KAYMANI D. WEST, Magistrate Judge.
Petitioner Samuel T. Johnson 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. 26, 27. On December 27, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 28. On January 2, 2014, Petitioner filed a response in opposition to Respondent's Motion for Summary Judgment. ECF No. 32. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 27, be granted.
Petitioner is currently incarcerated in the Perry Correctional Institution of the South Carolina Department of Corrections ("SCDC"). In June 2008, Petitioner was indicted by a Colleton County Grand Jury for first degree burglary, armed robbery, four counts of kidnapping, and escape/attempted escape. App. 98-111.
On June 19, 2009, Petitioner filed an Application seeking post-conviction relief ("PCR"). App. 39-49. In his Application, Petitioner argued he was entitled to relief on the following grounds:
App. 41. In response, the State filed its Return dated February 25, 2010, and requested an evidentiary hearing. App. 50-55. On April 21, 2011, an evidentiary hearing was conducted in Colleton County before the Honorable D. Craig Brown. App. 57. At the hearing Petitioner was represented by J.D. Bryan, Esq., while the State was represented by Assistant Attorney General Matthew J. Friedman. Id. Petitioner and his former defense attorney, Harris Beach, testified at the hearing. App. 59-88. On May 13, 2011, the PCR court issued an order denying Petitioner relief and making the following findings of fact and conclusions of law:
App. 91-96. Petitioner filed a Notice of Appeal on August 2, 2011. ECF No. 26-4. Petitioner, represented by Robert M. Pachak of the South Carolina Commission on Indigent Defense, timely filed a Johnson
On August 24, 2012, Petitioner filed a Second PCR Application. ECF No. 26-12. In his Application, Petitioner argued he was entitled to relief on the following grounds:
Id. at 3. This action is currently pending.
Petitioner raises the following issues in his federal Petition for a Writ of Habeas Corpus, quoted verbatim:
ECF No. 1 at 5-10; ECF No. 1-3 at 1-2.
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, 322-23 (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 (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, 390-91 (4th Cir. 1990).
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 (1997); Breard v. Pruett, 134 F.3d 615 (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. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
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.
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
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) overruled on other grounds by U.S. v. Barnette, 644 F.3d 192 (4th Cir. 2011). 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)).
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:
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. Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 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)).
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 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.
As an initial matter, Respondent maintains that Ground One and the second claim in Ground Four ("Ground Four (b)") are procedurally barred from review because they were not ruled upon by the PCR court or properly presented to the South Carolina Supreme Court. ECF No. 26 at 17. Here, Petitioner raised Ground One in his PCR Application. ECF No. 26-12. However, PCR counsel failed to question him on Ground One during the PCR hearing, and the PCR court found Petitioner waived this Ground for relief. App. 96. Thereafter, Petitioner raised Ground One in his pro se petition to the South Carolina Supreme Court. ECF No. 26-8. Petitioner failed to raise Ground Four (b) in his PCR Application, and the PCR Court did not rule on Ground Four (b) in its order. ECF No. 26-12, App. 92-98.
In Martinez v. Ryan, the Supreme Court held that a habeas corpus petitioner asserting claims for ineffective assistance of counsel can demonstrate sufficient cause to excuse a procedural default upon a showing that counsel in the initial-review collateral proceeding was ineffective in failing to raise a claim that should have been raised below. 132 S.Ct. 1309, 1318 (2012). Here, Petitioner has demonstrated that he attempted to raise Ground One to the PCR court's attention and later to the South Carolina Supreme Court's attention. Therefore, the undersigned will review Ground One on the merits. See id. at 1320 (allowing a federal court to consider the merits of a claim that otherwise would have been procedurally barred).
"To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Id. at 1318. Although Petitioner has failed to demonstrate that his claim in Ground Four (b) is substantial, in an abundance of caution the undersigned will also address Ground Four (b) on the merits.
In Grounds One through Four, Petitioner alleges ineffective assistance of counsel. The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 (1970). In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court held that to establish ineffective assistance of counsel, a petitioner must show deficient performance and resulting prejudice. Counsel renders ineffective assistance when his performance "[falls] below an objective standard of reasonableness," but there is a "strong presumption" that counsel's performance was professionally reasonable. Id. at 688-89. Prejudice requires a showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. In the context of a guilty plea, ineffective assistance of counsel claims may be asserted in limited circumstances. In order to prevail on a claim of ineffective assistance of counsel pertaining to a guilty plea, a petitioner must show that his lawyer's performance was incompetent and "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Petitioner maintains that the sentence imposed by his plea court violates section 24-13-410 of the South Carolina Code. ECF No. 1 at 5. Specifically, Petitioner argues section 24-13-410 requires that he serve consecutive rather than concurrent sentences. Id. at 6. Moreover, Petitioner claims that "if and when the sentence is adjusted in accordance with the statutory mandated sentencing[,] he will be serving a total of thirty-five years which was not the terms of the negotiations. Thus, Petitioner is entitled to withdraw his plea." Id.
In addressing Ground One on the merits, Respondent argues that Petitioner failed to state a claim upon which federal habeas relief can be granted. ECF No. 26 at 22-23. Specifically, Respondent contends that Petitioner's claim concerns the wrongful application of section 24-13-410 of the South Carolina Code during his sentencing which falls outside the jurisdiction of this court. Id. Moreover, Respondent maintains that Petitioner cannot demonstrate he was prejudiced in any way based on the application of section 24-13-410. Id. at 23.
In discussing at the plea hearing whether Petitioner's sentences should run concurrent or consecutive, the Solicitor opined, "it's not required to be consecutive." App. 22. Petitioner's plea counsel then agreed with the Solicitor's opinion and informed the plea court that it was unnecessary to reference the section 24-13-410 directly because he was "satisfied that [the Solicitor] was correct." Id. Accordingly, the plea court sentenced Petitioner to twenty years' imprisonment on the three kidnapping charges and armed robbery charge and fifteen years' imprisonment for his escape charge with all sentences running concurrent. App. 36-37.
The undersigned finds that this court is prohibited from granting habeas relief unless the state court's decision contradicts, or is an unreasonable application of, "clearly established Federal law as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The terms of the sentence imposed by the plea court do not contradict and are not an unreasonable application of federal law as determined by the Supreme Court of the United States. Rather, the plea court based its ruling on a South Carolina statute concerning sentence terms for a person found guilty of escape. See S.C. Code Ann. § 24-13-410. "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, this court cannot conclude that the state plea court's determination on the issue was contrary to, or an unreasonable application of, clearly established federal law. See e.g., Bustos v. White, 521 F.3d 321, 325-26 (4th Cir. 2008) (holding that because there is no Supreme Court precedent establishing that parole ineligibility constitutes a direct, rather than a collateral, consequence of a guilty plea, there was no basis for determining that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law); see also Virsnieks v. Smith, 521 F.3d 707, 716 (7th Cir. 2008) (internal citation omitted) (stating that "there can be no Supreme Court precedent to be contradicted or unreasonably applied, and therefore no habeas relief, when there is no Supreme Court precedent on point or where the Court has reserved the question."). The undersigned must agree with the state court's application of its own law to the facts of this case and find that Petitioner's sentence was not unlawful or unconstitutional.
In any event, Petitioner has not demonstrated that he was prejudiced from the sentence imposed in accordance with the second prong of the Strickland test. See Strickland, 466 U.S. at 687 (requiring a petitioner show deficient performance and resulting prejudice). Section 24-13-410 requires a person serve fifteen years for an escape violation and "[t]he term of the imprisonment is consecutive to the original sentence and to other sentences previously imposed upon the escapee by a court of this State." Therefore, had the plea court imposed a fifteen year consecutive sentence rather than concurrent sentence for Petitioner's escape charge, Petitioner would be serving an additional fifteen years in prison. Instead, the plea court imposed concurrent sentences which allow Petitioner serve his sentences simultaneously. Therefore, Petitioner benefitted from the terms of his sentences. Accordingly, the undersigned also recommends granting Respondent's Motion for Summary Judgment concerning Ground One because Petitioner failed to demonstrate the prejudice prong of the Strickland test.
At the beginning of Petitioner's plea hearing, Solicitor Thornton requested that the address be changed on indictment number 2008-GS-15-426. App. 3. Additionally, Solicitor Thornton requested that the spelling of the victim's name in indictment number 2008-GS-15-428 be changed. Id. at 3-4. Plea counsel did not object. Id. Petitioner maintains that plea counsel had a duty to object to an amendment of an indictment which affected the place of the crime and the identity of the victim. ECF No. 1 at 8. Respondent argues that Petitioner has failed to demonstrate that the PCR court made an unreasonable determination of facts or unreasonably applied federal law. ECF No. 26 at 25. Therefore, Respondent maintains Ground Two should be denied. Id.
In South Carolina, an indictment may be amended if: "(1) it does not change the nature of the offense; (2) the amended charge is a lesser included offense of the original crime charged in the indictment; or (3) the defendant waives presentment to the grand jury and pleads guilty." State v. Fonseca, 681 S.E.2d 1, 4 (S.C. Ct. App. 2009). Here, the substance and nature of the crime charged was not affected by amending the indictment, and Petitioner was on notice of the changes to the indictment and indicated that he understood the nature of the charges against him during the plea hearing. App. 13, 16. In any event, Petitioner has failed to demonstrate that his plea counsel would have been successful had he lodged an objection. Therefore, the amendment did not prejudice him. See Almon v. U.S., 302 F.Supp.2d 575, 586 (D.S.C. 2004) ("There can be no ineffective assistance of counsel for failing to raise a claim which is not legally viable.").
The PCR court found that plea counsel testified that he did not object to the amendments of the indictments because the amendments merely corrected names and did not change the nature of the offense. App. 92. The undersigned finds that Petitioner cannot demonstrate that the PCR court unreasonably misapplied clearly established federal law in rejecting this claim, or that the PCR court made objectively unreasonable factual findings. A review of the guilty plea transcript and the testimony at the PCR hearing reveals that the PCR court's denial was fully supported by the record and was reasonable and therefore, it is entitled to deference here. Additionally, the PCR court found trial counsel's testimony to be credible and implicitly found Petitioner not to be credible. This credibility determination is also entitled to deference. Wilson v. Ozmint, 352 F.3d 847, 858-59 (4th Cir. 2003). Further, Petitioner has not clearly shown that the PCR court's credibility determinations were without support. See Elmore v. Ozmint, 661 F.3d 783, 850 (4th Cir. 2011) ("We must be `especially' deferential to the state PCR court's findings on witness credibility, and we will not overturn the court's credibility judgments unless its error is `stark and clear.'") (quoting Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010) and Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008)). Accordingly, the undersigned recommends that Respondent's Motion for Summary Judgment be granted as to Ground Two.
Petitioner argues that he received ineffective assistance of counsel because his plea counsel failed to move to suppress the gun allegedly used in the commission of the crime. ECF No. 1 at 9. Specifically, Petitioner maintains that a .380 semiautomatic gun is registered in his name and was in his possession rather than the 9 millimeter Larson pistol identified by the Solicitor during Petitioner's plea hearing. Id.
Respondent maintains that Ground Three is without merit because Petitioner has not shown that a state court made an unreasonable determination of the facts or unreasonably applied federal law in denying relief. ECF No. 26 at 27. Moreover, Respondent argues that Petitioner did not present any evidence during the PCR hearing that supports his allegation that law enforcement recovered a gun that was different from the gun mentioned at the plea hearing. Id. at 28. Based on Petitioner's failure to present evidence, Respondent contends he failed to make a prima facie showing that counsel was deficient. Id. Further, Respondent maintains that Petitioner did not establish that such a motion to suppress would have been successful, or that he would have chosen to go to trial but for counsel's failure to move to suppress. Id.
Here, Petitioner has failed to demonstrate that plea counsel was deficient in failing to move to suppress the gun. In the PCR hearing, Petitioner did not present any evidence to support his allegation that the gun recovered by law enforcement was different from the gun described in the plea hearing. Without demonstrating that the motion would have been meritorious, Petitioner cannot show his plea counsel was deficient. See Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (holding to establish deficient performance and prejudice in the context of a failure to file a motion to suppress, a petitioner must demonstrate that such a motion would have been successful). In any event, Petitioner has failed to demonstrate that he was prejudiced by the alleged deficient performance. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (holding a defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice); Sexton, 163 F.3d at 882.
The undersigned finds that Petitioner cannot demonstrate that the PCR court unreasonably misapplied clearly established federal law in rejecting this claim, or that the PCR court made objectively unreasonable factual findings. Accordingly, the undersigned recommends that Respondent's Motion for Summary Judgment be granted as to Ground Three.
Petitioner maintains that plea counsel did not conduct a thorough investigation and present Petitioner's alibi defense and witnesses. ECF No. 1-3. Respondent maintains that the PCR court did not make an unreasonable determination of the facts in denying relief upon this claim. ECF No. 26 at 29. Moreover, Respondent argues that Petitioner admitted that alibi witnesses were not available to testify at his PCR hearing. Id. Additionally, Respondent argues that Petitioner cannot show that the PCR Court unreasonably applied federal law in denying relief upon this claim. Id. at 30.
First, Petitioner has failed to demonstrate that his plea counsel was deficient pursuant to Strickland. At the PCR hearing, plea counsel testified that he looked into an alibi defense but that the alibi witnesses did not pan out. App. 83. On this issue, the PCR court found that plea "counsel properly investigated [Petitioner's] potential alibi witnesses [and] testified that these witnesses did not pan out." App 95. Based on this finding, the PCR court found Petitioner failed to prove the first prong of the Strickland test.
Second, Petitioner failed to demonstrate that he was prejudiced by plea counsel's failure to present alibi witnesses in his defense. Petitioner produced no witnesses or evidence in his PCR hearing to support his assertions that alibi witnesses would have been beneficial. Bassette v. Thompson, 915 F.2d 932, 939, 940-41 (4th Cir. 1990); see also Glover v. State, 458 S.E.2d 539, 540 (S.C. 1995) ("[B]ecause the other witnesses respondent claimed could have provided an alibi defense did not testify at the PCR hearing, respondent could not establish any prejudice from counsel's failure to contact these witnesses."); Underwood v. State, 425 S.E.2d 20, 22 (S.C. 1992) (finding prejudice from trial counsel's failure to interview or call witnesses could not be shown where witnesses did not testify at PCR hearing). Therefore, Petitioner did not prove the second prong of the Strickland test either.
The PCR court's rejection of the ineffective assistance of counsel claim for failing to conduct a thorough investigation and call alibi witnesses did not result in an unreasonable application of Strickland and was not based upon an unreasonable determination of facts in light of the state court record. Accordingly, the undersigned recommends Respondent's Motion for Summary Judgment be granted as to Ground Four (a).
Petitioner maintains his plea counsel was ineffective for failing to attack and/or challenge law enforcement's lack of probable cause for arrest, which further would have resulted in the introduction of "fruit from the poisonous tree" evidence. ECF No. 1-3 at 2. Respondent argues that this claim is procedurally defaulted and without merit. ECF No. 26 at 31. Specifically, Respondent maintains that Petitioner failed to demonstrate that plea counsel was deficient or that Petitioner was prejudiced from any deficiency. Id.
The undersigned finds that Petitioner cannot demonstrate a Strickland violation occurred. Petitioner never raised a valid challenge to the probable cause for his arrest during the PCR hearing. Therefore, he has failed to demonstrate that plea counsel was deficient for failing to challenge probable cause for Petitioner's arrest under the first prong of Strickland. See Sexton, 163 F.3d at 882.
Additionally, Petitioner failed to meet the requirements of prong two of Strickland. All of Petitioner's indictments were true-billed by the grand jury. Therefore, even if there were lack of probable cause for the initial arrest, sufficient probable cause existed to support the charges against Petitioner going to trial. See e.g., U.S. v. Soriano-Jarquin, 492 F.3d 495, 502 (4th Cir. 2007) ("This court has long held that the probable cause requirement may be satisfied either by a preliminary hearing or by indictment by a grand jury."); State v. McClure, 289 S.E.2d 158, 160 (S.C. 1982) ("The indictment itself constitutes a finding of probable cause and thus avoids the need for a preliminary hearing."). Accordingly, Petitioner failed to demonstrate that he suffered any prejudice from plea counsel's failure to challenge law enforcement's lack of probable cause for his arrest as required by prong two of the Strickland test.
Accordingly, the undersigned recommends that Respondent's Motion for Summary Judgment be granted as to Ground Four (b) because Petitioner cannot demonstrate that he received ineffective assistance of counsel under Strickland.
Therefore, based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 27, be granted and the Petition be denied.
IT IS SO RECOMMENDED.
