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Pearson v. McFadden

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

August 15, 2017

Rayshawn Pearson, a/k/a/ Rayshawn Kalif Pearson Petitioner,
v.
Warden Joseph McFadden, Lieber Correctional Institution, Respondent.

          ORDER

          TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE.

         Petitioner, Rayshawn Pearson (“Petitioner”), a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge's Report and Recommendation (“Report”), recommending that Respondent's motion for summary judgment (ECF No. 35) be granted. (ECF No. 53). The parties were advised of their right to file objections to the Report, due by September 21, 2015. (ECF No. 53 at 33). No timely objections were filed and on October 19, 2015, the court filed an order adopting the magistrate judge's Report. (ECF No. 58). However, on October 19, 2015, a motion for extension of time to file objections by Petitioner was received by the clerk's office and filed. (ECF No. 61). Petitioner alleged that the prison had been on lockdown and that he had been unable to properly prepare a response to the magistrate judge's Report. Id. His motion for extension was granted on October 27, 2015. (ECF No. 62). Petitioner timely submitted objections to the mailroom on November 10, 2015. (ECF No. 65). However, due to the improper docketing of Petitioner's objections as a response to Respondent's summary judgment motion (ECF No. 35), the court's order was not vacated for proper consideration of Petitioner's objections until September 30, 2016. (ECF No. 69). In an order on September 30, 2016, the court stated that it would review Petitioner's timely filed objections (ECF No. 65) and would not consider any additional or new objections. (ECF No. 68). Upon the reopening of the case, Petitioner filed a motion to dismiss Respondent's claims. (ECF No. 72). Respondent filed a response on October 31, 2016. (ECF No. 74).[1]Petitioner filed a reply on January 4, 2017.[2] (ECF No. 81). On February 6, 2017, Petitioner filed a motion to amend his petition for habeas corpus. (ECF No. 82). On February 21, 2017, Respondent filed a response in opposition. (ECF No. 83). Petitioner filed a motion to appoint counsel on June 15, 2017 (ECF No. 92), and a motion to view all federal claims on June 19, 2017 (ECF No. 93). Respondent filed a response in opposition on July 3, 2017 (ECF No. 94).

         The magistrate judge makes only a recommendation to the court. The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the magistrate judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         I. Background[3]

         The magistrate judge set forth the background and procedural history in her Report. (ECF No. 53 at 2-6). Briefly, according to Respondent, the case stems from a pair of armed robberies of Workman's Grocery committed by Pearson and several other individuals. (ECF No. 36 at 2-3). On March 26, 2005, Pearson, carrying a firearm, entered the store with Adrian McCray (“McCray”) and Cedrick Butler (“Butler”), held victims Allissa Parker and Shirley Parker (“Mrs. Parker”) at gunpoint, and left after receiving a quantity of money. Id. On July 29, 2005, Pearson entered the same store, carrying a firearm, with Butler while McCray remaining outside in a vehicle. Id. at 3. Mrs. Parker and husband Clevy Parker (“Mr. Parker”) were operating the store. Id. During the robbery, Pearson shot Mr. Parker in the upper abdomen and left after receiving a quantity of money. Id. Mr. Parker subsequently died at the hospital from the gunshot wound. Id.

         On February 1, 2007, Pearson pled guilty to murder, two counts of armed robbery, and two counts of possession of a weapon during the commission of a violent crime. (ECF No. 53 at 2).[4]On May 3, 2007, Pearson was sentenced to life for murder, thirty years imprisonment on the first count of armed robbery, twenty-five years on the second count of armed robbery, and five years for possession of a weapon during the commission of a violent crime. Id.

         Pearson filed a direct appeal and the South Carolina Court of Appeals affirmed Pearson's conviction and sentence on May 28, 2009. Id. at 3. The remittitur was issued on June 15, 2009. Id. Pearson filed an application for post-conviction relief (“PCR”) on April 12, 2010. Id. After a hearing, the PCR court denied Pearson relief in an order filed November 8, 2012. Id. Pearson filed a timely appeal of the denial of his PCR application. Id. On August 21, 2014, the South Carolina Supreme Court denied Pearson's petition for a writ of certiorari. Id. The remittitur was issued September 8, 2014. Id. Pearson filed this habeas corpus petition on October 10, 2014, raising four grounds for relief.

         In her report, the magistrate judge addressed each of the following four grounds that Pearson raised in his habeas action:

Ground One: Ineffective Assistance of counsel. Trial counsel's failure to protect mentally retarded defendant's statutory and due process rights deprived Petitioner of his Sixth and Fourteen [sic] Amendments.[5]
Ground Two: Involuntary Guilty Plea. Petitioner's guilty plea is involuntary and unintelligent because plea counsel misrepresented the sentence that Petitioner was pleading guilty to in violation of his Sixth and Fourteenth Amendment rights.
Ground Three: Petitioner's sentence is unconstitutional because he is mentally retarded and had just turned eighteen only a couple of months prior to charged offenses, was sufficient mitigation.
Ground Four: Illegal sentence for possession of a weapon during the commission of a violent crime.

(ECF No. 53 at 5-6). The magistrate judge found that Pearson's claims were either procedurally defaulted or without merit. First, the magistrate judge detailed how the PCR judge addressed and rejected Pearson's claim alleging involuntary assistance of trial counsel according to the standard articulated in Strickland v. Washington, 466 U.S. 668 (1984) and Hill v. Lockhart, 474 U.S. 52 (1985). Id. at 7-12. Plea counsel testified at the PCR hearing that he moved for a psychological and mental evaluation which was conducted by the Department of Mental Health prior to Pearson's guilty plea which showed that Pearson was borderline mentally retarded with a low IQ; subpoenaed Pearson's school records; hired a private investigator to explore whether Pearson's mental state could have an impact on the case; spoke extensively with Pearson's family about the case and about Pearson's mental health; and shared the results of these findings with the plea court. Id. The magistrate judge concluded that the record failed to demonstrate that plea counsel was ineffective for failing to protect Pearson's statutory and due process rights.

         Next, the magistrate judge recounted how the PCR judge had addressed and rejected Pearson's claim that his guilty plea was involuntary. Id. Trial counsel testified at the PCR hearing that he never advised Pearson that Pearson would receive a sentence of thirty years imprisonment if he pled guilty but, rather, that he told Pearson there was still a significant risk of receiving life imprisonment but pleading guilty to all charges was the best chance Pearson had to receive less than a life sentence. Id. at 9-11. Trial counsel's testimony was supported by the plea[6] and sentencing transcripts, as well as a document signed by Pearson explaining the charges and noting that the victim's family would be asking for the sentencing court to impose a life sentence which was a possibility even if Pearson entered a guilty plea. (ECF Nos. 36-1 and 53 at 10-11, 17). Accordingly, the magistrate judge found that there was nothing reversible in the state court's findings and that Pearson failed to present any evidence that he did not intend to plead guilty to the charges, under oath to the presiding judge, without objection in open court.

         Finally, the magistrate judge found that Pearson failed to raise the issues in grounds three and four in his direct appeal or his PCR proceedings. As the issues were exhausted in state court, the magistrate judge concluded that federal habeas review was precluded absent a showing of cause and prejudice, actual innocence, or a showing that a fundamental miscarriage of justice would occur. (ECF No. 53 at 23). While Pearson alleged as a “cause” that PCR counsel was ineffective for failing to raise the above issues, the magistrate judge found that the exception articulated in Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012) did not apply because grounds three and four did not involve any ineffective assistance of counsel claims, thus, any alleged ineffectiveness of PCR counsel cannot be “cause” for a procedural default on those claims. Because issues three and four were procedurally defaulted at the trial/plea court level and not preserved, they could not have been raised on direct appeal and thus Pearson could not show any ineffective assistance of appellate counsel for failure to raise these issues. Further, the magistrate judge found that even if claims three and four could have been raised by appellate counsel, Pearson failed to show the necessary prejudice, that he was actually innocent, or that a fundamental miscarriage of justice would occur if the claims were not considered.

         II. Discussion

         A. Motion to Dismiss

         On October 17, 2016, Petitioner filed a motion which was docketed as a “Motion to Dismiss Respondent Claims.” (ECF No. 72). While the single paragraph motion is unclear, the court gleans that Petitioner argues that counts three and four of his habeas petition do not warrant procedural default as the magistrate judge recommended in her Report. He further states that he requested for his PCR attorney to file a 59(e) motion, however, the PCR attorney refused.

         Petitioner's argument against the finding of the magistrate judge would more properly be contained in his objections.[7] However, the court's order on September 30, 2016, stated that the court would not consider any additional objections. (ECF No. 68). Accordingly, to the extent that Petitioner's motion is an attempt to submit additional objections, the objections are not properly before the court.

         Even if the court were to consider Petitioner's contention, his argument has no merit. Construing his motion liberally, Petitioner may be attempting to argue that his procedural default on claims three and four should be excused due to PCR counsel's failure to file a motion under South Carolina Rule of Civil Procedure 59(e) with the PCR court.[8] Petitioner's argument, then, as construed by the court, is that PCR counsel was ineffective for failing to raise a Rule 59(e) motion.

         However, “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. 2254(i); see also Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012) (acknowledging that “§ 2254(i) precludes [a habeas petition] from relying on the ineffectiveness of his postconviction attorney as a ‘ground for relief”). See generally Bryant v. Maryland, 848 F.2d 492, 494 (4th Cir. 1988) (claims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas relief); Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (errors in state post-conviction proceedings are collateral to the conviction and sentence and do not give rise to a claim for federal habeas relief).

         In Coleman v. Thompson, 501 U.S. 722, 752 (1991), the United States Supreme Court held that any errors of PCR counsel cannot serve as a basis for cause to excuse a petitioner's procedural default of a claim. In Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme Court established a “limited qualification” and held that inadequate assistance of counsel at initial collateral review proceedings ...


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