United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
SHIVA V. HODGES, Magistrate Judge.
Petitioner Andre King is an inmate at the Lieber Correctional Institution of the South Carolina Department of Corrections who 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Petitioner's motion to stay [ECF No. 23] and Respondent's motion for summary judgment and return. [ECF Nos. 19, 20]. 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 by June 26, 2014. [ECF No. 21]. After two extensions, Petitioner's response was due by August 28, 2014. [ECF Nos. 25, 30]. Petitioner failed to file a response, and the court issued an order on September 2, 2014, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to Respondent's motion by September 16, 2014. [ECF No. 32]. Petitioner filed a response on September 2, 2014. [ECF No. 34].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Petitioner's motion to stay be denied and Respondent's motion for summary judgment be granted.
I. Factual Background and Procedural Background
On July 8, 2005, Petitioner was working at Touch of Class nightclub in Orangeburg, South Carolina, when his ex-girlfriend, Monique Green, and her cousin, Matthew Jenkins, arrived at the club with some friends. After Petitioner indicated that the group should leave the club, Green and the group left, only to return a short time later to again be told to leave by Petitioner. Thereafter, Petitioner went to his car and entered the club two minutes later, fatally shooting Jenkins and wounding Green. Petitioner left the nightclub and was arrested after a high-speed chase. Petitioner admitted to police that he shot Jenkins and Green. Approximately a year after the incident, Petitioner wrote an apology to Jenkins' family, acknowledging full responsibility.
Petitioner was indicted by the Orangeburg County grand jury during the September 2005 term of court for: (1) assault and battery with the intent to kill ("ABWIK") (2005-GS-38-1393) [ECF No. 20-8 at 42-43]; (2) possession of a weapon during commission of a violent crime (2005-GS-38-1394) [ id. at 44-45]; and (3) murder (2005-GS-38-1395) [ id. at 46-47]. Petitioner was represented by Michael R. Culler, Jr., Esq., and Andrew J. Brown, Esq., at a jury trial on September 10-13, 2007, before the Honorable R. Knox McMahon, Circuit Court Judge. [ECF No. 20-5 at 3 et seq. ]. Petitioner was found guilty on all counts. [ECF No. 20-8 at 32-33]. Judge McMahon sentenced Petitioner to concurrent sentences of life without parole (LWOP) for murder, 20 years for ABWIK, and 5 years for possession of a weapon during the commission of a violent crime. [ Id. at 39-40].
Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals ("Court of Appeals"). [ECF No. 20-1]. On appeal, Petitioner was represented by Robert M. Dudek, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Attorney Dudek filed a merits brief raising the following issue:
Whether the court erred by ruling appellant could be impeached with his conviction for being an accessory after the fact of armed robbery, since the unduly prejudicial effect of allowing this impeachment evidence outweighed its probative value under Rule 601(a)(1), SCRE, and Rule 403, SCRE, since the present case involved a shooting, and appellant being impeached with a crime involving an armed robbery had the connotation of the extreme danger involved in a prior gun crime that was unduly prejudicial, and misleading?
Id. at 4.
On April 26, 2010, the Court of Appeals filed an unpublished decision affirming the convictions. [ECF No. 20-3]. The remittitur was issued on May 12, 2010. [ECF No. 20-4].
On August 6, 2010, Petitioner filed an application for post-conviction relief ("PCR"), raising claims of ineffective assistance of counsel and of the denial of 6th and 14th Amendments. [ECF No 20-8 at 51-56]. Petitioner subsequently filed an amended PCR application, asserting claims of ineffective assistance of counsel and a due process violation concerning jury instructions. [ Id. at 57-82].
On March 8, 2011, a PCR evidentiary hearing was held before the Honorable Edgar W. Dickson, Circuit Court Judge, at which Petitioner and his counsel, Charles Brooks, Esq. appeared. [ Id. at 88-114]. On July 18, 2011, Judge Dickson filed an order of dismissal. [ Id. at 115-23].
Petitioner appealed from the denial of PCR and was represented by Appellate Defender Kathrine H. Hudgins of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Attorney Hudgins filed a petition for writ of certiorari in the South Carolina Supreme Court on May 23, 2012, raising the following issue: "Did the PCR judge err in refusing to find counsel ineffective for failing to object to the pre- Belcher jury charge in regard to the inference of malice from the use of a deadly weapon when the charge was a mandatory presumption rather than a permissive inference?" [ECF No. 20-9 at 3].
The South Carolina Supreme Court denied the petition on July 25, 2013. [ECF No. 20-11]. The remittitur was issued on August 13, 2013. [ECF No. 20-12]. Petitioner filed this petition for a writ of habeas corpus on January 7, 2014. [ECF No. 1].
A. Motion to Stay
On June 16, 2014, Petitioner filed a motion to stay asking the court to hold his habeas petition in abeyance to allow him the opportunity to exhaust his state court remedies on the issues presented in his habeas petition. [ECF No. 23]. In support of his motion, Petitioner argues that his appellate counsel did not raise his habeas grounds during his PCR appeal, and that now that he is representing himself, he should be permitted to return to state court to pursue claims that his counsel did not. [ Id. at 3-4].
In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court stated that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." 544 U.S. at 277. The Court further stated that "even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id.
The undersigned finds that Petitioner is not entitled to a stay in this action. All of Petitioner's claims raised in his habeas petition have been exhausted for the purpose of federal habeas review. See, e.g., S.C. Code Ann. § 17-27-45 (establishing one-year period of limitation on filing of PCR); S.C. Code Ann. §17-27-90 (providing that all grounds for relief available to an application under this chapter must be raised in his original, supplemental or amended Application); Matthews v. Evatt, 105 F.3d 907 (4th Cir. 1997) (noting that South Carolina requires all grounds for relief to be raised in the first PCR). Although Petitioner's claims are technically exhausted, they are procedurally barred from review in federal habeas. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (holding that issue not properly raised to the state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas).
Petitioner has not shown good cause for his failure to properly exhaust his claims in state court and has not demonstrated that his claims are potentially meritorious. See Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012) (finding that attorney error during appeals from initial-review collateral proceedings does not constitute good cause for failure to exhaust initial collateral review claims). Accordingly, the undersigned recommends that Petitioner's motion to stay be denied.
B. Federal Habeas Issues
Petitioner asserts he is entitled to a writ of habeas corpus on the following grounds:
Ground One: Whether the court erred by ruling appellant could be impeached with his prior conviction for being an accessory after the fact of armed robbery since the unduly prejudicial effect of allowing this impeachment evidence outweighed its probative value under Rule 601(a)(1) SCRE and Rule 403 SCRE.
Ground Two: (a) Ineffective assistance of counsel (b) Denial of 6th Amendment (c) Denial of 14th Amendment: (A) For conceding petitioner's guilt in closing argument to the jury? (B) For failing to object to trial court's jury instruction that shifted the burden of proof in violation of due process? (C) For failing to object when the trial court failed to instruct the jury they could accept or reject the inference of malice from the use of a deadly weapon? (D) For failing to request a King instruction? (E) For failing to object to the court's jury instruction on self-defense that shifted the burden of proof in violation of due process?
Ground Three: Whether PCR judge erred in refusing to find counsel ineffective for failing to object to jury charge in regard to the inference of malice from the use of a deadly weapon when the charge was a ...