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Ham v. Williams

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

October 18, 2018

Angelo Ham, Petitioner,
v.
Warden Williams, Respondent.

          ORDER AND OPINION

         Before the court for review is the Report and Recommendation of Magistrate Judge (“Report”) entered on June 28, 2018 (ECF No. 24), addressing Respondent Warden William's (“Respondent”) Motion to Dismiss (ECF No. 20) Petitioner Angelo Ham's (“Petitioner”) Petition for Writ of Habeas Corpus (“Habeas Petition”) (ECF No. 1). The Report recommends that the court grant Respondent's Motion and dismiss Petitioner's Habeas Petition without prejudice. (ECF No. 24 at 1.) For the reasons stated herein, the court REJECTS the Report and DENIES Respondent's Motion to Dismiss.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 2006, Petitioner pled guilty to murder, armed robbery, and criminal conspiracy. (ECF No. 17-3 at 1.) At the time of the crime he was fifteen years old. (ECF No. 17-5 at 79.) The trial court sentenced Petitioner to life imprisonment without the possibility of parole for murder, twenty-five years' imprisonment for armed robbery, and five years' imprisonment for conspiracy. (Id. at 29, 40.) Petitioner appealed, but later moved for an Order dismissing the appeal before the South Carolina Court of Appeals. (ECF No. 17-1 at 1.) The South Carolina Court of Appeals dismissed the appeal in June 2008. (Id.) Subsequently, Petitioner filed four post-conviction relief (“PCR”) applications, most recently in 2014. (ECF Nos. 17-2, 17-7, 17-9.)[1] In his third PCR application, Petitioner, represented by counsel, argued that his sentence of life imprisonment without the possibility of parole was impermissible under the Eighth Amendment and the decisions of the United States Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), [2] and Miller v. Alabama, 567 U.S. 460 (2012).[3] (ECF No. 17-7 at 2-8.) This application was dismissed as untimely and successive. (ECF No. 17-8.) Shortly thereafter, Petitioner and fourteen other prisoners petitioned the South Carolina Supreme Court, in its original jurisdiction, for resentencing under Miller. See Aiken v. Byars, 765 S.E.2d 572, 573 (S.C. 2014). In Aiken, the South Carolina Supreme Court held,

[T]he principles enunciated in Miller v. Alabama apply retroactively to these petitioners, to those similarly situated, and prospectively to all juvenile offenders who may be subject to a sentence of life imprisonment without the possibility of parole. Accordingly, any individual affected by our holding may file a motion for resentencing within one year from the filing of this opinion in the court of general sessions where he or she was originally sentenced.

         Id. at 578. Pursuant to Aiken, Petitioner filed a Motion for Resentencing, which the South Carolina Supreme Court granted in August 2016. Ham v. State, 790 S.E.2d 191 (S.C. 2016). Petitioner's resentencing is currently pending. (ECF No. 1 at 12.)

         On February 3, 2017, Petitioner's fourth PCR application was denied with prejudice. (ECF No. 17-10 at 4.) Petitioner raised claims of ineffective assistance of counsel and other constitutional violations, and challenged the validity of his guilty plea. (ECF No. 17-9 at 3.) The application was “summarily dismissed based upon expiration of the statute of limitations and the presumption against successive applications.” (ECF No. 17-10 at 1.) On December 5, 2017, Petitioner filed a Petition for Writ of Certiorari in the South Carolina Supreme Court. (ECF No. 17-11.) The South Carolina Supreme Court dismissed the appeal on January 18, 2018. (ECF No. 17-12.)

         On February 1, 2018, Petitioner filed the instant Habeas Petition, proceeding pro se and in forma pauperis. (ECF No. 1.) Petitioner alleges due process violations by the family court and his defense attorney, specifically that his defense attorney failed to inform him of his right to appeal the order transferring his case from family court to general sessions court; that his defense attorney failed to object, and the family court failed to exclude, hearsay testimony of an investigator about statements made by Petitioner's co-defendants; that his defense attorney incorrectly advised Petitioner to plead guilty “to equal punishment as [the] triggerman” for the murder charge; and that the trial court relied on improper information to “enhance [Petitioner's] punishment.” (Id. at 5-6, 8.) Petitioner also claims the indictment in his case was invalid. (Id. at 7.)

         On May 31, 2018, Respondent filed a Return, Memorandum of Law and Motion to Dismiss Without Prejudice Pending Petitioner's Resentencing in State Court.[4] (ECF No. 17.) Respondent asserts it is unclear whether Petitioner has met the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A), [5] “Though it would appear that Petitioner has exhausted - either properly or technically - his normally available state court remedies of direct appeal and post-conviction relief, given that the present litigation may affect the criminal sentence, definitive comment on exhaustion would not be prudent at this time.” (Id. at 8, 9.) Respondent further asserts Petitioner's sentence is not final because it is being reconsidered, and “[T]h[is] action should be dismissed without prejudice for failure to exhaust and/or to refrain from jurisdiction and review in light of the ongoing state litigation.” (Id. at 9, 10.)

         Also on May 31, 2018, the Magistrate Judge issued a Roseboro Order, advising Petitioner of the motion to dismiss procedure and the consequences if he failed to respond to Respondent's Motion.[6] (ECF No. 18.)

         On June 14, 2018, Petitioner filed a Response to Respondent's Motion to Dismiss. (ECF No. 21.) Petitioner asserts that only one of the grounds for relief he raised deals directly with his murder sentence, and that his Habeas Petition challenges his armed robbery conviction as well. (Id. at 2.) Petitioner also argues that if he is granted relief on his claim regarding the transfer of his case from family court to general sessions court, there will no longer be a need for a resentencing hearing in state court because “this court will be required to issue an order of release or reverse [Petitioner]'s sentence altogether.” (Id.) Lastly, Petitioner contends he has exhausted his state law remedies because he raised the claims in his Habeas Petition before the PCR court and on appeal to both the South Carolina Court of Appeals and the South Carolina Supreme Court. (Id. at 6.)

         On June 19, 2018, Respondent filed a Reply to Petitioner's Response in Opposition to Motion for Summary Judgment. (ECF No. 23.) Citing Slocumb v. McKie, Civil Action No. 9:10-1605-HMH, 2011 WL 2174974 (D.S.C. May 12, 2011), Respondent argues “it would be inappropriate” to consider Petitioner's habeas claims pertaining to his armed robbery conviction and the validity of his waiver from family to general sessions court. (Id. at 2.) In Slocumb, the district court declined to address a petitioner's other asserted grounds for habeas relief when he was going to be resentenced in state court. Slocumb, 2011 WL 2174974, at * 1. Respondent asserts that if the court rules on Petitioner's remaining grounds, it will result in “piecemeal litigation . . . subject[ing] th[e] court to future federal petitions from Petitioner.” (Id.) Respondent further asserts that “if the Petitioner should persist in his desire to go forward, he should know Respondent may raise a successive litigation defense should he attempt to return to federal court for litigation of additional claims without authorization from the Fourth Circuit.” (Id. at 3.)

         On June 28, 2018, the Magistrate Judge entered his Report. (ECF No. 24.) The Magistrate Judge found Petitioner has not met the requirement of total exhaustion because the resentencing on his murder conviction under Aiken is still pending in state court. (Id. at 3.) Also citing Slocumb, the Magistrate Judge agreed with Respondent that proceeding on Petitioner's claims not directly related to his pending resentencing “may result in piecemeal state and federal consideration and litigation, and the petitioner may be denied additional federal habeas claims arising from future state proceedings because a subsequent federal habeas petition could be denied as successive.” (Id.) As a result, the Magistrate Judge recommended dismissing Petitioner's Habeas Petition without prejudice. (Id. at 4.)

         On July 13, 2018, Petitioner filed Objections to the Report of Magistrate Judge (“Objection”). (ECF No. 26.) First, Petitioner argues, “It would be contrary to the law to force [him] to wait until after he has been re-sentenced just to receive a fair hearing on the juvenile waiver hearing/order issue.” (Id. at 3.) Petitioner contends that under U.S. v. Doe, 49 F.3d 859, 865 (2d Cir. 1995), “If a juvenile wishes to appeal a juvenile hearing order and does so timely, it must be done before the [c]ourt of [g]eneral [s]essions impose[s] an adult sentence.” (Id. at 4.) Petitioner, citing U.S. v. Smith, 851 F.2d 706, 708 (4th Cir. 1988), further argues the PCR court made an error of law in finding the transfer order was not immediately appealable. (Id. at 2.) Petitioner contends that such orders are immediately appealable because “the legal and practical benefits of being tried as a juvenile would be destroyed if the defendant were forced to wait until after the trial and final judgment in order to appeal the juvenile hearing order.” (Id.) Petitioner also claims that “every circuit that has address[ed] th[is] issue has held an order transferring a juvenile to be tried as an adult is immediately appealable under the collateral order doctrine.” (Id. at 2 (citing U.S. v. Smith, 851 F.2d at 708).) Second, Petitioner objects to the Magistrate Judge's reliance on Slocumb, arguing that Petitioner's case is distinguishable from Slocumb because unlike the petitioner in Slocumb, Petitioner is not challenging the constitutionality of his sentence under Graham and Miller. (Id. at 3-4.)

         II. ...


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