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Robinson v. McFadden

United States District Court, D. South Carolina, Orangeburg Division

September 30, 2016

Corey Jawan Robinson, Petitioner,
v.
Joseph McFadden, Warden, Respondent.

          ORDER AND OPINION

         Petitioner Corey Jawan Robinson (“Petitioner”), a state prisoner, filed this pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging thirteen numbered Grounds for relief. (ECF No. 1.) In Grounds Nine, Ten, and Eleven, respectively, Petitioner alleges that the trial court erred by not granting his motion to suppress evidence, by not granting his motion for directed verdict on the ground that the prosecution had failed to prove his actual or constructive possession of the drugs at issue in his case, and by allowing him to appear pro se at trial when he had not waived his right to counsel. (Id. at 19-21.) In Ground Seven, Petitioner alleges that his trial counsel rendered ineffective assistance of counsel (“IAC”) by failing to properly argue a motion to suppress and to request a Franks[1] hearing. (Id. at 17.) In Grounds One, Two, Three, and Four, respectively, Petitioner alleges that his counsel in his direct appeal rendered IAC by failing to file a merits brief on the issues of whether drugs used as evidence in Petitioner's trial should have been suppressed, whether a directed verdict was warranted because Petitioner was entitled to flee from an arresting officer who lacked reasonable suspicion to detain him, whether a directed verdict was warranted because of the prosecution's failure to prove actual or constructive possession of the drugs as an essential element of the crime, and whether the trial court abused its discretion in admitting physical evidence over Petitioner's objection. (Id. at 6-14.) In Grounds Five, Six, Eight, Twelve, and Thirteen, respectively, Petitioner alleges that his counsel during post-conviction relief (“PCR”) proceedings rendered IAC by failing to subpoena a video recording from a police car's camera, request a Franks hearing, and move for a continuance; failing to preserve prosecutorial misconduct and newly-discovered-evidence claims by filing a S.C. App. Ct. R. 59(e) motion; failing to conduct a substantial investigation of the record and amend the PCR application to include claims that the trial court erred in not granting Plaintiff's motion for a new trial and that appellate counsel rendered IAC by not raising this issue in a merits brief; failing to conduct a substantial investigation of the record after new evidence demonstrated prosecutorial misconduct and a Brady[2] violation; and failing to conduct a substantial investigation of the record after new evidence demonstrated prosecutorial misconduct under American Bar Association standards. (Id. at 15-16, 18, 22-23.)

         This matter is before the court on Respondent Joseph McFadden's (“Respondent”) Motion for Summary Judgment (ECF No. 47.)[3] In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02 D.S.C., the matter was referred to United States Magistrate Judge Kaymani D. West, for pre-trial handling. On March 2, 2016, the Magistrate Judge issued a Report and Recommendation recommending the court grant Respondent's Motion for Summary Judgment and deny the Petition. (ECF No. 58.) This review considers Petitioner's Objections to the Report and Recommendation (“Objections”) (ECF No. 64), Respondent's response thereto (ECF No. 66), and Petitioner's reply (ECF No. 68). For the reasons set forth herein, the court ACCEPTS IN PART and REJECTS IN PART the Magistrate Judge's Report and Recommendation (ECF No. 58), GRANTS IN PART and DENIES IN PART Respondent's Motion for Summary Judgment (ECF No. 46), DENIES Grounds One through Nine and Eleven through Thirteen of the Petition (ECF No. 1), and REMANDS the matter to the Magistrate Judge.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         The court concludes upon its own careful review of the record that the factual and procedural summation in the Report and Recommendation is accurate, except in one respect discussed below, and, aside from this exception, the court adopts the summary. The court will only recite herein facts pertinent to the analysis of Petitioner's Objections.

         The Magistrate Judge determined that Petitioner's claims under Grounds Two, Three, Four, Five, Six, Seven, Eight, Ten, Twelve, and Thirteen are procedurally barred because Petitioner has failed to exhaust the claims in state court, and the claims could no longer be raised there. (ECF No. 58 at 24.); see generally Woodford v. Ngo, 548 U.S. 81 (2006); Hedrick v. True, 443 F.3d 342 (4th Cir. 2006). With respect to Grounds Two, Three, Four, Seven, and Ten, the Magistrate Judge determined that, although Petitioner asserted that his failure to raise the claims should be excused under Martinez, [4] that case was of no aid to Petitioner because he failed to assert that the cause for his failure to raise the claims was his PCR counsel's error. (ECF No. 58 at 25.) With respect to Grounds Five, Six, Eight, Twelve, and Thirteen, she determined that Martinez did not apply because none of the underlying defaulted claims involved trial counsel's IAC. (Id. at 26-28.) The Magistrate Judge further found with respect to all of these Grounds that Petitioner had otherwise failed to demonstrate that cause and prejudice or a miscarriage of justice excused his procedural default. (Id. at 25-26.)

         The Magistrate Judge determined that the Ground One claim should be denied on the merits because the PCR court's decision to deny Petitioner's claim that his appellate counsel rendered IAC by not filing a merits brief on the issue of whether the drugs at issue in his case should have been suppressed was not an unreasonable application of clearly established federal law. (Id. at 29 (citing Williams v. Taylor, 529 U.S. 362, 398 (2000); Smith v. Robbins, 528 U.S. 259, 285 (2000); Jones v. Barnes, 463 U.S. 745, 751-52 (1983); Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986); Griffin v. Aiken, 775 F.2d 1226 (4th Cir. 1985); Southerland v. State, 524 S.E.2d 833, 836 (1999)).) Regarding Petitioner's Ground Nine claim, the Magistrate Judge noted that a state trial court's decision not to suppress evidence over Petitioner's objection based on the Fourth Amendment is not reviewable in a § 2254 proceedings so long as the state provided a mechanism for the Fourth Amendment argument to be heard and Petitioner's opportunity to fully and fairly present the argument through the mechanism was not impaired. (Id. at 31 (citing Stone v. Powell, 428 U.S. 465, 489-95 (1976); Doleman v. Murphy, 579 F.2d 1258, 1265 (4th Cir. 1978)).) The Magistrate Judge determined that, because the state provided a mechanism to address the argument and because Petitioner was afforded an opportunity to fully and fairly present it, the claim was not cognizable. (Id.) The Magistrate Judge determined that Petitioner procedurally defaulted his Ground Eleven claim because he failed to raise at trial any argument regarding his waiver of his right to counsel. (Id. at 32-33 (citing Weeks v. Angelone, 176 F.3d 249, 269 (4th Cir. 1999); Howard v. Moore, 131 F.3d 399, 420 (4th Cir. 1997); McKenzie v. Cartledge, No. 8:13-CV-02488-RBH, 2014 WL 3919711, at *2 (D.S.C. Aug. 11, 2014)).)

         II. LEGAL STANDARD AND ANALYSIS

         A. Standard of review

         The Magistrate Judge's Report and Recommendation is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Matthews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation, or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).

         B. The exhaustion requirement

         “Before seeking federal habeas review of a claim, a [state prisoner] ordinarily must raise that claim in the state court, complying with state procedural rules and exhausting available state remedies.” Gray v. Zook, 806 F.3d 783, 797-98 (4th Cir. 2015) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). “It is the general rule that after issues have been properly presented on direct appeal from a conviction to the highest state court to which resort may be had, a federal habeas petitioner will be deemed to have fully complied with the exhaustion requirement, since further resort to state courts may fairly be considered futile after the state's highest court has passed on the issues presented.” Thomson v. Peyton, 406 F.2d 473, 474 (4th Cir. 1968) (per curiam); accord O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); cf. Lyons v. Weisner, 247 F. App'x 440, 446 n.4 (4th Cir. 2007) (explaining petitioner “exhausted his claim by raising it on direct appeal [even though he did not raise it in state post-conviction proceeding], which is sufficient in North Carolina to exhaust a claim for federal habeas purposes”).

         The South Carolina Supreme Court has held that the presentation of claims to the South Carolina Court of Appeals, alone, is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). In McKennedy, the South Carolina Supreme Court specifically held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court “outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan.” 559 S.E.2d at 854. Accordingly, a claim would not be procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the South Carolina Court of Appeals, either after a direct appeal or after pursuing relief in a PCR application.

         In order to exhaust state remedies, a § 2254 petitioner must provide the state “the ‘opportunity to pass upon and correct alleged violation of . . . federal rights.'” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). “To provide the State with the necessary ‘opportunity, ' the [petitioner] must ‘fairly present' his claim in each appropriate state court . . ., thereby alerting that court to the federal nature of the claim.” Id. “[O]rdinarily a state prisoner does not ‘fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim.” Id. at 32.

         C. The ...


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