BRUCE H. HENDRICKS, District Judge.
This matter is before the Court upon Petitioner Carlynias Pettigrew's ("Petitioner" or "Pettigrew") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), the matter was referred to a United States Magistrate Judge for initial review. On July 30, 2018, Magistrate Judge Mary Gordon Baker filed a Report and Recommendation ("Report"), outlining the issues and recommending that the Court grant Respondent's motion for summary judgment. Petitioner filed objections to the Report, and Respondent filed a reply to those objections. For the reasons set forth herein, the Court adopts the Magistrate Judge's Report and grants Respondent's motion for summary judgment.
Petitioner is confined in the McCormick Correctional Institution of the South Carolina Department of Corrections as a result of his conviction and sentence in Florence County, South Carolina. The Florence County Grand Jury indicted Petitioner with murder in July of 2011, and attorney William Vickery Meetze represented Petitioner. On July 26, 2012, Petitioner pleaded guilty to the lesser-included offense of manslaughter before the Honorable Craig D. Brown and received a negotiated 30-year sentence.
Petitioner timely filed a notice of appeal, and in accordance with South Carolina Appellate Court Rule 203(d)(1)(B)(iv), plea counsel wrote the South Carolina Court of Appeals and explained that he had filed the notice of appeal on Petitioner's behalf and that he had written to Petitioner on August 20, 2012, instructing him to inform the Court of any review-able issues. Petitioner did not do so, and as a result, the South Carolina Court of Appeals filed an order dismissing his appeal for failure to comply with Rule 203(d)(1)(B)(iv) on November 26, 2012. The Court of Appeals sent the remittitur to the Florence County Court of Clerk on January 9, 2013.
Petitioner filed a pro se application for post-conviction relief ("PCR") on February 5, 2013, alleging the following grounds for relief:
(ECF No. 9-1 at 49-54.) On February 5, 2013, Petitioner filed "An Amendment to the Post-Conviction Relief Application," in which he raises the following claims:
(ECF No. 9-1 at 55-59.) The state filed its return on May 9, 2013.
The Honorable Edgar W. Dickson held an evidentiary hearing on October 9, 2014. Petitioner appeared at the hearing represented by attorney Jonathan D. Waller. Petitioner testified, and the state presented testimony from plea counsel Meetze. Both parties submitted post-hearing memoranda in support of their respective positions. Petitioner argued in his memorandum that:
(ECF No. 9-6.) Judge Dickson ultimately denied relief and dismissed the PCR application with prejudice in an order filed on July 6, 2015. Petitioner timely filed a notice of appeal. Assistant Appellate Defender Robert M. Pachak represented Petitioner in collateral appellate proceedings. Pachak filed a Johnson petition for a writ of certiorari on Petitioner's behalf and petitioned to be relieved as counsel on October 20, 2015. The Johnson petition presented only one issue for review: Whether Petitioner's guilty plea was entered into voluntarily and intelligently? (ECF No. 9-9.) On January 11, 2016, the Supreme Court received Petitioner's pro se response to the Johnson petition, wherein Petitioner raised the following issues:
(ECF No. 9-10.) On January 13, 2017, the South Carolina Supreme Court filed an order denying certiorari and granting counsel's petition to be relieved. The remittitur was sent to the Florence County Clerk of Court on January 31, 2017.
Twelfth Circuit Solicitor E.L. Clements, III and Investigator Thomas McFadden of the Florence County Sheriff's Office presented the following facts during Petitioner's guilty plea hearing:
(ECF No. 9-1 at 25-28.) The trial judge then questioned Petitioner. Petitioner admitted that he had heard the State's proffer; that this would be the evidence presented if he had a trial; that there was a probability that he would be convicted of voluntary manslaughter if he went to trial; and that this was the basis for his guilty plea. He also admitted his guilt to the charge. (Id. at 29.)
Petitioner filed the instant § 2254 petition on October 26, 2017, raising the following grounds for review, taken verbatim from his petition:
(ECF No. 1.)
The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of any portion of the Report to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
To grant a motion for summary judgment, this Court must find that "there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c). The Court is not to weigh the evidence, but rather to determine if there is a genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If no material factual disputes remain, then summary judgment should be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). All evidence should be viewed in the light most favorable to the non-moving party. See Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (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
28 U.S.C. § 2254(d).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that § 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. Id. at 404-05. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in controlling cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Id. at 405-06. A federal habeas court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from Supreme Court decisions but unreasonably applies it to the facts of the particular case. Id. at 407-08. Factual determinations made by the state "shall be presumed to be correct," and "[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
The Sixth Amendment requires that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense," and that such assistance be effective. U.S. Const. Amend. VI; Strickland v. Washington, 466 U.S. 668, 686 (1984). A meritorious ineffective assistance claim must demonstrate two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Id. at 687-98. The first part of the test, a court's evaluation of counsel's performance, must be "highly deferential" under this standard, so as not to "second-guess" the performance. Id. at 689. "[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." Id. (internal quotation marks and citation omitted); see also Fields v. Attorney Gen. of Maryland, 956 F.2d 1290, 1297-99 (4th Cir. 1992); Roach v. Martin, 757 F.2d 1463, 1476 (4th Cir. 1985). To establish prejudice and thereby fulfill the second prong of the ineffective assistance test, the challenging defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694-95. In the guilty plea context, a petitioner must show 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).
In the interest of giving state courts the first opportunity to consider alleged constitutional errors in a state proceeding, relief under § 2254 may be had only after a petitioner has exhausted his state court remedies. "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), cert. denied, 522 U.S. 833 (1997).
To exhaust a claim in state court, a person in custody has two primary means of attacking his conviction: filing a direct appeal and/or filing a PCR application under the South Carolina Post Conviction Procedure Act, S.C. Code Ann. §§ 17-27-10-160. If the PCR court fails to address a claim as required by S.C. Code Ann. § 17-27-80, then counsel for the applicant must file a motion to alter or amend the judgment pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure. Failure to do so will result in the application of a procedural bar to that claim by the South Carolina Supreme Court. Marlar v. South Carolina, 375 S.C. 407, 653 S.E.2d 266, 267 (2007); see also Marlar v. Warden, Tyger River Correctional Inst., 432 F. App'x 182, 186-88 (4th Cir. May 25, 2011). "[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies." In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 564 (1990).
When a federal habeas petitioner has failed to raise a claim at the appropriate time in state court and has no further means of bringing that issue before the state courts, the claim will be considered procedurally defaulted, and he will be procedurally barred from raising the issue in his federal habeas petition. Smith v. Murray, 477 U.S. 527, 533 (1986). Procedural default 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.
If a federal habeas petitioner has procedurally defaulted his opportunity for relief in the state courts, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews, 105 F.3d 907 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), Teague v. Lane, 489 U.S. 288, 297-98 (1989), and George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996)). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear. Teague, 489 U.S. at 297-98.
Nevertheless, because the requirement of exhaustion is not jurisdictional, a federal court may consider claims that have not been presented to the highest South Carolina court with jurisdiction in very limited circumstances. Granberry v. Greer, 481 U.S. 129, 131 (1989). Specifically, a federal court will review a procedurally defaulted claim if the petitioner can demonstrate sufficient cause for the default and actual prejudice resulting from the failure. Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
"Cause" is defined as "some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule." Strickler v. Greene, 527 U.S. 263, 283 n. 24 (1999) (quoting Murray, 477 U.S. at 488). 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. Murray, 477 U.S. at 495-96. 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 also must 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. A petitioner must show an actual and substantive disadvantage as a result of the error, not merely the possibility of harm.
In Martinez v. Ryan, the Supreme Court considered "whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney's errors in an initial-review collateral proceeding." 566 U.S. 1, 4 (2012). The Court explained that an error by a prisoner's PCR counsel during an initial state collateral review proceeding can qualify as "cause" to excuse the procedural default of a claim of trial counsel ineffectiveness if: (1) state law required the prisoner to wait until PCR to raise the Strickland claim; (2) the prisoner's underlying Strickland claim is "substantial"-"which is to say that the petitioner must demonstrate that the claim has some merit"; and (3) the prisoner can establish that PCR counsel was ineffective under Strickland. 566 U.S. 1, 14 (2012).
As an alternative to demonstrating cause for failure to raise a claim, a petitioner may show a miscarriage of justice. To demonstrate a miscarriage of justice, the petitioner must show that he is actually innocent. See Murray, 477 U.S. at 496 (holding that 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).
As his first ground for relief, Petitioner contends that trial counsel was ineffective for failing to advise him of his rights pursuant to the Protection of Persons and Property Act ("PPPA"), S.C. Code § 16-11-410, et seq., which Petitioner contends would have provided him with a valid defense to the charge he faced. Respondent argued in response that the ground is procedurally defaulted because Petitioner failed to raise the ground to the PCR court; the PCR court did not make any findings as to this ground; and PCR counsel failed to file a Rule 59(e) motion to preserve the ground for appellate review.
In her Report, the Magistrate Judge considered the parties' arguments and ultimately agreed with Respondent that this ground is procedurally defaulted and that Petitioner failed to make any showing sufficient to overcome the procedural bar. Specifically, the Magistrate Judge determined that Petitioner's reliance on Martinez to excuse the procedural default is unavailing, because Petitioner failed to show that the underlying ineffective assistance claim is "substantial," or in other words, that it has some merit. 566 U.S. at 14. Petitioner objects to the Magistrate Judge's findings, again arguing that Martinez applies to excuse the procedural default because the underlying claim is "substantial." For the following reasons, the Court finds Petitioner's objection without merit and agrees with the Magistrate Judge's analysis.
Here, as the Magistrate Judge explained, the PCR court found plea counsel's testimony to be credible and found Petitioner's testimony not to be credible. The PCR court determined that plea counsel reviewed self defense with Petitioner and explained to Petitioner why it was not a viable defense.
First, as the Magistrate Judge explained, the PPPA is not a defense but rather provides immunity from prosecution. See State v. Curry, 406 S.C. 364, 370, 752 S.E.2d 263, 265 (2013). The South Carolina courts have determined that to be entitled to immunity under the PPPA, "a valid case of self-defense must exist, and the trial court must necessarily consider the elements of self-defense in determining a defendant's entitlement to [the PPPA's] immunity." Curry, 752 S.E.2d 263, 266 (2013). Here, plea counsel testified that he did not believe Petitioner had a successful claim of self-defense based on the evidence. As the Magistrate Judge discussed:
(ECF No. 19 at 14-15.) The Magistrate Judge explained that Petitioner would not have had a valid claim for immunity under the PPPA for the same reasons that counsel believed Petitioner did not have a valid self-defense claim. Indeed, Petitioner acknowledged that his statements to law enforcement did not support his current version of the crime. Thus, the Court agrees with the Magistrate Judge that Petitioner has failed to show that counsel's performance was deficient. Moreover, the Court also agrees with the Magistrate Judge that-even if counsel's performance was deficient for failing to review the PPPA with Petitioner-Petitioner cannot demonstrate prejudice because the evidence did not support a successful claim of self defense or immunity under the PPPA. In summary, the Court agrees with the Magistrate Judge that Petitioner is not entitled to relief on this procedurally defaulted ground because he has failed to show that the underlying ineffective assistance claim is a substantial one, and the Court overrules Petitioner's objections on this issue.
As his second ground, Petitioner contends that counsel was ineffective for failing to properly advise him of his right to a suppression hearing to determine the admissibility of statements he made to law enforcement. Petitioner argues that counsel's failure to properly advise him on this issue rendered his guilty plea unknowing and involuntary.
In her Report, the Magistrate Judge found this ground without merit and agreed with Respondent that the PCR court's rejection of this claim did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or a decision that was based on an unreasonable determination of the facts in light of the evidence presented. Petitioner objects to this finding, again arguing that Petitioner advised counsel that his statements were coerced and that counsel's performance was unquestionably deficient for failing to fully advise Petitioner about the potential suppression of those statements. The Court finds Petitioner's objection without merit for the following reasons.
First, as the Magistrate Judge pointed out in her Report, Petitioner filled out an "Affidavit of Defendant for Guilty Plea" ("Affidavit"). (ECF No. 9-1 at 36, 118-125.) In this Affidavit, Petitioner indicated that he wished to waive his right against self-incrimination, his right to a jury trial, and his right of confrontation. (Id. at 117.) Petitioner indicated that he understood that he was admitting the truth of the charges against him by pleading guilty, and that by pleading guilty, he was waiving any defense to the charge against him. (Id. at 120.) Petitioner checked "yes" when asked the following question: "You may have given an incriminating statement in this case. Do you understand that if you plead guilty you waive or give up the right to contest or challenge whether such a statement was freely and voluntarily given in accordance with your constitutional rights?" (ECF No. 9-1 at 121.)
In addition, during the guilty plea hearing, the following colloquy occurred:
(ECF No. 9-1 at 13-14 (emphasis added).) Thus, Petitioner stated in writing and orally that he understood he had the right to challenge the admissibility of any incriminating statements and that he was giving up that right by pleading guilty, and he has not presented any compelling evidence to overcome the "strong presumption of verity" of the statements made during his plea hearing. United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005).
In addition, the Court agrees with the Magistrate Judge that the PCR court's findings regarding the credibility of the witnesses and the facts surrounding Petitioner's guilty plea are not unreasonable. As the Magistrate Judge determined: "The evidence that Petitioner voluntarily and knowingly waived his rights to challenge his statements is overwhelming." (ECF No. 19 at 20-21.) Here, the Court finds no basis to disturb the Magistrate Judge's findings on this issue because the PCR court's finding that counsel was not ineffective on this point (and that Petitioner's guilty plea was knowingly and voluntarily made) was not contrary to, and did not involve an unreasonable application of, clearly established federal law, and was not a decision based on an unreasonable determination of the facts in light of the evidence presented.
As his third ground for relief, Petitioner argues that he was denied his rights to due process and effective assistance of counsel because he was not satisfied with his counsel and he informed the plea court of his dissatisfaction. The Magistrate Judge thoroughly examined this claim and agreed with Respondent that the claim is procedurally defaulted and that the claim is without merit. In his objections, Petitioner reiterates his claim that he was denied the effective assistance of counsel due to their antagonistic relationship and asserts that any procedural default of the claim is excused by Martinez. Here again, the Court finds Petitioner's objection without merit.
As an initial matter, the Court agrees with Respondent that this claim is procedurally defaulted because it was not specifically raised as a ground. Pursuant to Martinez, Petitioner argues that he can demonstrate cause to excuse the procedural default, but the Court disagrees with Petitioner because the evidence does not demonstrate that Petitioner's underlying ineffective assistance claim has merit. Stated plainly, although it is clear that Petitioner was dissatisfied with his counsel, and although Petitioner filed legal grievances against counsel, a defendant does not have an absolute right to the substitution of counsel, and to warrant substitute counsel, a defendant must show "justifiable dissatisfaction" with counsel. United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994). "Justifiable dissatisfaction sufficient to merit substitution of counsel includes a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the client." United States v. Smith, 640 F/3d 580, 591 n. 4 (4th Cir. 2011) (citation and internal quotations omitted).
In his objections, Petitioner argues that counsel's failure to advise Petitioner of the PPPA and his failure to advise Petitioner about the admissibility of his statements created a legal conflict of interest. The Fourth Circuit has indicated that "prejudice is presumed, and a petitioner is entitled to relief, if [the petitioner] shows that his counsel labored (1) under an actual conflict of interest that (2) adversely affected his representation." James v. Polk, 401 F.3d 257, 267 (4th Cir. 2005) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)). Thus, even where a petitioner can show an actual conflict, "he cannot succeed on his claim unless he also can show that the conflict adversely affected the attorney's representation, such as when an attorney takes action for one client that is necessarily adverse to another, or when an attorney fails to take action for one client for fear of injuring another." Id. (citing Gilbert v. Moore, 134 F.3d 642, 652 (4th Cir, 1998). As the Magistrate Judge explained, in Woodfolk v. Maynard, the Fourth Circuit "articulated a three-part standard for demonstrating adverse effect, which requires the defendant to (1) `identify a plausible alternative defense strategy or tactic that his defense counsel might have pursued,' (2) show that this strategy `was objectively reasonable under the facts of the case known to the attorney at the time,' and (3) show `that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict.'" 857 F.3d 531, 553 (4th Cir. 2017) (quoting United States v. Dehlinger, 740 F.3d at 322 (4th Cir. 2014)).
In his objections, Petitioner asserts that this three-part test has been met:
(ECF No. 24 at 16.)
For the reasons set forth in the Magistrate Judge's Report, and for the reasons previously set forth herein, the Court agrees with the Magistrate Judge that the PPPA was not an alternative viable defense because the evidence did not support PPPA immunity; thus, it would not have been objectively reasonable for counsel to pursue the argument.
In all, the Court finds no evidence to support a finding that counsel was operating under a legal conflict of interest or an irreconcilable conflict, or that there was a complete breakdown in communication. Because the Court agrees with the Magistrate Judge that Petitioner's underlying ineffective assistance claim is not substantial, Martinez does not excuse the procedural default of this claim, and Petitioner's objections on this issue are overruled.
As a fourth ground, Petitioner argues that his PCR counsel was ineffective for failing to file a motion to reconsider the PCR court's decision under Rule 59(e) of the South Carolina Rules of Civil Procedure and thereby preserving his claims for appellate review. The Magistrate Judge found no merit to this claim because § 2254 bars substantive habeas relief based on the ineffectiveness or incompetence of counsel during federal or state collateral post-conviction proceedings. 28 U.S.C. § 2254(i). Petitioner does not raise any specific objections to the this portion of the Magistrate Judge's Report other than to state that he "relies on his argument in the Response as his objection." (ECF No. 24 at 16.)
After review, the Court agrees with the Magistrate Judge that this ground is wholly without merit. Stated plainly, the claim set forth in ground four-a freestanding claim alleging ineffective assistance of PCR counsel-is simply not cognizable on habeas corpus review. See 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). Accordingly, Petitioner's objection is overruled.
Based on the foregoing, it is hereby ordered that the Magistrate Judge's Report (ECF No. 19) is adopted in full; Petitioner's objections (ECF No. 24) are overruled; Respondent's motion for summary judgment (ECF No. 10) is granted; and this petition is dismissed with prejudice.
The governing law provides:
28 U.S.C. § 2253(c). A prisoner satisfies the 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.
