes Petitioner's counsels' testimony denying telling Petitioner he would receive a sentence classified as non-violent, only requiring 55% completion, and be eligible for parole or work release. Id. at 27. Respondent also points to Attorney Runyon's testimony he advised Petitioner of the potential sentencing exposure for each charge. Id. Respondent explains the court's findings that Petitioner was made aware of potential consecutive sentencing and that Petitioner stated no one made him any promises to induce his plea was consistent with the record and supported the court's finding of lack of prejudice. Id. at 28.
In his Response in Opposition, Petitioner claims the court is required to review the PCR court's decision de novo because the PCR court made no factual findings as to whether “the material misadvice that petitioner received and on which he relied on ‘was within the range of competency demanded by attorneys in criminal case.'” ECF No. 30 at 17. Petitioner cites to federal 29 circuit court caselaw that found a defendant must be made aware of his parole ineligibility prior to the entry of his guilty plea and argues the PCR court's failure to state that Petitioner was misinformed/uninformed that he would be completely ineligible for parole is an error for review under 28 U.S.C. § 2254. Id. at 19-21. Petitioner argues the majority of the circuits considering this question found that a defendant who is unaware at the time he entered a plea of guilty that he will be ineligible for parole does not make the plea knowingly, voluntarily, or intelligently made. Id. at 20. Addressing his ineffective assistance of counsel claim, Petitioner argues he succeeded in showing he received constitutionally ineffective assistance of counsel by showing counsel failed to properly advise him of the consequences of his plea and parole. Id. at 27. Petitioner also contends he suffered prejudice because but for counsel's failure to properly advise him of the consequences of his plea he would have continued to trial. Id. at 29. Petitioner argues there is not a significant difference between facing 25-years without parole (ABHAN) and 35-years without parole claiming they are both life sentences. Id.
In Reply, Respondent addresses Petitioner's contention that the proper standard of review in this matter is de novo because the PCR court provided no real basis for its dismissal of the petitioner's petition. ECF No. 31 at 1. Respondent contends the PCR court “asserted the proper and controlling law as to ineffective assistance of counsel claims following the guilty plea of a defendant.” Id. at 2. Respondent alleges the PCR court set forth extensive recitations of fact from both Petitioner's trial, plea, and PCR evidentiary hearing to support its findings of fact and conclusions of law. Id. at 1-2. Respondent contends the PCR court's findings of fact and applications of clearly established federal law must be reviewed under the normal doubledeference AEDPA standard of review. Id. at 2. Respondent also argues to the extent Petitioner is now arguing he was unaware of his parole ineligibility such an argument would be procedurally defaulted as it was not raised to the PCR court. Id. at 2-3.
In his Sur Reply, Petitioner states the arguments he is presenting are the same ones he raised in his PCR hearing and his habeas petition. ECF No. 33 at 3-4. Petitioner also reiterates the arguments raised in support of his Ground One (1) and Ground Two claims, and further states de novo review is the proper standard of review in this matter. Id. at 4-9.
As an initial matter, the undersigned finds Petitioner's arguments advocating for de novo review in this matter unavailing. De novo review of a habeas petition is only appropriate when there is a complete absence of a state court record on the issues raised in the habeas petition, which is not the case in this matter. See Winston v. Kelly, 592 F.3d 535, 553-54 (4th Cir. 2010) (“The only limitation on § 2254(d)'s [deferential standard of review] is that the claims submitted must have been ‘adjudicated on the merits' in state court. When a claim has not been adjudicated on the merits by the state court, a federal court reviews the claim de novo.”)."
Addressing Petitioner's ineffective assistance of counsel claims, the undersigned finds the PCR court reasonably found Petitioner failed to establish Attorneys Runyon or Jaskiewicz were deficient in advising Petitioner of the consequences of his plea. The trial/plea transcript and the evidence presented during the PCR hearing supports the PCR court's findings that Attorney Runyon reviewed the consequences of the plea and Petitioner's possible sentences including the possibility of consecutive sentences with Petitioner. The records also support the PCR court's findings that neither counsel made any promises to Petitioner about his sentence, and that Attorney Runyon informed Petitioner he could not determine Petitioner's sentence. Further, the PCR court's finding that Petitioner failed to establish any prejudice from the alleged deficiency also has support in the record. The PCR court explained Petitioner was aware of the possible sentences he could 31 receive and informed the court no one made him any promises at the time of the plea. The PCR court's factual findings are based, in part, on its assessment that Petitioner's and his father's testimony was not credible, while trial/plea counsels' testimony was credible. The PCR court's credibility determination is entitled to deference in this action. 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.”); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”). Petitioner may overcome this presumption of correctness only by showing “‘clear and convincing evidence to the contrary.'” Wilson v. Ozmint, 352 F.3d 847, 858-59 (4th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 240 (2003)). Petitioner has shown no cause to discount the PCR court's credibility determination. Accordingly, Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of this issue.
As to Petitioner's involuntary plea claim, the undersigned finds the record supports the PCR court's finding that Petitioner failed to establish his guilty plea was involuntary. The undersigned finds the PCR court's finding that counsels fully informed Petitioner of the consequences of his plea and his potential sentences is supported by evidence in the record. The undersigned further finds the record supports the PCR court's conclusion that Petitioner's plea was entered into freely and voluntarily. The PCR court noted the plea court thoroughly reviewed Petitioner's constitutional rights with him, including his right to a jury trial, and Petitioner indicated he wanted to enter a plea although the jury had only heard one side of the story. The PCR court also observed Petitioner indicated he was pleading guilty freely and voluntarily and Petitioner explained no one made him any promises to induce him to enter a plea. The PCR court 32 additionally noted Petitioner was satisfied with the services of his counsels. In light of the evidence presented, the undersigned finds the PCR court made reasonable findings of fact and reasonably applied federal law in denying Petitioner's involuntary guilty plea claim.
The undersigned finds Petitioner has failed to offer sufficient evidence to satisfy the Strickland and Lockhart tests. Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination. Petitioner has also failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding his ineffective assistance of counsel and involuntary guilty plea claims. The undersigned recommends Petitioner's habeas petition be dismissed.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's Motion for Summary Judgment, ECF No. 19, and the Petition be denied. If the court accepts these recommendations, Respondent's Motion to Strike, ECF No. 20, will be rendered moot.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).