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Portee v. Stevenson

United States District Court, D. South Carolina, Anderson/Greenwood Division

February 22, 2016

John Portee, Jr., # 263560, Petitioner,
Warden Robert Stevenson, III, Respondent.


PATRICK MICHAEL DUFFY United States District Judge

This matter is before the Court on review of United States Magistrate Judge Jacquelyn D. Austin’s report and recommendation (“R & R”) (ECF No. 48) that the Court grant Respondent’s summary judgment motion (ECF No. 26). Petitioner has filed objections to the R & R (ECF No. 50). For the reasons provided herein, the Court overrules the objections, grants the summary judgment motion, and dismisses the case.


The R & R explains in detail the factual background and procedural history of this case, as well as the applicable law. There are no objections to those portions of the R & R. With two exceptions, [1] Court adopts those portions of the R & R. The Court adds only that after the Magistrate Judge issued her R & R, Petitioner filed timely objections.


The Magistrate Judge makes only a recommendation to this Court. The R & R has no presumptive weight, and the responsibility for making a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). Parties may make written objections to the Magistrate Judge’s proposed findings and recommendations within fourteen days after being served with a copy of the R & R. 28 U.S.C. § 636(b)(1). This Court must conduct a de novo review of any portion of the R & R to which a specific objection is made, and the Court may accept, reject, or modify the Magistrate Judge’s findings and recommendations in whole or in part. Id. Additionally, the Court may receive more evidence or recommit the matter to the Magistrate Judge with instructions. Id. A party’s failure to object is taken as the party’s agreement with the Magistrate Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140 (1985). Absent a timely, specific objection-or as to those portions of the R & R to which no specific objection is 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.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee’s note).


Petitioner’s objections all relate to the Magistrate Judge’s conclusions on Grounds 2, 3, 4, 6, 8, 9, and 10.[2] The Magistrate Judge found that all of those grounds are procedurally defaulted and that Petitioner has not established any basis for this Court to review the merits of those grounds. Petitioner argues Grounds 2, 3, 4, and 6 are not procedurally defaulted. In addition, he claims all defaulted grounds should be addressed on their merits because cause and prejudice excuse the default and because he is actually innocent of the crimes for which he has been convicted. The Court will first address the arguments on procedural default as well as cause and prejudice, as they relate to each of the seven grounds. It will then separately address the actual-innocence argument.

I. Ground 2: Prosecutorial Misconduct

Petitioner claims the prosecution improperly coerced a witness into testifying falsely against him at trial. The Magistrate Judge found that the ground was procedurally defaulted because it was not raised on direct appeal and that Petitioner has not established an excuse for the default. Petitioner objects to both of those conclusions.

Petitioner does not deny that his prosecutorial misconduct claim was not raised on direct appeal.[3] Instead, he points out that he made the claim in his PCR application. That, however, was not the appropriate place to do so. Under South Carolina law, “[i]ssues that could have been raised at trial or on direct appeal cannot be asserted in an application for post-conviction relief . . . .” Drayton v. Evatt, 430 S.E.2d 517, 520 (S.C. 1993) (citing Hyman v. State, 299 S.E.2d 330 (S.C. 1983)). Prosecutorial misconduct is such an issue. See, e.g., State v. Inman, 720 S.E.2d 31, 43-45 (S.C. 2011) (addressing, on direct appeal, trial judge’s finding that prosecutors engaged in misconduct by intimidating witness). Accordingly, asserting prosecutorial misconduct in the PCR proceedings was futile. The Magistrate Judge correctly determined that Petitioner’s claim is defaulted because it was not raised in the appropriate proceeding.

Recognizing that this ground and others are procedurally defaulted, Petitioner broadly asserts that any defaults of his § 2254 grounds were caused by ineffective assistance of counsel. A procedurally defaulted claim can nonetheless be reviewed on its merits if the petitioner demonstrates “cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). “[A]n attorney’s errors during an appeal on direct review may provide cause to excuse a procedural default . . . .” Martinez v. Ryan, 132 S.Ct. 1309, 1317 (2012). Accordingly, within the context of Ground 2, the Court construes Petitioner’s assertion as an argument that appellate counsel caused the procedural default of Ground 2 by failing to raise it on direct appeal.

The Court must reject Petitioner’s argument. An attorney’s failure to present an issue on direct appeal can constitute cause for that procedural default, but only if that failure violated the Sixth Amendment’s right to counsel. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). “In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim.” Id. “[P]rinciples of comity and federalism” require that such an ineffective-assistance claim “‘be presented to the state courts as an independent claim before it may be used [in a § 2254 proceeding] to establish cause for a procedural default.’” Id. at 451, 452 (quoting Murray, 477 U.S. at 489).

Petitioner’s ineffective-assistance claim regarding appellate counsel was not presented in state court. South Carolina requires that ineffective-assistance claims be raised in PCR proceedings. E.g., State v. Kornahrens, 350 S.E.2d 180, 184 (S.C. 1986). In his PCR application, Petitioner alleged appellate counsel failed to raise several issues that were preserved for review. However, prosecutorial misconduct was not one of the issues that Petitioner faulted appellate counsel for omitting. Thus, he cannot use appellate counsel’s purportedly deficient performance to excuse the procedural default of Ground 2; that issue is, itself, procedurally defaulted. See Edwards, 529 U.S. at 453 (“[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted . . . .”).

Petitioner’s assertion that ineffective assistance caused all his procedural defaults includes an argument that PCR counsel erred by not raising appellate counsel’s ineffectiveness. In some circumstances, “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s default of [a § 2254 petition’s claim of] ineffective assistance at trial.” Martinez, 132 S.Ct. at 1315. Petitioner appears to be contending that PCR counsel’s omission excuses the default of his ineffective appellate counsel defense. Martinez, however, applies only where a claim of ineffective trial counsel asserted in a § 2254 petition is procedurally defaulted because of a lack of effective legal assistance during the first level of state-court collateral review. See Hamm v. Comm’r, 620 F. App’x 752, 763 (11th Cir. 2015) (per curiam) (“The Supreme Court took pains . . . to emphasize the narrow and limited nature of its holding in Martinez . . . .”). Here, PCR counsel’s alleged deficiency is one step removed from that scenario; instead of PCR counsel’s error defaulting the underlying § 2254 ground, it defaulted a basis for excusing the default of that underlying ground. A second distinction is that PCR counsel’s alleged deficiency relates to an issue of ineffective appellate counsel, not ineffective trial counsel. See Neumon v. Cartledge, No. 8:14-cv-2556-RMG, 2015 WL 4607732, at *11 n.12 (D.S.C. July 31, 2015) (noting “[i]t has been generally held that Martinez does not apply to ineffective assistance of appellate counsel claims” and collecting cases). Finally, as the Magistrate Judge recognized, Martinez does not extend to Ground 2, a prosecutorial misconduct claim, because it does not involve the conduct of any defense attorney. See Hilton v. McCall, No. 1:12-cv-1540-TMC, 2013 WL 4017341, at *2 (D.S.C. Aug. 5, 2013) (holding Martinez did not apply where underlying defaulted ground was one of prosecutorial misconduct). For each of those three reasons, Petitioner’s argument categorically fails.

In Edwards, the Supreme Court noted that
[t]o hold, as we do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that that procedural default may not itself be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim.

529 U.S. at 453. Conceivably, then, merits review of Ground 2 might be appropriate if there were some other basis for excusing the default of Petitioner’s ineffective-assistance argument on appellate counsel’s omission of Ground 2 from the direct appeal. The Court has considered whether there is any such basis. Seeing none in the record, the Court agrees with the Magistrate Judge that Ground 2 is procedurally defaulted and that Petitioner has not shown cause and prejudice excusing ...

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