Opinion
C/A No.: 5:18-3046-RMG-KDW
04-11-2019
Gregory Fitzgerald Young, Petitioner, v. Scott Lewis, Respondent.
REPORT AND RECOMMENDATION
Gregory Fitzgerald Young ("Petitioner") is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 13, 14. On January 3, 2019, 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. 15. Petitioner failed to respond. The court issued an order on March 1, 2019, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to the motion by March 15, 2019. ECF No. 18. On March 14, 2019, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 20. Respondent filed a Reply on March 21, 2019. ECF No. 21.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 14, be granted, and this Petition be denied.
I. Background
Petitioner is currently incarcerated in the Perry Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the June 2014 and January 2015 terms of the Oconee County Grand Jury on two counts of criminal sexual conduct with a minor, first degree, (2014-GS-37-691, -692), and two counts of criminal sexual conduct with a minor, third degree (2015-GS-37-80, -81), App. 93-99. On January 15, 2015, Petitioner appeared before Judge Eugene C. Griffith, Jr., for a plea hearing. App. 1-17. Petitioner was represented by Attorney Suzanne E. Earle, and Solicitor Lindsey Simmons appeared on behalf of the State. Id. According to the facts presented by the solicitor, Petitioner, who was a friend of the victim's mother, was babysitting the nine-year old victim when he digitally penetrated her vagina and told her not to tell. App. 8. Petitioner waived presentment to the Oconee County grand jury of an indictment for criminal sexual conduct, second degree (2015-GS-37-880), and he entered a guilty plea to this charge. App. 2-3, 17. Judge Griffith sentenced Petitioner to 20 years. App. 17. Petitioner did not file a direct appeal. ECF No. 1 at 2.
Citations to "App." refer to the Appendix for Petitioner's guilty plea transcript and Post-Conviction Relief ("PCR") Proceedings. That appendix is available at ECF No. 13-1 in this habeas matter.
II. Procedural History
Petitioner filed an application for Post-Conviction Relief ("PCR") on August 20, 2015. (2015-CP-37-628). App. 23-28. Petitioner asserted he was being held in custody unlawfully for: "(a) Ineffective Assistance of Counsel.; (b) Due process Violation-failure of allocution; and (c) Failure to file an Appeal- failure file motion sentence re-consideration." App. 23. Petitioner filed an Amended PCR Application alleging due process violations, ineffective assistance of counsel, involuntary plea, and subject matter jurisdiction claims. App. 33-35, 37-44. The State filed a Return on May 25, 2017. App. 50-55.
A motion hearing convened on June 27, 2017, before the Honorable Jocelyn J. Newman. App. 57-79. Petitioner was present and represented by Attorney Rodney W. Ritchey, and Assistant Attorney General, Lindsey A. McCallister, appeared on behalf of the State. See id. Petitioner and plea counsel Attorney Suzanne Earle appeared and testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on July 31, 2017, making the following 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 and arguments presented at the PCR hearing. This Court has further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon their credibility. This Court has weighed the testimony accordingly. Set forth below are the relevant findings of fact and conclusion of law as required by S.C. Code Ann. Sec. 17-27-80 (2003).
Ineffective Assistance of Counsel
In a post-conviction relief action, the applicant bears the burden of proving the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). 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 v. Washington, 466 U.S. 668 (1984); Butler, 286 S.C. at 443, 334 S.E.2d at 814. The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. The courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689. Applicant must overcome this presumption in order to receive relief. Cherry v. State, 300 S.C. 115, 118, 386 S.E.2d 624, 625 (1989).
The reviewing court applies a two-pronged test in evaluating allegations of ineffective assistance of trial counsel. Id. at 117, 386 S.E.2d at 625. First, the applicant must prove that counsel's performance was deficient. Id. Under this prong, the court measures an attorney's performance by its reasonableness under professional norms." Id. (quoting Strickland v. Washington, 466 at 688). Second, counsel's deficient performance must have 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." Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. With respect to guilty plea counsel, Applicant must show that there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 (1985).
In PCR cases, an applicant asserting a constitutional violation must frame the issue as one of ineffective assistance of counsel. Al-Shabazz v. State, 338 S.C. 354, 363-64, 527 S.E.2d 742, 747 (2000) (citations omitted). An applicant alleging his guilty plea was induced by ineffective assistance of counsel must prove counsel's advice was not "within the range of competence demanded of attorneys in criminal cases." Lockhart, 474 U.S. at 56. Further, "[t]hat a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing." McMann v. Richardson, 397 U.S. 759, 770 (1970). Rather, "whether a plea of guilty is unintelligent ... depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases." Id. at 771.
The record must establish the defendant had a full understanding of the consequences of his plea and the charges against him. Dalton v. State, 376 S.C. 130, 138, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). A defendant's knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and "may be accomplished by colloquy between the court and defendant, between the court and defendant's counsel, or both." Roddy v. State, 339 S.C. 29, 34, 528 S.E.2d 418, 421 (2000) (citing State v. Ray, 310 S.C. 431, 437, 427 S.E.2d 171, 174 (1993)). 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, at 137-38, 654 S.E.2d at 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 (4th Cir. 1976)). "In considering an allegation on PCR that a guilty plea was based on inaccurate advice of counsel, the transcript of the guilty plea hearing will be considered to determine whether any possible error by counsel was cured by the information conveyed at the plea hearing." Id. at 138-39, 654 S.E.2d at 874 (citing Wolfe v. State, 326 S.C. 158, 165, 485 S.E.2d 367, 370 (1997)).
Applicant testified he felt Counsel should have arranged for a competency evaluation to be performed on him although he acknowledged he does not have a mental illness. Applicant testified he has difficulty with reading and writing and
has a hard time understanding. Applicant testified Counsel did not believe his version of events and refused to investigate Applicant's allegations that the victim was performing similar sexual acts with other children. Applicant further testified he was coerced into pleading guilty because Counsel told him at his bond hearing that he was facing a life sentence. Applicant further testified he did not want to plead guilty, but Counsel told him it was the best thing to do. Applicant testified he would have wanted a trial if Counsel had investigated his case. Finally, Applicant testified Counsel failed to file an appeal. Although Applicant admitted he never asked Counsel to do so, Applicant testified the judge at his bond hearing directed Counsel to file a PCR application on Applicant's behalf.
Counsel testified she has practiced law for approximately eighteen years, primarily focusing· on criminal work. Counsel testified she did not recall having a conversation with Applicant about obtaining a competency evaluation, but they did discuss Applicant's education level and the fact that he was in special education classes in school. Counsel testified she believed Applicant was competent, and Applicant understood all of their discussions and knew the difference between right and wrong. Counsel testified Applicant's story about what happened did not make any sense, and Applicant claimed he had confessed to protect another child. Counsel testified she went over all the State's evidence with Applicant, including his confession, and she explained to Applicant the alleged additional incidents between the victim and other people could not be introduced as evidence at a trial. Counsel testified Applicant wanted her to call witnesses to testify about the victim's prior sexual history. Counsel further testified after reviewing all the evidence, she concluded it was unlikely Applicant would be found not guilty at trial, and she advised him a conviction was likely. Counsel testified Applicant did not firmly maintain his innocence, and his version of the story changed several times, including differences between what he told her and what he told law enforcement. Counsel testified Applicant could have received a life sentence as he was originally charged with CSC -first degree, but he pleaded guilty to CSC - second degree, which was a lesser offense, to avoid the possibility of a life sentence. Finally, Counsel testified she did not believe Applicant had ever asked her to file an appeal, and she explained the "extraordinary circumstances" standard to him and informed him she did not see any in this case. Counsel produced a letter she sent to Applicant explaining he had ten days from the date of his plea to file an appeal, there needed to be extraordinary circumstances, and she did not plan to file a notice on his behalf.
Regarding Applicant's claim his guilty plea was induced by ineffective assistance of counsel, this Court finds Applicant has failed to meet his burden of proof. This Court finds Applicant's testimony regarding Counsel's ineffectiveness is not credible, while also finding Counsel's testimony is credible. This Court finds Counsel provided effective assistance in this case, and Applicant's decision to plead guilty was made freely and voluntarily. Counsel is a trial practitioner who had experience in the trial of criminal offenses. Counsel
conferred with Applicant to discuss the pending charges, the State's evidence, possible defenses and courses of action, and answered all of Applicant's questions. This Court finds Applicant presented no evidence he asked for an appeal or motion for reconsideration. This Court finds credible Counsel's testimony she felt he had no grounds to support an appeal, and the record reflects she informed Applicant she did not plan to file a notice of appeal on his behalf. Finally, this Court finds Applicant presented no evidence of incompetency which would support a finding that Counsel was deficient for failing to obtain an evaluation prior to Applicant's guilty plea. See Jeter v. State, 308 S.C. 230, 232, 417 S.E.2d 594, 596 (I992) (Applicant "is required to show by a preponderance of the evidence he was incompetent at the time of his plea").
Additionally, this Court finds the record reflects Applicant's plea was entered freely, voluntarily, knowingly, and intelligently. The plea judge explained the charges to Applicant in detail, including the maximum penalty, and the State's recommendation of a twenty-year sentence. The plea judge explained Applicant's constitutional rights and questioned Applicant as to whether he understood those rights and wished to give them up to plead guilty. Applicant agreed that he did. Applicant admitted he was guilty of the offense and agreed with the facts presented by the State at the plea. Applicant told the plea judge he was satisfied with his attorney, and he did not need any more time to discuss this matter with Counsel. Applicant further told the plea judge no one had threatened him or made him any promises to get him to plead guilty, and he was doing so of his own accord, Additionally, Applicant explained to the plea judge his educational limitations and stated he had a hard time understanding consequences, and the plead judge thoroughly questioned Applicant a second time as to whether Applicant understood the plea and the nature of the decision he was making. Applicant indicated he understood all of the plea judge's questions, and Counsel had fully explained the agreement to him. This Court therefore finds that Applicant understood the terms of the plea, and it was knowingly entered into of Applicant's own free will.
Therefore, this Court finds Applicant has failed to prove the first prong of the Strickland test - that Counsel failed to render reasonably effective assistance under prevailing professional norms. Applicant failed to present compelling evidence that Counsel committed either errors or omissions in his representation of Applicant. By Applicant's own admission, he has not been diagnosed with a mental illness, and Applicant introduced no evidence to meet his burden of proving he was incompetent at the time of the plea or the time of sexual acts. Court also finds Applicant has failed to prove the second prong of Strickland - that he was prejudiced by counsel's performance, as Counsel negotiated a twenty-year sentence to a lesser offense, sparing Applicant from the possibility of a life sentence, and additional charges were dismissed.
This Court also finds that the record fully supports the knowing and voluntary nature of Applicant's guilty plea. See Roddy v. State, 339 S.C. 29, 34,
528 S.E.2d 418, 421 (2000) (holding defendant's knowing and voluntary waiver of statutory or constitutional rights in a·guilty plea "must be established by a complete record, and may be accomplished by colloquy between court and defendant, between court and defendant's counsel, or both."). In addition, Applicant has presented no evidence or valid reasons why he should be allowed to depart from the truth of his statements made at the plea. See Dalton, 376 S.C. at 137, 654 S.E.2d at 874 ("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."). This Court concludes Applicant has not met his burden of proving Counsel failed to render reasonably effective assistance. The allegation is denied and dismissed.
CONCLUSION
Based on all the forgoing, this Court finds and concludes Applicant has not established any constitutional violations or deprivations before or during his plea and sentencing proceedings. Counsel was not deficient, nor was Applicant prejudiced by Counsel's representation. Therefore, this PCR application must be denied and dismissed with prejudice.
The Court notes Applicant must file and serve a notice of appeal within thirty days from receipt of written notice of entry of judgment to secure the appropriate appellate review. See Rule 203, SCACR. Pursuant to Austin v. State, 305 S.C. 453,409 S.E.2d 395 (1991), Applicant has a right to appellate counsel's assistance in seeking review of the denial of post-conviction relief. Rule 71.1(g), SCRCP, provides that if Applicant wishes to seek appellate review, Applicant must serve and file a notice of appeal on his own behalf. Applicant is directed to South Carolina Appellate Court Rule 243 for appropriate procedures for appeal.
IT IS THEREFORE ORDERED:
1. The application for post-conviction relief be denied and dismissed with prejudice; andApp. 83-90. PCR counsel filed a Notice of Appeal on August 2, 2017. ECF No. 13-2. Appellate Defender Victor R. Seeger represented Petitioner on appeal, filing a Petition for Writ of Certiorari in the South Carolina Supreme Court. ECF No. 13-3. The petition presented the following issue: "Whether the judge erred when she denied Petitioner's application for post-conviction relief where plea counsel failed to hire an independent doctor to evaluate Petitioner or to request a competency evaluation by the court despite being aware of Petitioner's incompetency?" Id. at 3. On September 21, 2018, the South Carolina Supreme Court denied the Petition for Writ of Certiorari, ECF No. 13-4, and issued the remittitur on October 11, 2018, ECF No. 13-5. This Petition followed on November 9, 2018. ECF No. 1.
2. Applicant be remanded to the custody of Respondent.
III. Discussion
A. Federal Habeas Issues
Petitioner raises the following issues in his Federal Petition for a Writ of Habeas Corpus, quoted verbatim: Ground One: Plea counsel failed to hire an independent doctor to evaluate Petitioner or request a competency hearing despite being aware of Petitioner's incompetency.
Supporting Facts: The Plea counsel provided ineffective assistance because despite evidence that Petitioner's competency was at issue, she did not hire an expert to evaluate Petitioner nor did she request the court for a competency evaluation by the Department of Mental Health.
Furthermore, the Petitioner presented evidence that showed plea counsel was on notice about Petitioner's mental competency being at issue. During the plea hearing the judge asked Petitioner if he was satisfied with advice from his counsel. Petitioner responded, "I tried to understand what she was talking about," indicating his difficulty understanding the consequences in the matter. App. 13, ll. 15-16. Further, Petitioner then explained that he was diagnosed by his doctor, "Christy Heel," with a sleeping disorder that affects his memory. App. 16, ll. 2-5.
Furthermore, during sentencing, plea counsel informed the court that Petitioner was enrolled in special education classes all throughout school. App. 15, ll.14-16. Also, the plea counsel requested that court to consider his lack of capacity as a factor in sentencing, "I would ask you to take into consideration that he does have difficulty understanding what he's charged with, what the consequences may be," which showed counsel knew of mental difficulties of Petitioner. App. 15, ll. 19-23. Additionally, at the PCR, plea counsel testified she did recall however that Petitioner informed her of his limited education and limited ability to understand. Again, all of
this information put plea counsel on notice that Petitioner's mental competency was called into question. Her failure to hire a doctor to conduct an evaluation or to move the court for a competency evaluation constituted ineffective assistance of counsel.ECF Nos. 1 at 5; 1-1 at 2-4.
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); 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 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 state-court 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 § 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.'" Hill v. 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 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). If the PCR court fails to address a claim as is required by section 17-27-80 of the South Carolina Code, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007). 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 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, 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 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, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
IV. Analysis
A. Merits
In Ground One, Petitioner alleges his trial counsel was ineffective when she failed to have his mental competency evaluated despite being aware of facts that called his mental competency into question. ECF No. 1 at 5.
Respondent contends the evidence in the record reflects that Petitioner was competent and entered into his plea freely and voluntarily. ECF No. 13 at 10-15.
At the PCR hearing, Petitioner testified he could not read or write, and he tried to get an evaluation, but his counsel did not get him one. App. 60. Petitioner said he did not understand all the questions the judge asked him during his plea hearing. App. 63. When asked if he understood his discussions with his counsel, Petitioner stated
No, that's when - - I didn't really want to, you know, plead, but she kept saying that 'this might be the best thing for you.' So I didn't know what to do, so I did it. . . .App. 64-65.
I didn't really know what to do about it. Like I said, a lot of stuff in my case wasn't looked at and my rights and stuff was violated, and I didn't know what to do.
Trial Counsel testified she believed Petitioner was competent to stand trial and he understood their discussions about the case, although he informed her that he had a limited education, a limited ability to understand, and had received a certificate of attendance after 12 years of special education classes. App. 67-68. When asked about a competency evaluation, Counsel testified she did not believe an evaluation was necessary because Petitioner fully understood the charges against him and could distinguish between right and wrong. App. 75-76.
In rejecting Petitioner's claims about the need for a competency evaluation, the PCR court found Petitioner failed to present any evidence of incompetency which would support a finding that counsel was deficient for failing to obtain an evaluation. App. 88.
In his response, Petitioner contends he presented evidence of his incompetency by testifying about his special education classes and his diagnosis with a sleeping disorder that affected his memory. ECF No. 20 at 1, 3. Petitioner also points to statements he made during his plea hearing that he had difficulty understanding the plea proceedings or his discussions with counsel. Id. at 1-2.
Addressing Petitioner's ineffective assistance of counsel claim, the undersigned finds the evidence presented at the hearing supports the PCR court's finding that Petitioner did not present any evidence that he was incompetent at the time of the plea or sexual acts. The PCR court reasonably found Petitioner was not prejudiced by his counsel's performance as counsel negotiated a plea where Petitioner's pending charges were dismissed, and he pled guilty to a lesser offense thereby avoiding a life sentence. The PCR court's factual findings are based, in part, on its assessment that counsel's testimony was more credible than that of Petitioner. The PCR court's credibility determination is entitled to deference in this action. Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)) ("[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 (4th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Petitioner has shown no cause to discount the PCR court's credibility determination and the undersigned can find no basis in the record on which to overturn the state court decision.
Insofar as Petitioner raises the involuntariness of his guilty plea, the undersigned finds Petitioner chose to enter a guilty plea freely and voluntarily. A guilty plea must represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant," North Carolina v. Alford, 400 U.S. 25, 31 (1970), and may be invalid if it was induced by threats or misrepresentations. See Brady v. United States, 397 U.S. 742, 755 (1970). However, a defendant's statements at the guilty plea hearing are presumed to be true. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Unsupported allegations on appeal or in a collateral proceeding are insufficient to overcome representations made during the guilty plea hearing. See Via v. Superintendent, Powhatan Corr. Ctr., 643 F.2d 167, 171 (4th Cir. 1981) (holding that statements at plea hearing that facially demonstrate plea's validity are conclusive absent compelling reason why they should not be, such as ineffective assistance of counsel).
At his plea hearing, Petitioner stated he understood why he was there; that he had a right to a jury trial, right to confront witnesses, right to testify, and the right to remain silent; he understood he was giving up those rights; he understood that the State would bear the burden of proving his guilt; he understood the charges he was facing and the benefit he was getting by entering a guilty plea; he acknowledged his guilt to the facts recited by the solicitor; he understood his conversations with his counsel; he entered the guilty plea voluntarily, of his own free will; and he plead guilty because he was guilty. App. 5-14. During trial counsel's statement of mitigation, Petitioner informed the court that he had a sleep disorder that affected his memory. App. 16. In response to Petitioner's statements, the judge asked Petitioner additional questions and Petitioner stated he understood that he was pleading to criminal sexual conduct, second degree; that the other four charges were being dismissed; and that was what he wanted to do. App. 16-17. 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 the state court did not unreasonably apply the mandates of Strickland. Petitioner has failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding his involuntary guilty plea and ineffective assistance of counsel claims. Additionally, Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination of these issues given the evidence and record before it. Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (holding that federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding); Williams v. Taylor, 529 U.S. 420 (2000); Bell v. Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000); 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). Accordingly, Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of these issues. The undersigned recommends Petitioner's habeas petition be dismissed.
III. Conclusion and Recommendation
Therefore, based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 14, be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED. April 11, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
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).