United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT, Magistrate Judge.
Craig Shane Rolen, a self-represented state prisoner, filed
this petition for a writ of habeas corpus pursuant to 28
U.S.C. Â§ 2254. This matter comes before the court pursuant to
28 U.S.C. Â§ 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.)
for a Report and Recommendation on the respondent's
motion for summary judgment. (ECF No. 10.) Pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Rolen was advised of the summary judgment and dismissal
procedures and the possible consequences if he failed to
respond adequately to the respondent's motion. (ECF No.
12.) Rolen filed a response in opposition to the
respondent's motion. (ECF No. 21.) Having carefully
considered the parties' submissions and the record in
this case, the court concludes that the respondent's
motion for summary judgment should be granted and Rolen's
was indicted in November 2003 in Greenville County for murder
(03-GS-23-8222). (App. at 267-68, ECF No. 11-1 at 269-70.)
Rolen was represented by Everett P. Godfrey, Jr., Esquire,
and on April 11, 2005 pled guilty as charged. (App. at 1-15,
ECF No. 18-1 at 3-17.) The circuit court sentenced Rolen to
twenty-five years' imprisonment. (App. at 14-15, ECF No.
11-1 at 16-17.) Rolen did not appeal his plea or sentence.
filed a pro se application for post-conviction
relief on August 5, 2005 ("2005 PCR") in which he
raised claims that his guilty plea was involuntary, and that
counsel was ineffective for (1) not objecting to the
sentence; (2) not objecting to Rolen's involuntary plea
in court; (3) not contacting three alibi witnesses; and (4)
not investigating. (See Rolen v. State of South
Carolina, 05-CP-23-4930; App. at 17-22, ECF No. 11-1 at
19-24). The State filed a return. (App. at 26-30, ECF No.
11-1 at 28-32.) On April 19, 2006, the PCR court held an
evidentiary hearing at which Rolen appeared and testified and
was represented by Caroline Horlbeck, Esquire. By order filed
July 14, 2006 the PCR court denied and dismissed with
prejudice Rolen's 2005 PCR application. (App. at 254-63,
ECF No. 11-1 at 256-65.)
appeal, Rolen was represented by Wanda H. Carter, Esquire,
Deputy Chief Attorney with the South Carolina Commission on
Indigent Defense, who filed a Johnson petition for a writ
of certiorari that presented the following issues:
1. Trial counsel erred in failing to move for the withdrawal
of the plea or in the alternate to have the plea vacated
after petitioner asserted his innocence during the plea
2. The PCR court erred in denying petitioner's allegation
that he did not voluntarily waive his right to a direct
appeal in the case.
(ECF No. 11-3.) By order issued December 18, 2007, the South
Carolina Supreme Court directed the parties to address the
1. Was counsel ineffective in failing to move to withdraw
petitioner's guilty plea after petitioner repeatedly
asserted his innocence after the plea was accepted but before
petitioner was sentenced?
2. Was counsel ineffective in failing to advise petitioner
that he had a right to a direct appeal after petitioner
repeatedly asserted his innocence during the guilty plea?
(ECF No. 11-4.) Counsel for Rolen filed a petition for a writ
of certiorari on January 17, 2008 (ECF No. 11-5), and the
State filed a return (ECF No. 11-6). The South Carolina
Supreme Court granted the petition for a writ of certiorari
on March 20, 2008 and directed the parties to file briefs.
(ECF No. 11-7; see also ECF Nos. 11-8 & 11-9.) By order filed
June 29, 2009, the South Carolina Supreme Court reversed the
PCR court's order, and remanded the case "to the
point after formal acceptance of the guilty plea." (ECF
No. 11-10 at 7.) Additionally, the court stated that
"[i]f the plea court grants the motion to withdraw the
plea, the case shall be placed on the trial docket and
proceed in the usual manner; if the court denies the motion
to withdraw the plea, the prior sentence will stand, and
Petitioner may pursue his right to a direct appeal."
(Id.) The State file a petition for rehearing (ECF No.
11-11), which was denied by order filed October 21, 2009 (ECF
No. 11-12). The remittitur was issued on October 21, 2009.
(ECF No. 11-13.)
circuit court held a hearing on April 5, 2010, at which time
counsel for Rolen moved to withdraw Rolen's guilty plea.
(ECF No. 11-14 at 19-33.) By order issued June 3, 2010, the
circuit court denied Rolen's motion. (ECF No. 11-14 at
timely appealed and was represented by LaNelle Cantey DuRant,
Esquire, Appellate Defender with the South Carolina
Commission on Indigent Defense, who filed a brief on
Rolen's behalf that raised the following issue:
Did the circuit court err in denying Rolen's motion to
withdraw his guilty plea when he denied his guilt; explained
that he confessed only because he was depressed and suicidal
over losing his children; and he provided three names of
alibi witnesses. The court's ruling on remand, consonant
with the state's argument that the state would be
prejudiced because the case was too old to find witnesses,
was prejudicial to Rolen and not in keeping with the purpose
of the remand as directed by the Supreme Court in Rolen
v. State, 384 S.C. 409, 683 S.E.2d 471 (2009)?
(ECF No. 11-16.) On February 29, 2012, the South Carolina
Court of Appeals affirmed Rolen's conviction. (State v.
Rolen, Op. No. 2012-UP-085 (S.C. Ct. App. Feb. 29, 2012), ECF
No. 11-18.) The remittitur was issued on March 16, 2012. (ECF
filed a pro se application for post-conviction
relief on April 5, 2012 ("2012 PCR") in which he
raised the following claims:
I gave INV Wesley Smith a false confession to a murder I knew
nothing about, then I let Att Bill Godfrey talk me in to a
plea because he wasn't paid enough to do my trial.
I'm innocent. At the plea I told the family of the victim
the truth, I didn't do it. My lawyer failed to make
motion to withdraw at plea. He failed again at motion hearing
when new issue was raised. My lawyer, Bill Godfrey failed to
object to new issue raised by solicitor Kris Hodge at Motion
hearing, held in April, 2010. She said the case was too old
to go to trial. That was going against the Supreme Court
ruling. Opinion # 26678.
(See Rolen v. State of South Carolina,
12-CP-23-2385, ECF No. 11-20) (errors in original). The State
filed a return and motion to dismiss. (ECF No. 11-14 at
47-52.) On February 19, 2014, the PCR court held an
evidentiary hearing at which Rolen appeared and testified and
was represented by Mills Ariail, Esquire. By order filed
March 25, 2014 the PCR court denied and dismissed with
prejudice Rolen's 2012 PCR application. (ECF No. 11-14 at
appeal, Rolen was represented by Kathrine H. Hudgins,
Esquire, Appellate Defender with the South Carolina
Commission on Indigent Defense, who filed a
Johnson petition for a writ of certiorari that
presented the following issue:
Did the PCR judge err in refusing to find counsel ineffective
when, the South Carolina Supreme Court found counsel
ineffective for failing to move to withdraw the guilty plea
and remanded to the trial court to allow Petitioner to move
to withdraw the guilty plea, and during the motion to
withdraw the guilty plea, which was denied by the plea judge,
the same counsel, already found to have been ineffective,
represented Petitioner again and failed to object when the
assistant solicitor argued that the State would be severely
prejudiced if the motion to withdraw the guilty plea was
(ECF No. 11-22.) Rolen filed a pro se response to
the Johnson petition in which he stated as follows:
When I was taken back to Greenville to make this motion, I
was told by Bill Godfrey, that Solicitor Kris Hodge sent him
to represent me. I did not want him to.... If it were this
courts ruling to go back like it was 2005, same solicitor,
same judge, same lawyer. Then wasn't it wrong for Bill
Godfrey not to object to solicitors new issue she raised at
the motion heaing that the case was too old to try. This was
in April, 2010....
Bill Godfrey has failed to speak up twice and it has severley
cost me. Please look at all this closely. I spoke up at my
plea hearing because I'm innocent. I gave a false
confession. That's why I spoke up. Attorney Bill Godfrey
had me scared I was gonna get a life sentence.
(ECF No. 11-24 at 1-2) (internal citations omitted, errors in
original). On February 4, 2015, the South Carolina Supreme
Court issued an order denying Rolen's petition for a writ
of certiorari. (ECF No. 11-25.) The remittitur was issued on
February 20, 2015. (ECF No. 11-26.) This action followed.
federal Petition for a writ of habeas corpus raises the
Ground One: The Plea judge abused his discretion in denying
petitioner's Motion to withdraw guilty plea
Ground Two: Ineffective Assistance of Counsel
Supporting Facts: Trial counsel was ineffective for failing
to object to what the Solicitor said at the motion hearing on
Ground Three: Ineffective Assistance of Counsel failure to
investigate and prepare for trial
Supporting Facts: Trial Counsel was not diligent when it came
to him locating petitioner's alibi witnesses and using
their testimony to prepare a defense. These alibi witnesses
could have played a bit part in petitioner's defense to
help prove he was innocent.
(Pet., ECF No. 1) (errors in original).
Summary Judgment Standard
judgment is appropriate only if the moving party "shows
that there is no genuine dispute as to any material fact and
the [moving party] is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). A party may support or refute
that a material fact is not disputed by "citing to
particular parts of materials in the record" or by
"showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact." Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of
summary judgment "against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case." Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
deciding whether there is a genuine issue of material fact,
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.
moving party has the burden of proving that summary judgment
is appropriate. Once the moving party makes this showing,
however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or
other means permitted by the Rule, set forth specific facts
showing that there is a genuine issue for trial. See
Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at
322. Further, while the federal court is charged with
liberally construing a petition filed by a pro se
litigant to allow the development of a potentially
meritorious case, see, e.g., Cruz v. Beto, 405 U.S.
319 (1972), the requirement of liberal construction does not
mean that the court can ignore a clear failure in the
pleadings to allege facts which set forth a federal claim,
nor can the court assume the existence of a genuine issue of
material fact where none exists. Weller v. Dep't of
Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
Habeas Corpus Standard of Review
accordance with the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), claims adjudicated on the
merits in a state court proceeding cannot be a basis for
federal habeas corpus relief unless the decision was
"contrary to, or involved an unreasonable application of
clearly established federal law as decided by the Supreme
Court of the United States, " or the decision "was
based on an unreasonable determination of the facts in light
of the evidence presented in the state court
proceeding." 28 U.S.C. Â§ 2254(d)(1), (2). When reviewing
a state court's application of federal law, "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, 410 (2000); see also White v.
Woodall, 134 S.Ct. 1697, 1702 (2014) (describing an
"unreasonable application" as "objectively
unreasonable, not merely wrong" and that "even
clear error will not suffice") (internal quotation marks
and citation omitted); Harrington v. Richter, 562
U.S. 86, 100 (2011); Humphries v. Ozmint, 397 F.3d
206 (4th Cir. 2005); McHone v. Polk, 392 F.3d 691
(4th Cir. 2004). 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. Â§ 2254(e)(1).
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, 562 U.S. at
101 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)); see also White, 134 S.Ct. at 1702
(stating that "[a]s a condition for obtaining habeas
corpus from a federal court, 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'") (alteration in original) (quoting
Harrington, 562 U.S. at 103). Under the AEDPA, a
state court's decision "must be granted a deference
and latitude that are not in operation" when the case is
being considered on direct review. Harrington, 562
U.S. at 101. Moreover, review of a state court decision under
the AEDPA standard does not require an opinion from the state
court explaining its reasoning. See id. at 98 (finding that
"[t]here is no text in [Â§ 2254] requiring a statement of
reasons" by the state court). If no explanation
accompanies the state court's decision, a federal habeas
petitioner must show that there was no reasonable basis for
the state court to deny relief. Id . Pursuant to Â§
2254(d), a federal habeas court must (1) determine what
arguments or theories supported or could have supported the
state court's decision; and then (2) ask whether it is
possible that fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding of a
prior decision of the United States Supreme Court.
Id. at 102. "If this standard is difficult to
meet, that is because it was meant to be." Id .
Section 2254(d) codifies the view that habeas corpus is a
"guard against extreme malfunctions in the state
criminal justice systems, ' not a substitute for ordinary
error correction through appeal." Id. at 102-03
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5
(1979) (Stevens, J., concurring in judgment)).
habeas corpus petitioner may obtain relief in federal court
only after he has exhausted his state court remedies. 28
U.S.C. Â§ 2254(b)(1)(A). "To satisfy the exhaustion
requirement, a habeas petitioner must present his claims to
the state's highest court." Matthews v.
Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on
other grounds by United States v. Barnette, 644 F.3d
192 (4th Cir. 2011); see also In re Exhaustion of State
Remedies in Criminal and Post-Conviction Relief Cases,
471 S.E.2d 454, 454 (S.C. 1990) (holding that "when the
claim has been presented to the Court of Appeals or the
Supreme Court, and relief has been denied, the litigant shall
be deemed to have exhausted all available state
remedies."). To exhaust his available state court
remedies, a petitioner must "fairly present to the
state court both the operative facts and the controlling
legal principles associated with each claim."
Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir.
2004) (internal quotation marks and citation omitted). Thus,
a federal court may consider only those issues which have
been properly presented to the state appellate courts with
jurisdiction to decide them. Generally, a federal habeas
court should not review the merits of claims that would be
found to be procedurally defaulted (or barred) under
independent and adequate state procedural rules. Lawrence
v. Branker, 517 F.3d 700, 714 (4th Cir. 2008);
Longworth, 377 F.3d 437; see also Coleman v.
Thompson, 501 U.S. 722 (1991). For a procedurally
defaulted claim to be properly considered by a federal habeas
court, the petitioner must "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, 501 U.S. at 750.
Summary Judgment Motion
Ground One-Not Cognizable
first claim for relief, Rolen asserts that the plea court
abused its discretion in denying his motion to withdraw his
plea. (Pet., ECF No. 1 at 5.) The respondent argues that
Rolen's first claim is not cognizable as it fails to
allege any violation of federal law. (Respt.'s Mem. Supp.
Summ. J., ECF No. 11 at 28-29.) This court agrees.
well established that the scope of federal habeas review is
limited to questions of either the federal Constitution or
laws, and does not extend to reexamination of a state
court's interpretation and application of a state law.
See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); see
also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991);
Wright v. Angelone, 151 F.3d 151, 157 (4th Cir.
1998). As explained by the respondent, in South Carolina
criminal cases, "once a defendant enters a guilty plea,
whether to allow withdrawal of the plea is left to the sound
discretion of the circuit court." State v.
Thomason, 584 S.E.2d 143, 146 (S.C. Ct. App. 2003)
(citing State v. Riddle, 292 S.E.2d. 795, 796 (S.C.
1982)). The decision to permit a defendant to withdraw his
plea invokes the trial court's discretion, the abuse of
which is not a basis for habeas corpus relief. See e.g.,
Sinistaj v. Burt, 66 F.3d 804, 808 (6th Cir. 1995)
(finding no authority for the proposition that a state
court's abuse of discretion in denying a defendant's
motion to withdraw a waiver of jury trial violates the United
States Constitution); see also Pulley v. Harris, 465
U.S. 37, 41 (1984) ("A federal court may not issue the
writ on the basis of a perceived error of state law.").
Since this claim is not cognizable in a federal habeas
petition, summary judgment should be granted as to Ground
Ineffective Assistance of Counsel Generally
defendant has a constitutional right to the effective
assistance of counsel. To demonstrate ineffective assistance
of counsel, a petitioner must show, pursuant to the two-prong
test enunciated in Strickland v. Washington, 466
U.S. 668 (1984), that (1) his counsel was deficient in his
representation and (2) he was prejudiced as a result.
Id. at 687; see also Williams v. Taylor,
529 U.S. 362, 391 (2000) (stating that "the ...