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Robertson v. State

Supreme Court of South Carolina

December 14, 2016

James D. Robertson, Petitioner,
State of South Carolina, Respondent. Appellate Case No. 2012-205909

          Heard October 8, 2015


         Appeal From York County Lee S. Alford, Circuit Court Judge


          Keir M. Weyble, of Cornell Law School, of Ithaca, New York, and Emily C. Paavola, of Justice 360, of Columbia, both for Petitioner.

          Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka and Senior Assistant Attorney General William Edgar Salter, III, all of Columbia, for Respondent.


         In this capital Post-Conviction Relief ("PCR") case, James D. Robertson ("Petitioner") filed a second PCR application alleging, among other things, that his prior PCR counsel were not qualified under section 17-27-160(B) of the South Carolina Code[1] and failed to competently represent him. Without a hearing, the PCR judge dismissed the application on the grounds that it was successive and barred by the one-year statute of limitations and laches. This Court granted certiorari to review the circuit court's dismissal of Petitioner's application. Petitioner contends his second PCR application should not have been summarily dismissed as successive because his case presents unique circumstances warranting review of prior PCR counsel's assistance under Martinez v. Ryan, 132 S.Ct. 1309 (2012).[2] We reverse and remand.

         I. Factual / Procedural History

         On March 26, 1999, Petitioner was convicted and sentenced to death for the 1997 murder of his parents, armed robbery, and financial transaction card fraud. Over the course of the next four years, Petitioner filed a direct appeal through appointed counsel, moved to relieve appointed appellate counsel, and filed a pro se appeal to this Court on July 25, 2003. Ultimately, following a judicial determination of competency, Petitioner waived his right to direct appeal. On June 3, 2005, this Court dismissed Petitioner's direct appeal after conducting the proportionality review mandated by section 16-3-25[3] of the South Carolina Code.

         On July 7, 2005, this Court granted Petitioner's request for a stay of execution to pursue PCR. This Court also appointed then Circuit Court Judge John Few to preside over the PCR proceedings. Judge Few appointed Michael Langford Brown, Jr., and Joseph D. Matlock, both of Rock Hill, to represent Petitioner.[4]

         On March 1, 2006, Petitioner filed a PCR application (the "2006 Application") generally alleging ineffectiveness of trial counsel. At the beginning of the PCR hearing, Petitioner's counsel verbally amended the application to include twelve grounds of ineffectiveness of trial counsel. Following a three-day hearing, Judge Few denied relief and issued an Order of Dismissal on March 24, 2008. In a letter dated October 6, 2010, this Court denied Petitioner's request for a writ of certiorari.

         On January 7, 2011, Petitioner, with the assistance of federally appointed counsel, [5] simultaneously filed a second PCR application in state court and a Petition for a Writ of Habeas Corpus in the United States District Court for the District of South Carolina. By order dated April 8, 2011, a federal magistrate stayed the federal proceedings pending the exhaustion of Petitioner's state court remedies.

         In his second PCR application (the "2011 Application"), Petitioner sought to have his convictions and sentences reversed based on trial court error as well as ineffective assistance of trial counsel, appellate counsel, and prior PCR counsel. With respect to PCR counsel, Petitioner alleged that his prior PCR counsel were not qualified under section 17-27-160(B)[6] and failed to competently represent him.[7] The State filed a Return and a Motion to Dismiss alleging, among other things, that the 2011 Application was barred by the one-year statute of limitations, [8]impermissibly successive to the 2006 Application, barred by laches, and lacked merit. In Reply, Petitioner urged the PCR judge to deny the motion to dismiss and (1) allow the case to proceed to an evidentiary hearing and final adjudication, or (2) hold the case in abeyance until Martinez and Maples[9] were resolved by the United States Supreme Court.

         By order dated September 20, 2011, Circuit Court Judge Lee S. Alford summarily dismissed the 2011 Application. In so ruling, the PCR judge found Petitioner's allegation of ineffectiveness of original PCR counsel was not a cognizable state claim that justified filing an untimely, successive PCR application.

         Specifically, the judge held: (1) the 2011 Application was barred by the one-year statute of limitations as it was filed more than five years after Petitioner's direct appeal was dismissed on June 22, 2005 and the appointment of original PCR counsel on September 23, 2005; (2) the 2011 Application was impermissibly successive because an allegation that original PCR counsel were ineffective is not a sufficient reason to allow a successive PCR application; (3) Petitioner waived his right to challenge whether his original PCR counsel were statutorily qualified by failing to object to lead counsel's qualifications during the 2006 PCR hearing; (4) Petitioner failed to prove that original PCR counsel were not statutorily qualified to represent him given there was no evidence to the contrary and Petitioner erroneously construed the statutory requirements for appointment of PCR counsel in a capital case;[10] (5) Petitioner failed to prove that his original PCR counsel had not performed competently under Strickland v. Washington, 466 U.S. 668 (1984) because the mere allegation that new PCR counsel would have raised different grounds in the 2006 PCR action did not establish deficient performance or prejudice; (6) no due process violation occurred during the 2006 PCR action because Petitioner was provided counsel and meaningful access to the courts; (7) no equal protection violation occurred during the 2006 PCR action because Petitioner could not show disparate treatment based upon his status as an indigent defendant; (8) the decision of the United States Supreme Court to grant certiorari in Martinez and Maples did not mandate the relief sought by Petitioner given a favorable decision in those cases would only address whether a procedural default may be excused in federal court not state court; (9) laches barred relief; (10) Petitioner's allegations of trial court error are not cognizable PCR claims; and (11) Petitioner's allegations of ineffective assistance of original PCR counsel are not cognizable PCR claims.

         Petitioner filed a motion to reconsider pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure. Petitioner objected to, among other things, the PCR judge's dismissal without a hearing, particularly where there was a disagreement between the parties regarding whether original PCR counsel met the statutory qualifications to be appointed in a capital PCR case. In support of this assertion, Petitioner supplemented the motion with: (1) affidavits confirming that neither Brown nor Matlock were qualified; and (2) a published opinion wherein Brown was publicly reprimanded for professional misconduct, which stemmed from substance abuse that occurred in July 2007.

         The judge denied the motion, finding Brown had death penalty experience and there was no evidence that Brown's substance abuse problems affected his effectiveness in representing Petitioner in the 2006 PCR action. Additionally, the judge found that any failure to comply with section 17-27-160 did not violate Petitioner's constitutional rights because the statute does not create an independent, constitutional right. Finally, even assuming the State did not comply with section 17-27-160, the judge concluded that Petitioner failed to demonstrate prejudice. This Court granted Petitioner's request for a writ of certiorari to review the PCR judge's order.

         II. Discussion

         A. Arguments

         Petitioner seeks for this Court to vacate the PCR judge's order summarily dismissing his 2011 Application and remand for a hearing. As the basis for this relief, Petitioner asserts that this Court, in response to Martinez, should amend existing state court PCR proceedings to permit Petitioner to file a second PCR application. While acknowledging the existing prohibition against successive PCR applications under section 17-27-90 and cases interpreting the statute, Petitioner maintains that this law should be re-evaluated based on Martinez. Additionally, because Petitioner claims that prior PCR counsel were not qualified under section 17-27-160(B) and were ineffective, he contends that these reasons were sufficient to allow him to file a timely, successive PCR application and require a hearing on the merits. Due to the alleged deficiencies in prior PCR counsel's representation, Petitioner avers that he was denied a full and fair opportunity to present his claims.

         B. Procedural Default in PCR Proceedings

         The South Carolina Legislature enacted the Uniform Post-Conviction Procedure Act to govern all aspects of PCR, including strict time deadlines and the appointment of counsel in capital PCR proceedings. S.C. Code Ann. §§ 17-27-10 to -160 (2014). A PCR application must be filed within one year after the entry of a judgment of conviction, or if there is an appeal, within one year after the sending of the remittitur to the lower court from an appeal or the filing of the final decision upon an appeal, whichever is later. Id. § 17-27-45(A). However, "[i]f the applicant contends that there is evidence of material facts not previously presented and heard that requires vacation of the conviction or sentence, the application must be filed under this chapter within one year after the date of actual discovery of the facts by the applicant or after the date when the facts could have been ascertained by the exercise of reasonable diligence." Id. § 17-27-45(C).

         "All applicants are entitled to a full and fair opportunity to present claims in one PCR application." Odom v. State, 337 S.C. 256, 261, 523 S.E.2d 753, 755 (1999). "Successive PCR applications and appeals are generally disfavored because they allow an applicant to receive more than 'one bite at the apple as it were.'" Id.

         Section 17-27-90 of the South Carolina Code generally prohibits the filing of successive PCR applications, stating:

All grounds for relief available to an applicant under this chapter must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended application.

S.C. Code Ann. § 17-27-90 (2014) (emphasis added). In Aice v. State, this Court interpreted section 17-27-90 to forbid "a successive PCR application unless an applicant can point to a 'sufficient reason' why the new grounds for relief he asserts were not raised, or were not raised properly." Aice v. State, 305 S.C. 448, 450, 409 S.E.2d 392, 394 (1991). The Court in Aice acknowledged that there may be "unique" circumstances, [11] where a PCR counsel's assistance could be challenged in a successive application. Id. at 451, 409 S.E.2d at 394. However, the Court expressly held "the contention that prior PCR counsel was ineffective is not per se a 'sufficient reason' allowing for a successive PCR application under § 17-27-90." Id.

         Despite the express holding in Aice, Petitioner argues that Martinez excuses the procedural bar of section 17-27-90. In Martinez, the "precise question" addressed by the United States Supreme Court ("USSC") was "whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding." Martinez, 132 S.Ct. at 1315. The USSC answered this question by holding that:

[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Id. at 1320. In reaching this conclusion, the USSC recognized that federal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are governed by rules designed to ensure that state-court judgments are accorded finality and respect necessary to preserve the integrity of legal proceedings within the ...

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