MARY GORDON BAKER, Magistrate Judge.
The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 19; see also Dkt. No. 18.)
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.
The Petitioner brought the instant habeas action on November 24, 2014. (See Dkt. No. 1 at 15 of 16; see also Dkt. No. 1-2 at 2 of 2.) On April 3, 2015, Respondent filed a Motion for Summary Judgment. (Dkt. No. 19; see also Dkt. No. 18.) By order filed April 3, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 20.) Petitioner filed a Response in Opposition to the Motion for Summary Judgment on or about June 1, 2015. (Dkt. No. 25.)
The Petitioner is currently confined at McCormick Correctional Institution of the South Carolina Department of Corrections ("SCDC"). In November of 2007, the Richland County Grand Jury indicted Petitioner for murder. (See R. at 105-07.) Petitioner was represented by Todd Rutherford, Esquire. (See R. at 1.) On October 16, 2008, Petitioner pled guilty as charged before the Honorable J. Michelle Childs. (See R. at 1-21.) On October 16, 2008, Judge Childs sentenced Petitioner to 30 years. (R. at 20.)
It is unclear whether Petitioner filed a direct appeal.
(R. at 24.)
On June 7, 2011, an evidentiary hearing was held before Judge James R. Barber, III. (R. at 35-92.) Petitioner was present and represented by Tara D. Shurling, Esquire. (See R. at 35.) In a written order dated August 17, 2011, Judge Barber denied the application for post-conviction relief and dismissed the petition. (R. at 93-104.)
Petitioner, through his attorney Robert M. Dudek, Esquire, of the South Carolina Commission on Indigent Defense, filed a Petition for Writ of Certiorari on May 14, 2012. (See Dkt. No. 18-3.) Through counsel, Petitioner raised the following issue:
(Dkt. No. 18-3 at 4 of 15.)
In an order filed July 18, 2014, the South Carolina Court of Appeals denied the petition for a writ of certiorari. (Dkt. No. 18-5.) The matter was remitted to the lower court on August 6, 2014. (Dkt. No. 18-6.)
Petitioner then filed the instant habeas petition, wherein he raised the following grounds for review (verbatim):
(Dkt. No. 1 at 6-9 of 16.)
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are `material' when they might affect the outcome of the case, and a `genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "`the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Since the Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir.1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 398 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 410. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
As noted above, Respondent seeks summary judgment in the instant case. (Dkt. No. 19; see also Dkt. No. 18.) For the reasons set forth herein, the undersigned recommends granting Respondent's motion.
In Ground One, Petitioner contends that his attorney was ineffective because counsel "failed to adequately investigate the charge, to investigate and interview potential witnesses, give adequate legal advice prior to guilty plea." (Dkt. No. 1 at 6 of 16.) Petitioner also asserts that his attorney "failed to fully advise the [Petitioner] of the consequences of his plea and failed to investigate defenses of the charge against the [Petitioner]." (Id.)
Respondent asserts Ground One is "procedurally defaulted . . . because it was not presented to the state supreme court on certiorari." (Dkt. No. 18 at 7 of 37.) The undersigned agrees. As noted above, Petitioner presented one issue to the Supreme Court of South Carolina in his petition for writ of certiorari; this issue pertained to counsel's erroneous advice about his sentence. (See Dkt. No. 18-3 at 4 of 15.) Accordingly, Ground One is procedurally barred. See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (concluding that certain grounds are "procedurally defaulted as a result of [the petitioner's] failure to raise them in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision"); see also Ward v. McLeod, No. 3:01-0012-25BC, 2002 WL 31996018, at *4 (D.S.C. Apr. 18, 2002) ("When the petition for habeas relief is filed in the federal court, a petitioner may present only those issues which were presented to the South Carolina Supreme Court through direct appeal or through an appeal from the denial of the PCR application, whether or not the Supreme Court actually reached the merits of the claim.").
Procedural default may be excused if the Petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012). In the alternative for showing cause and prejudice, a petitioner may attempt to demonstrate a miscarriage of justice, e.g., actual innocence, Bousley v. United States, 523 U.S. 614, 623 (1998); see also Schlup v. Delo, 513 U.S. 298, 327 (1995), or abandonment by counsel. Maples v. Thomas, 132 S.Ct. 912, 924 (2012) (inquiring "whether [the petitioner] ha[d] shown that his attorneys of record abandoned him, thereby supplying the extraordinary circumstances beyond his control, necessary to lift the state procedural bar to his federal petition" (internal quotation marks and citations omitted)).
In his Response in Opposition, Petitioner asserts that he "can show both cause and actual prejudice to obtain relief from a defaulted claim." (Dkt. No. 25 at 10 of 26.) Petitioner states (verbatim),
(Id.) Petitioner appears to be arguing that any default should be excused due to the ineffective assistance of appellate counsel. (Id.) Pursuant to Martinez, "[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." Martinez, 132 S. Ct. at 1315. To establish that PCR Counsel provided ineffective assistance of counsel, Petitioner must show that: (1) his counsel's performance "fell below an objective standard of reasonableness"; and (2) he was prejudiced by his counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To establish prejudice, Petitioner must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; see also Preyor v. Stephens, 537 F. App'x 412, 421 (5th Cir. 2013) ("To establish ineffective assistance of his initial state habeas counsel, [Petitioner] must show both that habeas counsel's performance . . . was deficient and that he was prejudiced by the deficient performance—that is, there is a reasonable probability that he would have been granted state habeas relief had the claims been presented in the first state habeas application."); Foley v. White, No. 6:00-CV-552-DCR-REW, 2012 WL 6965070, at *9 (E.D. Ky. Nov. 15, 2012), adopted at 2013 WL 375185 (E.D. Ky. Jan. 30, 2013) ("In the context of Martinez, a demonstration of prejudice would require [Petitioner] to show that, but for post-conviction counsel's errors, there is a reasonable probability he `would have received relief on a claim of ineffective assistance of trial counsel in state court.'" (quoting Leavitt v. Arave, No. 1:93-cv-0024-BLW, 2012 WL 1995091, at *10 (D. Idaho June 1, 2012))); Horonzy v. Smith, No. 1:11-cv-00235-EJL, 2012 WL 4017927, at *6 (D. Idaho Sept. 12, 2012) ("The application of the Strickland test in this instance means that Petitioner is required to show that counsel's representation during the post-conviction proceeding was objectively unreasonable, and that, but for his errors, there is a reasonable probability that Petitioner would have received relief on a claim of ineffective assistance of trial counsel in the state post-conviction matter. This standard is a high one.").
As a preliminary matter, it is not clear that Martinez applies to a claim of ineffective assistance of appellate counsel. See Gore v. Crews, 720 F.3d 811, 815-16 (11th Cir. 2013) ("Martinez . . . does not apply in the circumstances of this case because [the petitioner's claim] . . . is not a claim that trial counsel was ineffective."); Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013) ("Under Martinez's unambiguous holding our previous understanding of Coleman in this regard is still the law—ineffective assistance of post-conviction counsel cannot supply cause for procedural default of a claim of ineffective assistance of appellate counsel."); cf. Johnson v. Warden of Broad River Corr. Inst., No. 12-7270, 2013 WL 856731 (4th Cir. Mar. 8, 2013) ("B]ecause Johnson alleges only ineffective assistance of appellate postconviction counsel, his allegations do not constitute cause for his failure to exhaust under the limited exception in Martinez. Instead, his claims fall under the general Coleman rule that ineffective assistance of postconviction counsel cannot constitute cause for procedural default."). But see Ha Van Nguyen v. Curry, 736 F.3d 1287, 1295-96 (9th Cir. 2013) (concluding Martinez also applies to a claim of ineffective assistance of appellate counsel). Moreover, Petitioner has made no showing that-but for counsel's failure to raise this claim in the petition for writ of certiorari-the court would have granted the Petitioner's requested relief. Accordingly, Ground One is procedurally defaulted, and Respondent is entitled to summary judgment as to this ground.
In Ground Two, Petitioner asserts his guilty plea "was not voluntarily/intelligently entered." (Dkt. No. 1.) Petitioner contends his guilty plea "was coerced by counsel's failure to provide adequate representation." (Id.) In Ground Three, Petitioner asserts counsel was ineffective in advising him that he "would serve 85% when the sentence was day for day." (Id.) Petitioner further asserts he "would not have pled guilty if he had not been erroneously advised about his `parole' or his `max out' date." (Id.)
The PCR court summarized Petitioner's testimony at the PCR hearing as follows:
(R. at 95-96.)
The PCR court then summarized the testimony of plea counsel:
(R. at 96-98.)
The PCR court found that beyond Petitioner's "review of the undisputed procedural history," Petitioner's testimony was "not credible" but that plea counsel's testimony was credible. (R. at 100.) In rejecting Petitioner's claims, the PCR court stated as follows:
(R. at 100-02.)
As noted above, in order to obtain federal habeas relief, Petitioner must show that the state court's adjudication (1) "resulted in a decision that was contrary to, or involved an unreasonable application of" clearly established federal law 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). Petitioner has not met that burden. The United States Supreme Court has said that a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984). A court's evaluation of counsel's performance under this standard must be "highly deferential," so as to not "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 Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992); Roach v. Martin, 757 F.2d 1463, 1467 (4th Cir. 1985). In order to establish the second prong of Strickland, "[t]he 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. A "reasonable probability" has been defined as "a probability sufficient to undermine confidence in the outcome." Id. While Strickland itself is a deferential standard, when both § 2254(d) and Strickland apply, "review is doubly" deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). Indeed, when § 2254(d) applies, "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105.
The two-part test enunciated in Strickland applies to challenges to guilty pleas based on ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). "[I]n order to satisfy the `prejudice' requirement [set forth in Strickland], the defendant must show 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, 474 U.S. at 59.
The state court found that Petitioner was not credible and that plea counsel was credible. (See R. at 100.) Such factual findings on credibility are "presumed to be correct"; Petitioner has the "burden of rebutting the presumption . . . by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003). Although Petitioner "emphasize[s] contrary facts" in his Response in Opposition to the Motion for Summary Judgment, doing so does not overcome the presumption of correctness by clear and convincing evidence. See Wilson, 352 F.3d at 860 ("These facts do not
Moreover, to the extent Petitioner claims counsel was ineffective in advising him that he "would serve 85% when the sentence was day for day," the undersigned notes that at the plea hearing, Petitioner stated that he understood when the judge asked if he understood that he was "just pleading straight up to the offense of murder which carries a minimum sentence of 30 years up to life imprisonment." (R. at 8.) Petitioner answered "No, ma'am" to the following question: "With respect to this plea, has anyone offered you anything in exchange for your plea, meaning any hope of reward, any promise,
Although plea counsel testified at the PCR hearing that the solicitor "did not object to a 30-year sentence," plea counsel also testified that he told Petitioner that "whatever the judge sentences him to, and if the judge had sentenced him to 35 years, he's got to serve whatever the judge sentences him to." (R. at 64, 85.) This testimony is consistent with the transcript of the plea hearing, which indicates that Petitioner pled "straight up" to murder "which carries a minimum sentence of 30 years up to life imprisonment." (R. at 8.)
While counsel gave Petitioner incorrect advice about the 85 percent, the state court's conclusion that Petitioner was not prejudiced is not contrary to, or an unreasonable application of, clearly established federal law, nor is such a conclusion based on an unreasonable determination of the facts. The error was corrected during the plea hearing, and Petitioner told the plea judge that he understood he would have to serve day for day. The case did not involve a negotiated sentence-Petitioner pled "straight up" to murder. Additionally, plea counsel testified at the PCR hearing that his conversations with Petitioner "never centered" around parole eligibility and that the "amount of time that he would be given was not, in [their] discussions, the coup de grace." (R. at 83.) Moreover, as counsel stated at the PCR hearing, Petitioner "wasn't going to get any less than thirty" years on a murder conviction; the "only place for him to go was up." (R. at 84.) Petitioner testified at the PCR hearing that he shot the victim, and when asked what defense he had to the murder charge, Petitioner did not have an answer. (R. at 43, 50.) Counsel testified that self-defense was not applicable on the facts of the case because "a threat[] a week earlier does not justify shooting somebody from your car into the back of their car." (R. at 66.) The state court's rejection of Petitioner's ineffective assistance of counsel claim does not warrant habeas relief. See Johnson v. Warden, Civ. A. No. 2:10-3050-HFF-BHH, 2011 WL 1706963, at *6-7 (D.S.C. Apr. 13, 2011), adopted at 2011 WL 1740129 (May 5, 2011) (no habeas relief where, inter alia, the petitioner testified he "was never told his sentence would be day for day" and "[p]lea counsel acknowledged that the guilty plea transcript reflects that he stated it was an 85% charge"; the court stated, "Here, the record of the guilty plea which includes a colloquy between the plea judge and the Petitioner regarding the requirement that the Petitioner serve a 30-year minimum sentence day for day and the plea counsel's testimony at the PCR hearing show that the Petitioner had a full understanding of the consequences of his plea and the charges against him, including the sentence."); Keener v. Bazzle, 481 F.Supp.2d 521, 526-31 (D.S.C. 2007) (no habeas relief where the petitioner stated he understood there would be a "24-year parole date," and counsel testified that he "may have told [the petitioner] it was 85% on the 30 years" where the "PCR judge determined Petitioner chose to plead guilty because of the overwhelming evidence and his desire to avoid the specter of the death penalty . . ., and this determination is not unreasonable"); see also Christian v. Ballard, 792 F.3d 427, 452-53 (4th Cir. 2015) ("[T]o obtain relief from a guilty plea, the defendant must do more than allege he would have insisted on going to trial if counsel had not misadvised him as to the consequences of that decision. The petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." (internal quotation marks and citations omitted). Cf. Garmon v. Lockhart, 938 F.2d 120, 121-22 (8th Cir. 1991) (affirming grant of habeas relief, stating, "We recognize that not every instance of a lawyer's failure to inform a client accurately of parole eligibility will reach the level of a constitutional violation. Nevertheless, we agree with the district court that in this case Garmon impressed on his trial counsel the importance of parole eligibility to his decision to plead guilty, and Garmon would have pleaded not guilty and insisted on going to trial but for counsel's erroneous advice." (internal quotation marks and citations omitted)).
To the extent Petitioner asserts his plea was not knowingly and voluntarily entered, the undersigned concludes Petitioner is not entitled to federal habeas relief. At the plea hearing, Investigator Hordle presented the following factual background for the plea:
(R. at 3-5.) Petitioner stated that he did not dispute any of those facts. (R. at 5.)
Petitioner stated that he understood that by pleading guilty he was waiving "all of [his] constitutional rights," including the right against self-incrimination and the right to a jury trial. (R. at 5-6.) He stated he understood that the State had the burden of convincing twelve jurors beyond a reasonable doubt that he committed the offense and that he did not "even have to put up a defense" at trial. (R. at 6.) He indicated an understanding to the fact that by pleading guilty, he was "waiving [his] ability to even present a defense to this case." (R. at 6-7.) Petitioner stated that he understood that by pleading guilty, he was also waiving a right to challenge evidence that he believed was illegally obtained. (R. at 7-8.) Petitioner stated that no one had threatened or forced him to plead guilty, and that he was doing so "freely and voluntarily." (R. at 7.) Petitioner stated he had enough time to speak with his attorney and felt like he "had enough time to make an informed . . . decision about whether [he] should plead guilty or go to trial." (R. at 7.) Petitioner stated that he was satisfied with his attorney's representation and did not need any additional time to speak with him. (R. at 9.)
In light of the foregoing, the state court's conclusion that Petitioner's plea was freely and voluntarily entered is not contrary to, or an unreasonable application of, clearly established federal law, nor is it based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also Doe v. Woodford, 508 F.3d 563, 572 (9th Cir. 2007) (rejecting involuntary plea argument where the petitioner "participated in a thorough plea colloquy, in which he answered in the affirmative that his plea was voluntary under the circumstances and, specifically answered in the affirmative when asked if he had had enough time to discuss the plea with his attorneys"); United States v. Solomon, 106 F. App'x 170, 171 (4th Cir. 2004); United States v. Robinson, 82 F. App'x 322, 323 (4th Cir. 2003) ("Robinson's plea colloquy reveals that his plea was knowingly and voluntarily entered into."); United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991). The undersigned therefore recommends granting Respondent's Motion for Summary Judgment.
It is RECOMMENDED, for the foregoing reasons, that Respondent's Motion for Summary Judgment (Dkt. No. 19) be GRANTED; and the Petitioner's habeas petition be DISMISSED WITH PREJUDICE. It is further RECOMMENDED that a certificate of appealability be denied.
IT IS SO RECOMMENDED.
(Dkt. No. 25 at 2-3 of 26.) To the extent Petitioner seeks to present new evidence to support the claim that counsel was ineffective in failing to investigate defenses, § 2254(d) prohibits him from doing so. See 28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ("hold[ing] that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits").
28 U.S.C. § 2253. A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the case sub judice, the legal standard for a certificate of appealability has not been met. The undersigned therefore recommends that a certificate of appealability be denied.
