MARY GORDON BAKER, Magistrate Judge.
The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondents' Motion for Summary Judgment. (Dkt. No. 16; see also Dkt. No. 15.)
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.
The Petitioner, through counsel, brought the instant habeas action on June 24, 2015. (See Dkt. No. 1.) On October 14, 2015, Respondents filed a Motion for Summary Judgment. (Dkt. No. 16; see also Dkt. No. 15.) Petitioner filed a Response in Opposition to that motion. (See Dkt. No. 18.)
The Petitioner is currently confined within the South Carolina Department of Corrections ("SCDC"). In May of 2009, the Cherokee County Grand Jury indicted Petitioner on the following charges: (a) accessory before the fact to felony murder, (b) accessory before the fact to felony burglary first degree (violent), and (c) accessory before the fact to felony armed robbery. (Dkt. No. 15-1 at 3-8 of 87.) Petitioner was represented by Fletcher Smith, Esquire. (See Dkt. No. 15-1 at 9 of 87.) On January 15, 2010, Petitioner pled guilty to accessory before the fact to felony burglary in the first degree and accessory before the fact to armed robbery before the Honorable J. Mark Hayes, II. (See Dkt. No. 15-1 at 9-29 of 87.) Pursuant to plea negotiations, "[t]here was a recommendation of a 25 year [sentencing] cap." (Id. at 12 of 87.) On January 15, 2010, Judge Hayes sentenced Petitioner to twenty years, concurrent, on each of the two convictions. (Dkt. No. 15-1 at 28 of 87.)
Petitioner did not file a direct appeal, but filed an application for post-conviction relief ("PCR") on January 14, 2011. (Dkt. No. 15-1 at 32-37 of 87.) The following questions and answers appeared in his PCR application:
(Dkt. No. 15-1 at 33-34 of 87.)
On January 31, 2012, an evidentiary hearing was held before Judge Frank R. Addy. (Dkt. No. 15-1 at 42-78 of 87.) Petitioner was present and represented by Beattie B. Ashmore, Esquire. (Dkt. No. 15-1 at 42 of 87.) In an order dated April 27, 2012, Judge Addy granted Petitioner's request for a review of direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974),
On August 20, 2012, Beattie Ashmore, Esquire, filed a Direct Appellate Brief Pursuant to White v. State. (Dkt. No. 15-5.) In this filing, Petitioner raised the following issues:
(Dkt. No. 15-5 at 5 of 14.) Also on August 20, 2012, Mr. Ashmore filed a petition for writ of certiorari, wherein he raised the following issues:
(Dkt. No. 15-4 at 2 of 12.)
On January 29, 2013, the Supreme Court of South Carolina transferred Petitioner's case to the South Carolina Court of Appeals. (Dkt. No. 15-8.) In an unpublished opinion filed June 30, 2014, the South Carolina Court of Appeals denied certiorari as to Petitioner's Questions One through Four, but granted certiorari as to Petitioner's Question Five and proceeded to a review of the direct appeal issues. (See Dkt. No. 15-9 at 2 of 2.) The South Carolina Court of Appeals concluded that because Petitioner did not object to his sentences at his plea hearing, the errors he attempted to assert were not preserved for review. (Id.) The lower court's decision was therefore affirmed, (Dkt. No. 15-9), and the matter was remitted to the lower court on July 17, 2014. (Dkt. No. 15-10.)
Petitioner then filed the instant habeas petition, wherein he raised the following grounds for review:
(Dkt. No. 1 at 6-8 of 16; see also Dkt. No. 1-1.)
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are `material' when they might affect the outcome of the case, and a `genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "`the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Since the 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, 322-23 (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:
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 398 (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." Williams, 529 U.S. at 410. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
As noted above, Respondents seek summary judgment in the instant case. (Dkt. No. 16; see also Dkt. No. 15.) For the reasons set forth herein, the undersigned recommends granting Respondents' motion.
In Ground One, Petitioner asserts that counsel was ineffective in "failing to investigate the circumstances of Petitioner's verbal statement to law enforcement." (Dkt. No. 1.) Petitioner asserts that as a result of counsel's ineffectiveness, Petitioner "received a heavier sentence than he should have." (Dkt. No. 1-1 at 11.) Petitioner received a 20-year sentence "as a violent offender, while co-Defendant Deal received a fifteen year sentence as a non-violent offender." (Id.) Petitioner asserts that at his plea and sentencing hearing, "the State contended a significant consideration for Deal's sentence was the fact that Deal went to the police the day of the incident and confessed." (Id.) Petitioner states,
(Dkt. No. 1-1 at 11-12.) Petitioner asserts that counsel's "failures were critical omissions that prejudiced Petitioner because they led directly to the trial court's imposition of a twenty year sentence instead of a sentence more like the fifteen year sentence given to Deal." (Id. at 12.)
In addressing Petitioner's claims raised before the PCR court, that court noted Petitioner raised the following allegations of ineffective assistance of counsel in his application:
(Dkt. No. 15-1 at 81 of 87.) The PCR court summarized Petitioner's testimony as follows:
(Dkt. No. 15-1 at 82-83 of 87.) The PCR court summarized counsel's testimony as follows:
(Dkt. No. 15-1 at 83 of 87.)
After addressing Petitioner's claim that counsel was ineffective for failing to file a direct appeal, and granting Petitioner a belated appeal, the PCR court addressed the remaining claims of ineffective assistance of counsel as follows:
(Dkt. No. 15-1 at 84-85 of 87.)
As noted above, Petitioner contends that counsel was ineffective in "failing to investigate the circumstances of Petitioner's verbal statement to law enforcement." (Dkt. No. 1.) Petitioner asserts that "a significant consideration for Deal's sentence was the fact that Deal went to the police the day of the incident and confessed," and the solicitor "emphasized this, arguing that Deal was the only one of the four co-defendants who gave an initial statement as to what had happened, and claiming that the State weighed that heavily in determining what Deal would be allowed to plead to." (Dkt. No. 1-1 at 11.) Petitioner asserts, however, that he also gave a verbal statement to police "on the same day of the incident" and "also confessed, at least in part, within hours of the incident." (Id. at 12.)
The undersigned recommends granting summary judgment to Respondents as to Ground One. Petitioner essentially asserts that because counsel did not present evidence of Petitioner's verbal statement, he received a harsher sentence than he would have received had counsel in fact presented this evidence. Petitioner asserts that, instead of the twenty-year violent sentence he received, he should have received a sentence more in line with co-defendant Deal's fifteen-year non-violent sentence. (See Dkt. No. 1-1 at 17-18.) Petitioner contends that the PCR court "applied the wrong law" in assessing his claim because his claim of ineffective assistance of counsel at sentencing does not fall under the purview of Hill v. Lockhart, 474 U.S. 52 (1985). (See Dkt. No. 1-1 at 1-2.) Petitioner asserts that the authority for his claims of ineffective assistance of counsel "were and are" Strickland v. Washington, 466 U.S. 668 (1984); Lafler v. Cooper, 132 S.Ct. 1376 (2012); and Glover v. United States, 531 U.S. 198 (2001). (See Dkt. No. 1-1 at 2.)
In Lafler, the United States Supreme Court addressed a claim of ineffective assistance of counsel where a "favorable plea offer was reported to the client but, on advice of counsel, was rejected." Lafler, 132 S. Ct. at 1383. After the plea offer in Lafler was rejected, the petitioner received a "full and fair trial before a jury," but he "received a sentence harsher than that offered in the rejected plea bargain." Id. The case came "to the Court with the concession that counsel's advice with respect to the plea offer fell below the standard of adequate assistance of counsel." Id. The Court addressed "how to apply Strickland's prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial." Id. at 1384. The Court stated, inter alia,
Lafler, 132 S. Ct. at 1384-85 (internal quotation marks and citations omitted).
The undersigned agrees that Hill v. Lockhart is not the governing standard for the claim raised in Ground One, as Petitioner is not challenging his guilty plea. See Glover v. United States, 531 U.S. 198 (2001) (applying Strickland to a claim of ineffective assistance of counsel in a noncapital sentencing proceeding and stating, inter alia, "Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance." (citations omitted)); see also Lafler, 132 S. Ct. at 1386 ("Even though sentencing does not concern the defendant's guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland prejudice because `any amount of [additional] jail time has Sixth Amendment significance.'" (quoting Glover, 531 U.S. at 203)); Strickland, 466 U.S. at 695 (1984) ("When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death."); Tucker v. Ozmint, 350 F.3d 433, 439 (4th Cir. 2003) ("Where the petitioner challenges a death sentence, `the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" (quoting Strickland, 466 U.S. at 695)). However, the undersigned has reviewed the transcript of the Petitioner's PCR hearing as well as the PCR court's order, and is not clear to the undersigned that Petitioner raised the exact claim to the PCR court that he raises in the case sub judice.
In his application for PCR, Petitioner alleged counsel was ineffective in the following particulars: "Failure to aid in the defendant's cooperation with the government; failure to file an appeal within 10 days; failure to adequately explore plea negotiations; failure to communicate with client; and other such issues that may be determined through the discovery process." (Dkt. No. 15-1 at 34 of 87.) Petitioner did not contend in his application that counsel was ineffective in failing to investigate or, more specifically, failing to investigate his verbal statement.
At the PCR hearing, Petitioner testified that he gave a verbal statement after the police arrested him on a trespassing charge. (Dkt. No. 15-1 at 49 of 87.) Petitioner testified that his discovery material did not contain "anything in there that reflects that [he] gave an oral statement." (Id. at 50.) Petitioner testified that his attorney did not tell the judge that he was the one responsible for finding the murder weapon, nor did he tell the judge that Petitioner "came in and . . . g[a]ve a statement implicating [himself] and the others." (Id. at 54.) Counsel testified that he did not recall Petitioner telling him about a verbal statement. (Id. at 66.) Counsel stated he was aware that Petitioner had given two statements and that, as to the first statement, law enforcement "found his statement to be non-credible and that he was lying to law enforcement." (Id. at 68.)
The PCR court addressed various claims of ineffective assistance of counsel, but nowhere did the PCR Court address a claim that counsel was ineffective in failing to investigate the circumstances of Petitioner's verbal statement to law enforcement. Thus, while Hill v. Lockhart is not the correct precedent to apply to the claims Petitioner raises before this court, the undersigned cannot say the PCR Court applied the wrong law to the claims the Petitioner actually raised in that court.
Nevertheless, Petitioner did raise the claim set forth in Ground One to the South Carolina Court of Appeals in his petition for writ of certiorari, and it appears the South Carolina Court of Appeals decided that claim on the merits. (See Dkt. No. 15-4 at 2, 5-6 of 12; see also Dkt. No. 18-1.) Petitioner is not entitled to habeas relief unless the state court's adjudication of the claim was contrary to, or an unreasonable application of, clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254.
The undersigned recommends concluding that Petitioner is not entitled to habeas relief on Ground One. While Petitioner contends that counsel was ineffective in failing to investigate a verbal statement, there is next to no information in the record about the contents of that verbal statement. Counsel had negotiated with the State to obtain a recommendation of a 25-year sentencing cap, and counsel argued for a fifteen-year sentence. (See Dkt. No. 15-1 at 12, 23-24 of 87.) Counsel asserted that Petitioner "at no time planned, executed, or had any intent to have that young man murdered." (Id. at 22.) Counsel argued, inter alia,
(Dkt. No. 15-1 at 22-24 of 87.)
After Petitioner's sister spoke, the prosecutor stated,
(Dkt. No. 15-1 at 26-27 of 87.) In response, Petitioner's counsel stated,
(Dkt. No. 15-1 at 27 of 87 (emphasis added).)
Thus, contrary to Petitioner's argument that counsel did not present evidence that Petitioner cooperated with law enforcement, counsel specifically argued that Petitioner "actually cooperated with the police as well." (Dkt. No. 15-1 at 27 of 87.) Additionally, Petitioner did not dispute the fact that he was not the first individual to cooperate with the police. At the PCR hearing, Petitioner admitted on cross-examination that he "didn't go to the police after the crime and . . . let them know that . . . someone had been killed by Mr. Byers." (Dkt. No. 15-1 at 59-60 of 87.) And while Petitioner asserted that he "was in the County" before Mr. Deal was (perhaps suggesting that Mr. Deal was not the first to alert police to the crime), Petitioner admitted that Mr. Deal is "how [police] determined that [Petitioner] w[as] . . . a suspect." (Id. at 60-61.) On these facts, the undersigned recommends concluding that Petitioner is not entitled to federal habeas relief on Ground One.
In Ground Two, Petitioner claims that counsel was "ineffective for failing to present important mitigating evidence at the plea and sentencing hearings." (Dkt. No. 1 at 8 of 16.) Specifically, Petitioner points to the following:
(Dkt. No. 1-1 at 12 of 21.) Petitioner asserts "[t]hese failures were critical omissions that prejudiced the Petitioner because they led directly to the trial court's imposition of a twenty year sentence instead of a sentence more like the fifteen year sentence given to Deal." (Id.)
Respondents contend this ground is procedurally defaulted. (See Dkt. No. 15 at 1, 16-18.) Respondents assert the claim is defaulted because while the claim "was arguably discussed at the PCR evidentiary hearing, it was not squarely raised in the PCR application and it was not specifically ruled upon by the PCR court." (Id. at 16.) Respondents assert the claim was not "raised and ruled upon by the PCR court," nor did Petitioner "present this claim to the South Carolina Supreme Court for review." (Id.)
On the other hand, Petitioner asserts that he fully exhausted his state court post-conviction remedies. (Dkt. No. 18 at 1.) Petitioner asserts the South Carolina Court of Appeals denied the petition for writ of certiorari "based on the merits of the post conviction claim," stating,
(Dkt. No. 18 at 1; see also Dkt. No. 18-1.) Petitioner contends his claims "were fully reviewed by the State Appellate Court." (Dkt. No. 18 at 2.)
"Federal habeas review of a state prisoner's claims that are procedurally defaulted under independent and adequate state procedural rules is barred unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice." Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008) (quoting McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000)). As the Fourth Circuit stated in Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004),
Longworth, 377 F.3d at 448.
Procedural default may be excused if the Petitioner "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." Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012). In the alternative for showing cause and prejudice, a petitioner may attempt to demonstrate a miscarriage of justice, e.g., actual innocence, Bousley v. United States, 523 U.S. 614, 623 (1998); see also Schlup v. Delo, 513 U.S. 298, 327 (1995), or abandonment by counsel. Maples v. Thomas, 132 S.Ct. 912, 924 (2012).
In the case sub judice, Petitioner clearly raised Ground Two in his petition for writ of certiorari. (See Dkt. No. 15-4.) And there was certainly some testimony related to Ground Two at the PCR hearing. At the PCR hearing, Petitioner testified that he came forth and told police what happened. (Dkt. No. 15-1 at 52 of 87.) In addition, Petitioner testified that he "disclosed to the police the location of the murder weapon," and the police found the shotgun based solely on information provided by Petitioner. (Id.) When the solicitor indicated that Mr. Deal got a fifteen-year non-violent sentence because "he came forth and told what happened," Petitioner testified that his attorney did not have a response to that and did not tell the judge that Petitioner was "the one responsible for finding the murder weapon." (Dkt. No. 15-1 at 54 of 87.) Petitioner complains that his attorney never told the police or the D.A. "the part that [Petitioner] played as far as . . . giving the D.A. information on, you know, not-not just [himself] but [his] codefendants as well." (Id. at 57 of 87.) Petitioner stated, "I-I came forth and told too." (Id.)
Even if the state court could have declined to hear Ground Two on the merits, it did not appear to do so. As Petitioner notes, the South Carolina Court of Appeals denied certiorari as to Ground Two, finding that "evidence supports the PCR court's dismissal of Petitioner's claims of ineffective assistance of counsel." (Dkt. No. 18-1 at 2.) Based on the foregoing, the undersigned recommends concluding that Ground Two is not procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 262-63 (1989) ("[A] federal claimant's procedural default precludes federal habeas review . . . only if the last state court rendering a judgment in the case rests its judgment on the procedural default." (citations omitted)); see also Thomas v. Davis, 192 F.3d 445, 453 (4th Cir. 1999) ("A state rule of procedure cannot command default of a claim asserted by a federal habeas petitioner unless the last state court to consider the claim actually relies on the rule to reject it." (citations omitted)).
As noted above, Petitioner is not entitled to habeas relief on Ground Two unless the state court's adjudication of the claim was contrary to, or an unreasonable application of, clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254. The undersigned recommends concluding that Petitioner is not entitled to relief as to Ground Two. As detailed above, contrary to Petitioner's arguments that counsel did not alert the sentencing judge that Petitioner had also cooperated, such a contention is contradicted by the record. Counsel specifically argued that Petitioner "actually cooperated with the police as well." (Dkt. No. 15-1 at 27 of 87.)
It is undisputed that counsel did not inform the sentencing judge that Petitioner assisted police in locating the gun. But the state court's rejection of this claim of ineffective assistance of counsel was not unreasonable. See Harrington v. Richter, 562 U.S. 86, 101 (2011) ("The pivotal question is whether the state court's application of the Strickland standard was unreasonable."). Counsel argued that Petitioner was "trying to stop a crime that was getting ready to go into progress." (Dkt. No. 15-1 at 23 of 87.) He argued several times that Petitioner should be sentenced to fifteen years, stating, inter alia, "[W]e believe [Petitioner] is less culpable than the man who got life and the man who got 25 years, and he is equally culpable as the man who got the 15 year[s] nonviolent. . . ." (Dkt. No. 15-1 at 24 of 87; see id. at 23 of 87.) When the solicitor pointed out that a "significant consideration" with respect to Mr. Deal was Mr. Deal went "to the police that day" and was "the one who basically explained what had happened and started the-helped the law enforcement significantly in getting the people who were responsible brought to justice," counsel responded that Petitioner "cooperated with police as well" and "gave two statements." (Dkt. No. 15-1 at 26-27 of 87.) Furthermore, while Petitioner asserted at the PCR hearing that he "was in the County" before Mr. Deal was (perhaps suggesting that Mr. Deal was not the first of the co-defendants to speak to police), Petitioner admitted that Mr. Deal is "how [police] determined that [Petitioner] w[as] . . . a suspect." (Dkt. No. 15-1 at 59-61 of 87.) In light of counsel's arguments to the sentencing judge, a fairminded jurist could certainly conclude that counsel's failure to disclose that Petitioner assisted police in finding the gun did not prejudice Petitioner. The undersigned therefore recommends granting summary judgment to Respondents as to Ground Two.
It is RECOMMENDED, for the foregoing reasons, that Respondents' Motion for Summary Judgment (Dkt. No. 16) be GRANTED and the Petitioner's habeas petition be DISMISSED WITH PREJUDICE. It is further RECOMMENDED that a certificate of appealability be denied.
IT IS SO RECOMMENDED.
28 U.S.C. § 2253. A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the case sub judice, the legal standard for a certificate of appealability has not been met. The undersigned therefore recommends that a certificate of appealability be denied.
