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Irby v. Warden, Broad River Correctional Institution

United States District Court, D. South Carolina

April 28, 2015

Frederick Alphonso Demetre Irby, Petitioner,
v.
Warden, Broad River Correctional Institution, Respondent.

ORDER

RICHARD MARK GERGEL, District Judge.

This matter comes before the Court on the Report and Recommendation (R & R) of the Magistrate Judge (Dkt. No. 25), recommending that Respondent's Motion for Summary Judgment (Dkt. No. 16) be granted and the habeas petition be dismissed. For the reasons stated below, the Court ADOPTS the R & R, GRANTS Respondent's Motion for Summary Judgment, and DISMISSES the habeas petition.

I. Background

In December of 2009, Petitioner was indicted by a grand jury for murder, armed robbery and possession of a weapon during the commission of violent crime. (Dkt. No. 17-1 at 123-26). On February 9, 2010, Petitioner pled guilty to all three charges. (Id. at 1-26). Early in the hearing, Petitioner stated that he did not want to plead guilty, and the court asked that the jury panel be brought in to select a jury for Petitioner's trial. (Id. at 10). After a break and conference with his counsel, Petitioner decided that he did wish to proceed with pleading guilty. (Id. at 11, 13). Petitioner stated that he was not the shooter, as the prosecution claimed, but agreed with all other facts presented by the prosecution and agreed that he had aided and abetted the crime. (Id. at 17). The court found his plea to have a substantial factual basis and to be made voluntarily. (Id. ).

On April 29, 2010, Petitioner filed an application for post-conviction relief (PCR), claiming ineffective assistance of counsel and that there was no evidence to connect Petitioner to the crime. (Id. at 28-30). PCR counsel raised additional ineffective assistance of counsel claims. (Id. at 40-43). Petitioner's PCR application was dismissed on August 29, 2011. (Id. at 100-08). Petitioner filed a Rule 59(e) motion, which was denied. (Id. at 109-18, 122). Petitioner filed a Notice of Appeal of the PCR court's order on October 27, 2011, (Dkt. No. 17-5), the Court of Appeals denied the petition for certiorari on July 17, 2014, and remittitur was issued on August 7, 2014. (Dkt. Nos. 17-8, 17-9). The instant habeas petition followed.

The Petitioner raises four grounds for relief: (1) ineffective assistance of counsel, (2) "[b]eing detain[ed] and continuously held without proper process, " (3) "subject matter jurisdiction/lack of jurisdiction, no legal' indictments, " (4) "Brady Violation = Rule 5 SCRCP violation." (Dkt. No. 1 at 5, 6, 8, 10). The Magistrate Judge recommended that Respondent's motion for summary judgment be granted, finding that (1) Grounds Two and Three were procedurally barred and that (2) as to Grounds One and Four, Petitioner had failed to show the state court's decision 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. (Dkt. No. 25). The Magistrate Judge also recommended denying Petitioner's request to stay the proceedings so that he could exhaust his administrative remedies, because they were already exhausted. (Id. at 6-7). Petitioner filed timely objections. (Dkt. No. 28).

II. 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. A. Civ. P. 72(b).

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 adjudication of 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).

III. Discussion

A. Procedurally Barred Claims - Grounds Two and Three

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.").

Petitioner did not raise Grounds Two and Three in his PCR proceeding. (Dkt. No. 17-1 at 28-30, 40-43). Because they were not raised in the first PCR proceeding, Petitioner is barred under South Carolina law from raising these claims in state court. See Matthews v. Evatt, 105 F.3d 907, 915 (4th Cir. 1997) (holding South Carolina law bars successive PCR petitions unless the application can point to facts and circumstances that demonstrate the claim could not have been raised in the first PCR proceeding), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, Petitioner ...


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