United States District Court, D. South Carolina
RICHARD MARK GERGEL, District Judge.
This matter comes before the Court on the Report and Recommendation (R & R) of the Magistrate Judge (Dkt. No. 48), recommending that Respondent's Motion for Summary Judgment be granted and the habeas petition be dismissed. For the reasons stated below, the Court ADOPTS the R & R, as modified, GRANTS Respondent's Motion for Summary Judgment, and DISMISSES the habeas petition.
In January of 1999, a Grand Jury indicted Petitioner for murder and possession of a weapon during the commission of a violent crime. (Dkt. No. 30-27 at 169). Petitioner's initial conviction was reversed by the South Caroline Supreme Court, which found that the trial court improperly instructed the jury on mutual combat and that the error was prejudicial. State v. Taylor, 589 S.E.2d 1 (S.C. 2003). Petitioner was retried in January of 2005. The jury convicted Petitioner of murder and possession of a weapon during the commission of a violent crime. (Dkt. No. 30-27 at 25). Petitioner was sentenced to thirty-six years on the murder conviction and five years, concurrent, on the conviction for possession of a weapon during the commission of violent crime. ( Id. at 39).
Petitioner appealed his conviction. (Dkt. Nos. 30-1, 30-2). The South Carolina Court of Appeals dismissed the appeal and remitted the matter on October 26, 2007. (Dkt. Nos. 30-3, 30-5). The South Carolina Court of Appeals refused to accept a petition for rehearing because it was untimely, and the South Carolina Supreme Court denied Petitioner's request to have the Court of Appeals act on the petition of rehearing and denied Petitioner's request to file a petition for writ of certiorari. (Dkt. No. 30-6). The Court of Appeals also denied a "Motion to Recall/Reinstate the Remittitur, " and the South Carolina Supreme Court denied a later petition for writ of certiori. (Dkt. Nos. 30-7, 30-9).
On September 25, 2008, Petitioner filed an application for post-conviction relief (PCR), raising various ineffective assistance of counsel claims. (Dkt. No. 30-27 at 45-53). On April 16, 2010, the PCR court dismissed Petitioner's application in its entirety. (Dkt. No. 30-27 at 134-167). Petitioner filed a Motion to Reconsider (Dkt. No. 30-13 at 25-34), which was denied on April 15, 2010. ( Id. at 35).
Petitioner appealed the PCR court's ruling and raised ineffective assistance of counsel claim(s). ( See Dkt. Nos. 30-11, 30-12). The South Carolina Court of Appeals denied the petition on July 25, 2013, and denied a petition for rehearing on September 23, 2013. (Dkt. Nos. 30-14, 30-18). The South Carolina Supreme Court dismissed Petitioner's Petition for Writ of Certiorari. (Dkt. No. 30-20). The South Carolina Court of Appeals remitted the matter on October 21, 2013. (Dkt. No. 30-21).
Petitioner filed this Petition for Writ of Habeas Corpus on August 15, 2013, and supplemented his Petition on September 20, 2013. (Dkt. Nos. 1, 13). Petitioner raises various grounds for relief, most of them ineffective assistance of counsel claims. ( See id. ).
The Magistrate Judge found that (a) Grounds 20, 24 and 25 were procedurally barred, (b) that Grounds 32-35 are not cognizable on habeas review, (c) that Grounds 29 and 36 failed to comply with Rule 2(c), and (d) that the state court's rulings on the remaining issues were not contrary to or an unreasonable application of Supreme Court precedent, and, therefore, Petitioner was not entitled to habeas relief (Dkt. No. 48). Petitioner filed timely objections. (Dkt. No. 54).
IL Legal Standard
A. Report & Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions of the R & R or specified proposed findings or recommendations to which objection is made. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed.R.Civ.P. 72(b).
As to portions of the R & R to which no specific objection has been made, this Court "must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id. (quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
B. Federal Habeas Review
Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his petition cannot be granted unless the claims "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 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, 411 (2000). Importantly, "a determination of a factual issue made by a State court shall be presumed to be correct, " and Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
C. Habeas Review of Ineffective Assistance of Counsel
Where allegations of ineffective assistance of counsel are made, the question is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). First, the Petitioner must show that counsel made errors so serious that counsel's performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment. Id. at 687-88. Second, the Petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
"The standards created by Strickland and § 2254(d) are both highly deferential... and when the two apply in tandem, review is doubly so." Harrington v. Richter, 131 S.Ct. 770, 788 (2011). In applying § 2254(d), "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland' s deferential standard." Id.
As an initial matter, Petitioner makes a number of conclusory, blanket objections to the R & R and attempts to simply "incorporate" all of his filings before the Magistrate Judge. ( See, e.g., Dkt. No. 54 at 2 ("Petitioner specifically objects to the reasoning and inten-ruptation [sic] on each and every ground raised and argued by Petitioner opposed by the R & R."); id. at 2 ("Petitioner hereby re-incorporates the entire traverse, all presented Exhibits thus far and all the record built up to this juncture.")). To the extent Petitioner fails to point to a specific error in the R & R and simply makes conclusory objections, the Court need not conduct a de novo review. Smith v. Washington Mut. Bank FA, 308 Fed.Appx. 707, 708 (4th Cir. 2009) ("The court need not conduct de novo review... when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.") (quoting Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982)).
Furthermore, "[t]o the extent that plaintiff intends that this Court sua sponte consider prior argument not reiterated in specific objection to the magistrate judge's Report and Recommendation, the Court declines to do so." Ramsey v. Comm'r of Soc. Sec., No. 1:08-cv-240, 2009 WL 3242570 at *1 (W.D. Mich. Sept. 30, 2009). "[S]uch duplicative consideration by the district court would defeat the purpose and efficiency of consideration by the magistrate judge in the first instance." Id. Thus, this Court will consider "only the objections specifically raised or discernable in [Petitioner's] Objections." Id. ; accord Tauber v. Barnhart, 438 F.Supp.2d 1366, 1373 (N.D.Ga. 2006) (declining to consider all arguments de novo simply because a party "incorporated" prior breifing).
A. Procedurally Barred Claims - Grounds 24 and 25
A habeas petitioner must exhaust the remedies available to him in state court. 28 U.S.C. § 2254(b)(1). This requires a habeas petitioner to "fairly present his claims to the state's highest court." Matthews v, Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Procedural bypass, sometimes referred to as procedural bar or procedural default, occurs when a petitioner seeking habeas corpus relief failed to the raise the issue asserted in his habeas petition at the appropriate time in state court. Because the petitioner has no further means of raising the issue before the state courts, he is considered to have bypassed his state court remedies and is, thus, procedurally barred from raising the issue in a federal habeas proceeding. See Smith v. Murray, 477 U.S. 527, 533 (1986); Weeks v. Angelone, 176 F.3d 249, 272 n.15 (4th Cir. 1999) ("A claim is procedurally defaulted when it is rejected by a state court on an adequate and independent state procedural ground.").
It appears Petitioner did not raise Grounds 24 and 25, both ineffective assistance of counsel claims, in his PCR proceeding. ( See Dkt. No. 30-27 at 45-53). To the extent that they were raised, they were not addressed by the PCR Court. (Dkt. No. 30-27 at 134-167). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, the applicant must make a Rule 59(e) motion to preserve the issue on appeal. Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007). Here, Petitioner did file a Rule 59(e) motion, but he did not raise these two issues in his motion. ( See Dkt. No. 30-13 at 25-34). Because Petitioner did not do so, he failed to fairly present his claim to South Carolina's appellate courts and bypassed his state court remedies.
Petitioner objects to the Magistrate Judge's finding that these two issues were not raised in his PCR proceedings. (Dkt. No. 54 at 20). However, he fails to point to any place in the record where he raised them. (Id.). He also objects stating that he did file a Rule 59(e) motion. (Id.). Again, the Court agrees that Petitioner made a Rule 59(e) motion, but he did not raise these two grounds in that motion. There, these issues are procedurally barred from federal habeas review unless Petitioner can show (1) cause for not complying with the state court's procedural rule and actual prejudice resulting from the alleged constitutional violation or (2) a miscarriage of justice. E.g., Yeasts v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999). Petitioner has not made any such showing. Therefore, summary judgment is appropriate.
B. Defects in PCR Proceeding - Grounds 32, 33, 34, and 35
Petitioner raises the following issues concerning his PCR proceeding:
Ground Thirty-Two: Special Post Conviction Relief Judge Goldsmith failed to properly provide Petitioner a Continuance.
Ground Thirty-Three: PCR Judge Goldsmith errored [sic] by not allowing Petitioner to continue pro se representation.
(Dkt. No. 1 at 22).
Ground Thirty-Four: Special PCR Judge Goldsmith erroneously failed to grant Petitioner some Relief at the appropriate opportunity based on Constitutional Violations.
Ground Thirty-Five: Despite Petitioner's Pro Se representation he received gross ineffective (11th Hour) PCR counsel, violating his, including but not limited to 6th and 14th Amended Constitutional Rights.
(Dkt. No. 13 at 1).
However, because a state prisoner has no federal constitutional right to post-conviction proceedings in state court, a petitioner is not entitled to federal habeas relief if there is some error in the PCR proceedings. E.g., Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008). In particular, "[t]he 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." 28 U.S.C. § 2254(i). Therefore, these claims are not cognizable in a federal habeas action.
Petitioner argues that Martinez v, Ryan allows him to bring such claims. (Dkt. No. 54 at 25). However, Martinez "does not make such a free-standing claim cognizable." Boseman v. Warden of Lee Corr. Inst., No. 2:11-3265, 2012 WL 5380636 (D.S.C. Sept. 24, 2012), adopted by 2012 WL 5380701 (D.S.C. Oct. 31, 2012). Martinez held that a petitioner "could demonstrate sufficient cause to excuse a procedural default upon a showing that counsel in the initial-review collateral proceeding was ineffective." Id. It did not recognize a free-standing claim based on ineffective PCR counsel. Id .; see also Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (holding a Martinez claim is not a constitutional claim for habeas relief). Therefore, summary judgment is appropriate on these grounds.
C. Insufficient Facts Alleged - Grounds 29 & 36
Petitioner raises the following grounds for relief in his Petition and supplement to his Petition:
"Ground Twenty-Nine: Defense was ineffective for breaching his duty and agreement with Petitioner and his Grandfather." (Dkt. No. 1 at 21).
"Ground Thirty-Six: Petitioner's Due Process and Equal Protection Clause were infringed." (Dkt. No. 13 at 1).
Petitioner does not allege any facts in support of these Grounds, or otherwise elaborate on them in the Petition. (Dkt. No. 1, 13).
The Court agrees with the Magistrate Judge that these allegation fail to comply with Rule 2(c) of the Rules Governing Section 2254 Cases. See Rule 2(c) (requiring the Petition to "state the facts supporting each ground"). "In order to warrant relief, or, as an initial matter, even an evidentiary hearing, a habeas corpus petitioner must allege sufficient facts to establish a constitutional claim." Wiggins v. Lockhart, 825 F.2d 1237, 1238 (8th Cir. 1987). "Mere conclusory allegations will not suffice." Id. ; see also Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) ("Unsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing."), abrogated on other grounds by Yeatts v. Angelone, 166 F.3d 255 (4th Cir. 1999). Petitioner has not alleged sufficient facts to establish a constitutional claim.
With regard to Ground 36, Petitioner objects that he has "presented Due Process and Equal Protection Constitutional violations as a whole on just the information surfaced about the case up to this critical point." (Dkt. No. 54 at 25). However, this statement provides no more information as to Petitioner's purported claim than his Petition. Therefore, summary judgment is appropriate.
With regard to Ground 29, Petitioner provides additional facts in his objections. He states that trial counsel met with Petitioner's Pastor and Grandfather, and that trial counsel shook hands with his Grandfather saying that he would "make sure your son would receive a square deal, " referring to a plea agreement. (Dkt. No. 54 at 23). Even if Petitioner had alleged these facts in his Petition, he would not be entitled to relief. To the extent Petitioner alleges the breach of an agreement, he does not state a constitutional violation.
To the extent Petitioner alleges counsel was ineffective in plea negotiations, his claim fails on the merits. The PCR court found that trial counsel entered into plea negotiations with the solicitor, and that the State offered Petitioner a plea of voluntary manslaughter. (Dkt. No. 30-27 at 139-40). As explained more extensively below in Section III. 0., trial counsel adequately discussed this plea offer with Petitioner, and Petitioner rejected the plea of voluntary manslaughter twice. Petitioner has not explained how trial counsel was ineffective in his negotiations or shown that the PCR court's application of Strickland was unreasonable. Therefore, summary judgment is granted.
D. Ineffective Assistance of Counsel (Jury Charge) - Ground 1
Petitioner alleges that his trial counsel was ineffective for failing "to request specific jury charge that [Petitioner] was not required to retreat as evidence induced [sic] proved Petitioner immune from the Law of Retreat - Stand his Ground Doctrine." (Dkt. No. 1 at 9). Petitioner argues in his objections that the trial judge should not have included the third element of selfdefense in its instructions and that if it had not done so, the jury "could have returned a lessor included Judgment." (Dkt. No. 54 at 8).
The trial judge charged the following regarding the third element of self-defense:
I charge you further the third element of self-defense is that there was no other way to avoid the danger and that-this final-this element of self-defense is that the defendant had no other probable way to avoid the danger of death or serious bodily injury than to act as the defendant did in this particular instance. I charge you further that the defendant had no duty to retreat if by doing so the danger of being killed or suffering serious bodily injury would increase.
(Dkt. No. 30-26 at 156). The PCR court ruled that trial judge's instruction on the duty to retreat was correct as a matter of South Carolina law. (Dkt. No. 30-27 at 160). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, this Court must defer to and accept the PCR court's ruling that the trial judge's instruction was correct as a matter of state law. See Sharpe v. Bell, 593 F.3d 372, 383 (4th Cir. 2010) ("It is beyond the mandate of federal habeas courts... to correct the interpretation by state courts of a state's own laws.").
Because the trial court's instructions were correct, counsel was not ineffective for failing to object to them, and the PCR court's conclusion on this claim was not an unreasonable application of federal law. See, e.g., Lopez v. Thurmer, 594 F.3d 584, 587 (7th Cir. 2010) ("Because we leave undisturbed the state appellate court's holding that Lopez was not entitled to a felony-murder instruction, its additional ruling that counsel's performance was constitutionally adequate under Strickland was reasonable."). Therefore, summary judgment is appropriate.
E. Ineffective Assistance of Counsel (Jury Charge) - Grounds 4, 5, 6, 7, 8, and 10
Petitioner raises the following grounds regarding the trial court's jury instructions regarding malice:
Ground Four: Trial counsel was ineffective for failing to object to improper jury instructions that created a mandatory impermissible presumption that was conclusive and rebuttable that shifted the burden of proof in violation of Due Process.
Ground Five: Appointed trial counsel was ineffective for failing to object or otherwise permit a ma[n]datory presumption charge. Since voluntary manslaughter is expressly defined as the unlawful killing of another without malice, jury instruction creating mandatory presumption of malice precludes manslaughter and clearly prejudiced Petitioner charged with murder.
Ground Six: Appointed trial counsel was ineffective for failing to object or otherwise attempt to prevent trial judge's continuous jury charge that they may infer malice from the use of a deadly weapon ...