KAYMANI D. WEST, Magistrate Judge.
Phillip Sims ("Petitioner"), a state prisoner, 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 Civ. Rule 73.02(B)(2)(c) (D.S.C.), for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 21, 22. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 23. Petitioner filed a Response in opposition to Respondent's Motion on April 4, 2014. ECF No. 30. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment be granted.
Petitioner is currently incarcerated in the Perry Correctional Institution of the South Carolina Department of Corrections ("SCDC"). ECF No. 1. In 2009, Petitioner was indicted by the Lancaster County Grand Jury for one count of carjacking, two counts of kidnapping, one count of possession of a firearm or knife during commission of a violent crime, and one count of resisting arrest. App. 104-13.
Petitioner filed a timely Notice of Appeal. The direct appeal was dismissed by written order of the South Carolina Court of Appeals dated April 24, 2009. ECF No. 22-2. The case was returned to the lower court by Remittitur dated May 26, 2009. ECF No. 22-3. On June 11, 2009, Petitioner filed an Application for Post-Conviction Relief ("PCR") in the Court of Common Pleas for Lancaster County. App. 34-40. In his Application, Petitioner argued three grounds of ineffective assistance of trial counsel. App. 36. The State filed its Return on October 21, 2009. App. 41-45. An evidentiary hearing was conducted on February 28, 2012 before the Honorable Alison Renee Lee in Lancaster, South Carolina. App. 46-96. Petitioner was represented by M. Rita Metts, Esq., while the State was represented by Assistant Attorney General Suzanne White. App. 46. Petitioner, Petitioner's former trial counsel, and the Solicitor testified at the hearing. App. 47, 49-80. On April 2, 2012, the PCR court issued an order denying Petitioner relief and making the following findings of fact and conclusions of law:
App. 98-103.
Petitioner's appellate counsel, Lanelle C. Durant of the South Carolina Office of Appellate Defense, filed a timely Johnson Petition
Id. at 3. In connection with the Johnson Petition, Petitioner's appellate counsel certified to the Supreme Court that the appeal was without merit and asked to be relieved as appellate counsel. Id. at 9. On July 11, 2013, following its consideration of the petition, the South Carolina Supreme Court denied the petition and granted counsel's request to withdraw. ECF No. 22-5. This federal habeas Petition was filed on August 19, 2013.
Petitioner raises the following issues in his federal Petition for a Writ of Habeas Corpus, quoted verbatim:
Pet. 5, ECF No. 1.
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.
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 application of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); Williams v. Taylor, 529 U.S. 362, 398 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." 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. Id. 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. Here, it is undisputed that Petitioner met exhaustion requirements. Mot. Summ. J. 14, ECF No. 22.
A federal court may issue a writ of habeas corpus on claims adjudicated on their merits in state court only if that adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d); Cummings v. Polk, 475 F.3d 230, 237 (4th Cir. 2007) (internal quotation marks omitted). A state court's decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by th[e] [Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at" an opposite result. Lewis v. Wheeler, 609 F.3d 291, 300 (4th Cir. 2010)(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). Stated differently, to obtain federal habeas relief, "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011). "[S]o long as `fairminded jurists could disagree on the correctness of [a] state court's decision,'" a state court's adjudication that a habeas claim fails on its merits cannot be overturned by a federal court. Harrington, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 786 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
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 United States 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 669. 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).
There is no legal or factual argument contained in the Petition in this case. The "ground" quoted above is all that Petitioner writes in his Petition about this claim. Pet. 5, ECF No. 1. This point is written in broad terms, but, liberally construed, it covers two separate arguments that were raised in the PCR case about the nature of advice or lack thereof that Petitioner received from trial counsel before entering his guilty plea: (1) that trial counsel told him that he would receive a sentence between fifteen and twenty years ("Ground One (A)(1)"),
Respondent moves for Summary Judgment on the entire Petition and contends that the PCR judge's decision on each of the ineffective assistance of trial counsel points raised in the Petition was reasonable and proper. Mot. Summ. J., ECF No. 22. With respect to the oral plea offer issue specifically, Respondent points out that the issue was not raised by Petitioner in his direct appeal or PCR Application, but was instead raised by Petitioner's trial counsel after the PCR Application was submitted and at the PCR hearing. Id. at 22, ECF No. 22; see App. 54-55, 62, 70. Respondent also relies on the PCR testimony from the Solicitor in Petitioner's criminal case, wherein he stated that he had no memory of extending the alleged oral plea offer, that his file from the case did not contain any indication of a plea offer, and that it would be illogical for him to make such an offer in such a serious case where the defendant had already decided on a straight-up plea. App. 73-76. Respondent also points to the Solicitor's testimony about why it would be illogical to offer to cap a sentence for such a serious group of crimes committed by a person like Petitioner with a considerable criminal record. Mot. Summ. J. 23, ECF 22; App. 74-75, 78. Finally, Respondent contends that summary judgment is required on this point because, even if the PCR judge properly considered the claim despite it having only been raised by one of the witnesses at the hearing, Petitioner failed to carry his burden of proof on this point because he did not provide adequate proof that the oral plea offer was even made, or that he suffered prejudice, given the fact that any such offer would be only a recommendation to, and not binding on, the sentencing judge. Mot. Summ. J. 10, 23-24, ECF No. 22.
In his brief Response to the Motion for Summary Judgment, Petitioner does not directly challenge any of the PCR judge's rulings or allege that they were unreasonable. Resp., ECF No. 30. Rather, he provides a statement of procedural background, a general synopsis of summary judgment law, and only a discussion of the PCR testimony given by his trial counsel that Petitioner contends supports his allegation of ineffective assistance of trial counsel regarding the alleged failure to convey the alleged oral plea offer. Id. at 2-6; App. 62-65. Petitioner concludes that the testimony presented at the PCR hearing about the alleged oral plea offer required a finding that his counsel was ineffective. Id. at 5-6.
In support of his position on this point, Petitioner cites to his trial counsel's PCR testimony wherein he stated that he was "100 percent positive" that the prosecutor made the oral plea offer, but because "it happened so quickly" that he failed to tell Petitioner about it. Id. at 5; App. 64-65. He does not refer to or otherwise discuss the Solicitor's testimony, but states that had trial counsel told him about the oral plea offer, he would have "insisted" on having the alleged twenty-year cap offer "in place" before entering his plea. Resp. 5, ECF No. 30.
Insofar as the oral plea offer issue is concerned, the record discloses that the PCR judge found as a "matter of fact" that the oral plea offer was never made. App. 101. In making that finding, the PCR judge credited the Solicitor's testimony regarding the routine practice of his office regarding making formal offers to defense counsel in selected cases during discovery, his lack of recollection of making any such offer in Petitioner's case, and his testimony about the illogical situation that would be presented had he made such an offer to cap a sentence when the defendant already agreed to plead "straight up." Id. The PCR judge also refused to credit Petitioner's trial counsel's testimony about the alleged oral plea offer because the judge believed that trial counsel would have moved to withdraw or reconsider the plea after Petitioner was sentenced to seven more years than he would have received under the alleged oral plea offer. Id. The judge also ruled that, even if there were sufficient proof that the oral plea offer was made but not transmitted to Petitioner, post-conviction relief would not be granted on the issue because Petitioner did not carry his burden of showing prejudice from any failure to convey such an offer. App. 102. The judge first pointed out that Petitioner never raised this issue himself, nor did he present any personal testimony or other factual evidence about it. Id. Additionally, he opined that any such oral offer, had there been one, would not have bound the sentencing judge and would have, instead, been only a recommendation, which the sentencing judge would have probably rejected in light of the seriousness of the crimes involved and Petitioner's prior criminal record. Thus, he ruled that Petitioner could not show any prejudice from any lack of knowledge of the alleged oral plea offer. Id.
The applicable law in this area holds that a PCR court's credibility findings are entitled to deference by this court. Wilson v. Ozmint, 352 F.3d 847, 858-859 (4th Cir. 2003). "[F]ederal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them." Marshall v. Lonberger, 459 U.S. 422, 434 (1983); Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008). Following review of the arguments before the court and of the transcripts and other documents in the record, the undersigned finds that the PCR judge's decision on this point was a credibility determination of the trial counsel's testimony versus that of the Solicitor. Such testimony provides ample support for the PCR court's rejection of this ground for relief that was actually raised during the PCR hearing by Petitioner's trial counsel and not Petitioner himself in his PCR application or hearing testimony.
Review of the record in this case confirms that Petitioner has not shown that the PCR court's denial of post-conviction relief on the oral plea offer point was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 131 S. Ct. at 786-87. As such, Petitioner has not shown that the PCR court's findings and conclusions were contrary to, or an unreasonable application of, the Strickland standard. Accordingly, the undersigned recommends that Ground One (A)(2) of the Petition be dismissed.
Because Petitioner only submitted argument regarding Ground One (A)(2)(the allegedly un-conveyed oral plea offer) in his Response to Respondent's Motion for Summary Judgment, it appears that Petitioner does not dispute the validity of the PCR judge's rulings on the other issues originally raised in the Petition and has waived his right to contest the Motion for Summary Judgment insofar as the remaining three points raised in the Petition are concerned. Nevertheless, the undersigned has reviewed the PCR final judgment, the transcripts in the record insofar as they apply to the issues originally raised in the Petition and recited above, and Respondent's arguments in support of his Motion for Summary Judgment on those points. See Mot. Summ. J. 20-28, ECF No. 22; App. 3-104. Following review, the undersigned finds that each of the findings of fact and conclusions of law contained in the PCR judgment is reasonable and supported by the record that was before the PCR judge when the application was dismissed.
None of the PCR judge's rulings on Petitioner's other ineffective assistance of trial counsel points concerning trial counsel's failure to present certain evidence at the plea hearing or about his alleged provision of misinformation about the length of the sentence that Petitioner faced is contrary to clearly established federal law, nor do they show any unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The PCR court's rejection of all of Petitioner's ineffective assistance of trial counsel issues did not result in an unreasonable application of Hill and Strickland and was not based upon an unreasonable determination of facts in light of the state court record, nor is it contrary to clearly established federal law as determined by the Supreme Court of the United States or an unreasonable application of such law. See 28 U.S.C. § 2254(d)(1), (2); see Williams v. Taylor, 529 U.S. at 386. Respondent's Motion for Summary Judgment should be granted on these grounds as well.
The undersigned has considered Petitioner's grounds for habeas corpus relief and recommends that the Petition be dismissed. Accordingly, for the foregoing reasons, it is recommended that Respondent's Motion for Summary Judgment, ECF No. 22, be GRANTED and that the Habeas Petition, ECF No. 1, be DISMISSED with prejudice.
IT IS SO RECOMMENDED.
