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Rolen v. Stevenson

United States District Court, D. South Carolina

January 19, 2016

Craig Shane Rolen, Petitioner,
v.
Warden Stevenson, Respondent.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT, Magistrate Judge.

         Petitioner Craig Shane Rolen, a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 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 Petition denied.

         BACKGROUND

         Rolen 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.

         Rolen 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.)

         On appeal, Rolen was represented by Wanda H. Carter, Esquire, Deputy Chief Attorney with the South Carolina Commission on Indigent Defense, who filed a Johnson[1] 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 proceedings.
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 following questions:

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.)

         The 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 35.)

         Rolen 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 No. 11-19.)

         Rolen 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 77-83.)

         On appeal, Rolen was represented by Kathrine H. Hudgins, Esquire, Appellate Defender with the South Carolina Commission on Indigent Defense, who filed a Johnson[2] 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 granted?

(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 HABEAS ISSUES

         Rolen's federal Petition for a writ of habeas corpus raises the following issues:

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 remand....
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).

         DISCUSSION

         A. Summary Judgment Standard

         Summary 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).

         In 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.

         The 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).

         B. Habeas Corpus Standard of Review

         In 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. § 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. § 2254(e)(1).

         "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, 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 [§ 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 § 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)).

         C. Exhaustion Requirements

         A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 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.

         D. Summary Judgment Motion

         1. Ground One-Not Cognizable

         In his 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.

         It is 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 One.

         2. Ineffective Assistance of Counsel Generally

         A 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 ...


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