JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on Respondent's motion for summary judgment [Doc. 22]. Petitioner, proceeding pro se, is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on June 21, 2013.
Petitioner is presently confined and serving his sentence at Kershaw Correctional Institution ("Kershaw"). [Doc. 1 at 1.] In August 1999, a Richland County grand jury indicted Petitioner for two counts of armed robbery, assault and battery with intent to kill, two counts of possession of a firearm or knife during commission of or attempt to commit violent crime, two counts of kidnapping, and criminal sexual conduct in the first degree. [Doc. 21-28.] Petitioner proceeded to trial, represented by John Shupper ("Shupper"), and was found guilty of all charges in September 2009 [Doc. 21-27 at 8.] Judge Costa M. Pleicones sentenced Petitioner to thirty years for the criminal sexual conduct charge, ten years for armed robbery (to be served consecutively), thirty years for the second armed robbery charge (to be served concurrently), thirty years for kidnapping (to be served concurrently), ten years for assault with intent to kill (to be served concurrently), and five years on each possession of firearms charge (to be served concurrently), for a total of forty years. [Id. at 30-31.]
Petitioner timely filed and served a notice of appeal. On September 13, 2000, Wanda H. Haile of the South Carolina Office of Appellate Defense filed an Anders brief
Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on August 8, 2001 [Doc. 21-27 at 46.] Petitioner raised the following grounds for relief:
In support of this issue, Petitioner alleged trial counsel failed to obtain the assistance of experts, erroneously advised Petitioner not to take the stand, failed to file a motion to quash the indictments, and failed to properly object to jury instructions. [Id. at 51.]
Petitioner alleged appellate counsel failed to advise Petitioner of the right to request a rehearing, failed to adequately raise the preserved issue of severance, failed to raise the preserved issue of speedy trial, and failed to raise the preserved issue of a directed verdict.
On January 7, 2005, represented by Tara Dawn Shurling ("Shurling"), Petitioner filed an amended PCR application. In the amended application, Petitioner raised eleven issues for review (quoted verbatim):
A hearing was held on the PCR application on January 14, 2005, where Petitioner was represented by Shurling. [Doc. 21-27 at 64.] Testimony was received from Petitioner and from Shupper. [Id. at 65.] On August 19, 2005, the PCR court filed an order denying and dismissing the application with prejudice. [Doc. 21-27 at 170-76.] After examining each of Petitioner's claims, the PCR court's order concluded the Petitioner "has not established any constitutional violations or deprivations that would require this court to grant his application..." [Doc. 21-7 at 176.] The PCR court's order did not address the ineffectiveness of appellate counsel, but Petitioner did not file a South Carolina Rule of Civil Procedure Rule 59(e) motion to alter or amend the judgment. [Doc. 21 at 4.]
A notice of appeal was timely filed and served. [Doc. 21-4.] On February 27, 2008, Eleanor Duffy Cleary ("Cleary") of the South Carolina Commission on Indigent Defense filed a petition for writ of certiorari on Petitioner's behalf in the South Carolina Supreme Court, seeking review of the PCR court's decision and raising the following issue:
[Id.] The Supreme Court of South Carolina transferred the matter to the South Carolina Court of Appeals, which granted certiorari and directed the parties to brief the issues. [Doc. 21-6.] The Court of Appeals heard oral arguments and issued an unpublished opinion on October 27, 2011, affirming Petitioner's convictions and sentences. [Doc. 21-10.] Petitioner filed a petition for rehearing, which was denied on December 20, 2011. [Id. at 20-21.] Petitioner then filed a petition for writ of certiorari to the South Carolina Supreme Court, which was granted on April 3, 2012, but subsequently dismissed as "improvidently granted" on November 21, 2012. [Doc. 21-17.] Remittitur was issued on December 7, 2012. [Doc. 21-18.]
As stated, Petitioner filed this Petition for writ of habeas corpus on June 21, 2013, pursuant to 28 U.S.C. § 2254. [Doc. 1.] Petitioner asserts the following grounds for relief, quoted verbatim:
[Doc. 1 at 6-23.]
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). "Only 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." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
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
28 U.S.C. § 2254(d). "[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 v. Taylor, 529 U.S. 362, 410 (2000). "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," and "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 131 S.Ct. 770, 786 (2011). 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. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to 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:
28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 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 court 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 postconviction relief ("PCR"). State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment. S.C. R. Civ. P. 59(e). Failure to do so will result in the application of a procedural bar to that claim by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007).
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the highest South Carolina court through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the court actually reached the merits of the claim.
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 17-27-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3) & 243. 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. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:
Reed, 468 U.S. at 10-11.
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, 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). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
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. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Sykes, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman, 501 U.S. at 735 n.1; Teague, 489 U.S. at 297-98; George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
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—where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure or where a "fundamental miscarriage of justice" has occurred. Coleman, 501 U.S. at 750; 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 hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. 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 to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
As an alternative to demonstrating cause for failing to raise the claim, the petitioner may show a miscarriage of justice. To demonstrate a miscarriage of justice, the petitioner must show he is actually innocent. See Carrier, 477 U.S. at 496 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of someone who is actually innocent"). Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). To demonstrate this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
As an initial matter, Respondent does not argue that Petitioner's habeas request is untimely. Respondent also concedes that Ground One has been properly exhausted, but argues that the remaining seven grounds are procedurally barred. Upon review, the Court agrees.
Procedural default is an affirmative defense that is waived if not raised by respondents. Gray v. Netherland, 518 U.S. 152, 165-66 (1996). It is a petitioner's burden to raise cause and prejudice or actual innocence; if not raised by the petitioner, the court need not consider the defaulted claim. Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir. 1995). Here, Respondent argues Petitioner's grounds for relief are procedurally defaulted because they were not presented to the South Carolina Supreme Court through Petitioner's petition for writ of certiorari following the denial of his PCR application. [Doc. 21 at 30-42.] For the reasons explained below, the Court agrees that Grounds Two through Eight are procedurally defaulted.
Petitioner did not raise any grounds from his direct appeal to the South Carolina Supreme Court, therefore no claims were exhausted through this mechanism. As noted, the only claim that Petitioner raised in his PCR appeal was:
[Doc. 21-4.] Therefore, only Ground One of Petitioner's habeas application has been exhausted and the remaining grounds are procedurally barred from federal habeas review absent a showing of cause and actual prejudice. See Coleman, 501 U.S. 722 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review); Wainwright, 433 U.S. at 87; Matthews, 105 F.3d at 915.
The existence of cause must ordinarily turn on whether the petitioner can show some objective factor external to the defense impeded counsel's or the petitioner's efforts to comply with the state's procedural rule. Murray, 477 U.S. at 488. In this case, Petitioner has failed to articulate cause for procedurally defaulting on these seven grounds for habeas relief. Petitioner filed a petition for writ of certiorari in which these issues could have been raised; however, these issues were not raised in Petitioner's petition for writ of certiorari to the South Carolina Supreme Court, even though the speedy trial issue was properly raised. Petitioner argues that the bar on Ground 2 should be lifted because he "personally desired and sought to have each and every issue that was raised in the PCR hearing also raised on appeal. But was told by [PCR] appellate counsel that it was her choice of which issues to submit and that Petitioner could not submit his won [sic] legal arguments." [Doc. 32 at 46.] Because appellate counsel submitted a merits brief, Petitioner could not submit a brief on his own behalf as he would have been able to do had appellate counsel filed a Johnson petition, representing that there was no meritorious ground for appeal. [See id.]
In Martinez, the Supreme Court held that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. at 1315. The Court elaborated,
Id. at 1318. Accordingly, Petitioner may establish cause for the default of Ground Two if he demonstrates his PCR counsel was ineffective and that the underlying ineffective assistance of trial counsel claim is a substantial one, i.e., it has some merit. However, the Court in Martinez did not extend its holding to PCR appellate counsel, but only counsel in initial review collateral proceedings. Cunningham v. Cartledge, 5:11-cv-1037-JMC-KDW, 2012 WL 4006683, at *13 (D.S.C. Jun. 27, 2012).
Even if the Court did consider the claim against Cleary, Petitioner would fail. The Supreme Court established in Strickland v. Washington that to challenge a conviction based on ineffective assistance of counsel, a prisoner must prove two elements: (1) his counsel was deficient in his representation—that is, "counsel's representation fell below an objective standard of reasonableness"—and (2) the prisoner was prejudiced as a result. 466 U.S. 668, 687-88 (1984). Petitioner has failed to demonstrate—or even argue—that Cleary's representation fell below an objective standard of reasonableness. While Petitioner states that he desired for Cleary to submit additional grounds in his PCR appeal, Petitioner has offered no explanation as to why it was objectively unreasonable for Cleary to fail to present other grounds to the PCR court and fails to acknowledge the possible strategy behind presenting Petitioner's strongest ground to the state court. See Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.").
Therefore, Petitioner has failed to establish that, under Strickland, Cleary provided ineffective assistance, and thus, Petitioner has failed to overcome the procedural default of Ground Two. See Martinez, 132 S. Ct. at 1318 ("[A] prisoner may establish cause for a default of an ineffective-assistance claim . . . where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland."). Moreover, as to the remaining grounds, Petitioner cannot establish cause and actual prejudice because he abandoned the opportunity to preserve these specific issues; therefore, the Court recommends granting Respondent's motion for summary judgment as to Ground Two through Eight.
Under the AEDPA, a federal court may not grant habeas relief unless the underlying state court decision was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court, id. § 2254(d)(2). The Supreme Court has held the "contrary to" and "unreasonable application of" clauses present two different avenues for relief. Williams, 529 U.S. at 405 ("The Court of Appeals for the Fourth Circuit properly accorded both the `contrary to' and `unreasonable application' clauses independent meaning."). The Court stated there are two instances when a state court decision will be contrary to Supreme Court precedent:
Id. at 405-06. On the other hand, a state court decision is an unreasonable application of Supreme Court precedent when the decision "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08; see also Richter, 131 S. Ct. at 786 ("Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. . . . It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable."). Finally, a decision cannot be contrary to or an unreasonable application of Supreme Court precedent unless applicable Supreme Court precedent exists; without applicable Supreme Court precedent, there is no habeas relief for petitioners. Virsnieks v. Smith, 521 F.3d 707, 716 (7th Cir. 2008) (citing Lockhart v. Chandler, 446 F.3d 721, 724 (7th Cir.2006); Simpson v. Battaglia, 458 F.3d 585, 597 (7th Cir.2006)); see also Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008).
When evaluating a habeas petition based on a claim of ineffective assistance of counsel, assuming the state court applied the correct legal standard—the Supreme Court's holdings in Strickland—"[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard."
Upon review, the Court determines the South Carolina Supreme Court's denial of Petitioner's ineffective assistance claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent. In his PCR petition, Petitioner claimed that his trial counsel was ineffective for failing to argue prejudice in support of the motion to dismiss because of speedy trial violations. Trial counsel made a pretrial motion to dismiss the charges based on a speedy trial violation. [Doc. 21-19 at 38.] Counsel acknowledged that Petitioner had filed two pro se motions for speedy trial. [Id. at 38-39.] Petitioner was kept in jail for two years, eight months and twenty days before he was brought to trial. [Id.]
At a hearing on the pretrial motions, the prosecution explained the trial delay because Petitioner was on his third lawyer, due to prior counsel's conflicts of interest. [Id. at 42.] The prosecutor also stated that in the "180-day rule [for bringing cases to trial] is literally violated in 85 percent of the criminal cases in South Carolina." [Id. at 45.] The trial court denied the motion, noting that the indictments did not come down for the case until a month before the trial.
[Id. at 48.]
At the PCR evidentiary hearing, trial counsel testified that he filed a motion to reduce Petitioner's bond but not a motion to dismiss the charges due to speedy trial until immediately after the case was called for trial. [Doc. 21-27 at 93.] Counsel admitted that filing a motion may have prompted a trial and that the lapse between Petitioner's arrest and trial may have caused memory lapses in witnesses. [Id. at 111-12.] Respondent argues that trial counsel made a strategic decision to delay the case so as to try Petitioner separately from his brother, who had been offered a plea deal. [Doc. 21 at 21.] However, upon review of the record, the Court does not find that trial counsel made that link in his PCR court testimony.
The PCR Court applied the standard set forth in Strickland v. Washington and found that trial counsel was not deficient in his performance. Specifically, the Petitioner did not show "that counsel was deficient in his choice of tactics" and did not demonstrate that "the result at trial would have been different had trial counsel done what the [Petitioner] alleges he should or should not have done." [Doc. 21-27 at 173.] As a factual matter, the PCR court found that counsel was not aware of Petitioner's pro se motions for speedy trial until after they were filed and that Petitioner did not discuss the speedy trial motions with his attorney. [Id. at 175.] "Once filed, trial counsel argued the motion on behalf of his client articulating all the issues of concern to his client. There is no evidence of any concern about a speedy trial until [Petitioner] filed the motion himself. There is no evidence that [Petitioner] discussed any concerns about the timeliness of the trial with his attorney before filing the motion." [Id.] The PCR Court found all of Petitioner's allegations of ineffective assistance of counsel to be without merit. [Id. at 176.]
As noted, Petitioner filed a petition for writ of certiorari in the South Carolina Supreme Court, seeking review of the PCR court's decision on the speedy trial issue. [Doc 21-4.] After a briefing of the issues, the Court of Appeals issued a per curiam opinion, holding that
[Doc. 21-10 at 4.]
Speedy trial violations are to be evaluated under a balancing test set forth by the Supreme Court in Barker v. Wingo, under which courts are to consider "the length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. 514, 530 (1972). The length of delay acts as a "triggering mechanism" such that "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id.
Here, the length of delay was "uncommonly long," which courts typically find is triggered as the delay approaches one year. United States v. Thomas, 55 F.3d 144, 149 (4th Cir. 1995). Therefore, Petitioner meets the threshold requirement of a speedy trial violation and the Court will proceed to consider the remaining elements. As to Petitioner's assertion of his speedy trial right, Petitioner allegedly filed a pro se motion for a speedy trial in 1998, but no documentary evidence of it was available when pre-trial motions were heard. [Doc. 21-19 at 39.] Petitioner filed a second pro se motion for speedy trial on April 26, 1999, which trial counsel was not aware of until September 15, 1999. [Id. at 36-37.] The PCR court found trial counsel's testimony about his knowledge of the motion to be credible, and made the factual determination that counsel was not aware of the motion until after Petitioner filed it and that Petitioner did not discuss his timeliness concerns (or the motions) with his attorney. [Doc. 21-27 at 175.] Once counsel learned of the speedy trial motions, he presented the motions to the Court on his client's behalf. [Doc. 21-19 at 36-39.] At the hearing on the pre-trial motions, Petitioner acknowledged that he did not discuss the motions with his attorney and that he did not file his first motion for speedy trial until almost two years after his arrest. [See id. at 46-47.] In Thomas, the Fourth Circuit gave weight to the delay in the assertion of a speedy trial right and the defendant's failure to discuss that right with his attorney. See Thomas, 55 F.3d at 150. Though the assertion of the speedy trial right is not required for a Sixth Amendment violation, the "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. (quoting Barker, 407 U.S. at 532). The Thomas court found that the failure to timely assert the speedy trial right (defendant in that case did eventually file a pro se motion for speedy trial) and failure to discuss the issue with his lawyer "weighed heavily against Thomas' claim of a speedy-trial violation," and the Court finds the same analysis is appropriate in this case. See id.
The government stated that the delay was due to three changes of defense counsel due to conflicts of interest, the last change being a personal conflict between Petitioner and counsel. [Doc. 21-19 at 42.] As a result of counsel changes, the Schmerber hearings to allow the prosecution to collect DNA from the defendants did not occur until April 1998 [id.], and DNA samples were not sent to the law enforcement lab until May 1998 [Doc. 21-24 at 121.] Moreover, before the date of the pretrial motions, the defense had not asserted a speedy trial right. [Id. at 44.] Trial counsel intimated to the trial court that the delay was due in part to a request for bond reduction [Doc.21-19 at 41], and testified to the PCR court that the delay was also due to waiting for DNA results to come back and to see if any plea deal would be offered [Doc. 21-27 at 100]. As to the reasons for the delay, the trial court found that the prosecution's reasons for the delay were not "well explained" [Doc. 21-19 at 48], but did not find them to be illegitimate. The trial court found that Petitioner did not experience any prejudice as a result of the delay. [Id.] Like the Court in Thomas, this Court need not determine if the government's reasons rise to the level of "reasonable diligence," which would preclude a speedy trial claim "absent a showing of specific prejudice." Thomas, 55 F.3d at 150. While the Court is concerned about the lengthy delay, the Court cannot conclude that such reasons are not plausible.
Therefore, the Court turns to prejudice to Petitioner, noting at the outset that the trial court found there to be no prejudice to Petitioner. Petitioner's primary argument as to prejudice is that the victim's eyewitness testimony was less reliable after the passage of time and that his alibi witness was not able to testify at trial because the passage of time caused her to be unsure whether she could provide an alibi. [Doc. 1-1 at 7-8.] As to the first allegation, it would inure to Petitioner's benefit if his accuser's testimony was less reliable, so that argument is not compelling. The Barker court held that there is a prejudice if defense witnesses are unable to recall facts because of a lapse of time. Barker, 407 U.S. at 532. Here, however, Petitioner claims prejudice in the victim being unable to remember the incident.
Snipes v. Reynolds, Case No. 07-CV-3516-CMC, 2008 WL 4457895, at *14 (D.S.C. Sept. 2008). As to Petitioner's argument about his alibi witness, she did not testify at trial or at the PCR hearing, which leaves this Court no evidence upon which to determine what her testimony would have been. Without such evidence, the Court cannot determine that the South Carolina courts made an unreasonable finding in determining that Petitioner experienced no prejudice.
Trial counsel was the third counsel assigned to Petitioner's case. He articulated a trial strategy at the PCR hearing, made a motion to dismiss the charges for a speedy trial violation as soon as he discovered Petitioner's motion, and researched the speedy trial case law in South Carolina. [Doc. 21-27 at 106]. Based upon trial counsel's actions as documented in the record, and the above analysis of Petitioner's speedy trial right, the Court cannot conclude that the state court incorrectly or unreasonably applied Supreme Court precedent in this instance.
Wherefore, based upon the foregoing, the Court recommends Respondent's motion for summary judgment [Doc. 15] be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED.
