United States District Court, D. South Carolina, Beaufort Division
TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE.
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).Petitioner filed a
reply on January 4, 2017. (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).
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).
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.
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).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.
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
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]
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.
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
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.
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.
Motion to Dismiss
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.
argument against the finding of the magistrate judge would
more properly be contained in his objections. 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.
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. Petitioner's argument, then, as
construed by the court, is that PCR counsel was ineffective
for failing to raise a Rule 59(e) motion.
“[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
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 ...