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Ashford v. Stephan

United States District Court, D. South Carolina, Rock Hill Division

March 29, 2019

Randolph Ashford, Petitioner,
v.
Michael Stephan, Respondent.

          ORDER

          Joseph F. Anderson, Jr. United States District Judge.

         I. INTRODUCTION

         Petitioner Randolph Ashford (“Petitioner”), a state prisoner proceeding pro se, filed a petition seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 (“Petition”). (ECF No. 1). Petitioner is currently confined at Broad River Correctional Institution. (ECF No. 21 at 2). After reviewing the pleadings, the Magistrate Judge assigned to this action[1] prepared a thorough Report and Recommendation (“Report”) and recommends that Respondent Michael Stephan's (“Respondent”) Motion for Summary Judgment (ECF Nos. 21, 22) be granted and that the Petition be denied. (ECF No. 45). The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards without a recitation. (ECF No. 45).

         Petitioner was advised of his right to file objections to the Report, which was filed by the Magistrate Judge on January 4, 2019. (ECF No. 45). The Magistrate Judge required Petitioner to file objections to the Report by January 18, 2019. (ECF No. 45 at 28). On January 28, 2019, this Court granted Petitioner's Motion for Extension of Time to File Objections to the Report by extending the filing deadline to February 22, 2019. (ECF No 55). Petitioner's Objections were filed on February 27, 2019 and the Court accepted his filing pursuant to the prisoner mailbox rule.[2]

         II. LEGAL STANDARD

         A district court is required to conduct a de novo review only of the specific portions of the Magistrate Judge's Report to which objections are made. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); see also Carniewski v. W.Va. Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Report, the Court is not required to give an explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Thus, the Court must only review those portions of the Report to which Petitioner has made specific written objections. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).

         “An objection is specific if it ‘enables the district judge to focus attention on those issues- factual and legal-that are at the heart of the parties' dispute.'” Dunlap v. TM Trucking of the Carolinas, LLC, No. 0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec. 12, 2017) (citing One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A specific objection to the Magistrate Judge's Report thus requires more than a reassertion of arguments from the Complaint or a mere citation to legal authorities. See Workman v. Perry, No. 6:17-cv-00765-RBH, 2017 WL 4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection must “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).

         “Generally stated, nonspecific objections have the same effect as would a failure to object.” Staley v. Norton, No. 9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007) (citing Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The Court reviews portions “not objected to-including those portions to which only ‘general and conclusory' objections have been made-for clear error.” Id. (emphasis added) (citing Diamond, 416 F.3d at 315; Camby, 718 F.2d at 200; Orpiano, 687 F.2d at 47).

         Where an objection is “nonspecific, unrelated to the dispositive portions of the Magistrate Judge's Report and Recommendation, or merely restate[s] . . . claims, ” the Court need not conduct any further review of that objection. Field v. McMaster, 663 F.Supp.2d 449, 452 (D.S.C. 2009); see also McNeil v. S.C. Dept. of Corrections, No. 5:12-2880-MGL, 2013 WL 1102881, at *1 (D.S.C. Mar. 15, 2013) (finding petitioner's objections to be without merit where the objections were “non-specific, unrelated to the dispositive portions of the Magistrate Judge's Report, and consist[ed] of a reassertion of the arguments” made in the petition); Arbogast v. Spartanburg Cty., No. 07:11-cv-00198-GRA, 2011 WL 5827635, at *2 (D.S.C. Nov. 17, 2011) (finding that plaintiff's objections were not specific where the objections were “general and conclusory in that they merely reassert[ed] that his conviction was wrongful.”).

         III. DISCUSSION

         A. Procedural Bar as to Grounds Five and Six, and Parts of Ground Four.

         i. Ground Five

         In Ground Five, Petitioner argues trial counsel were ineffective for failing to quash the indictments against him. (ECF No. 1 at 14). Respondent argues Ground Five of the Petition is procedurally barred. (ECF No. 21 at 44). The Magistrate Judge recommends granting Respondent's Motion as to Ground Five. (ECF No. 45 at 10-13). The Court agrees.

         At the PCR hearing, PCR counsel asked the PCR court to consider a brief drafted pro se by Petitioner that explained why the indictments in his trial should have been quashed based on the indictments having been issued when there was no term of the Court of General Sessions. (ECF No. 21-3 at 176-77, 189-90). However, no testimony was presented to the PCR court, and the PCR court did not make any findings of fact or conclusions of law on this point. (ECF No. 21-3 at 394-407). Thus, even though Petitioner raised the issue on appeal from the denial of his PCR application in his pro se brief (ECF No. 21-14 at 12), the claim was not preserved for review in the state appellate court. See Plyler v. State, 424 S.E.2d 477, 478 (S.C. 1992) (stating that issues not raised to and ruled on by the PCR court are not preserved for review on appeal); Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007) (stating that issues are not preserved for review where the PCR applicant fails to make a motion to alter or amend the judgment asking the PCR court to make specific findings of fact and conclusions of law on his allegations). Consequently, the claims are barred from federal habeas review. See Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004).

         However, Petitioner argues he can show cause to excuse the procedural bar because PCR counsel failed to ask the PCR court to rule on the issue in a motion to alter or amend the judgment. (ECF No. 37 at 23). Generally, any errors of PCR counsel cannot serve as a basis for cause to excuse a petitioner's procedural bar of his claims. See Coleman v. Thompson, 501 U.S. 722, 752 (1991). However, in Martinez v. Ryan, the United States Supreme Court (the “Supreme Court”) established a “limited qualification” to the rule in Coleman. Martinez v. Ryan, 566 U.S. 1, 15 (2012). The Martinez Court held that ineffective assistance of counsel “at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id. at 9. In describing its holding in Martinez, the Supreme Court has stated:

We . . . read Coleman as containing an exception, allowing a federal habeas court to find “cause, ” thereby excusing a defendant's procedural default, where (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.”

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez, 132 S.Ct. at 1318-19, 1320-21); see also Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (summarizing the Martinez test to require the following: “a reviewing court must determine whether the petitioner's attorney in the first collateral proceeding was ineffective . . ., whether the petitioner's claim of ineffective assistance of trial counsel is substantial, and whether there is prejudice”).

         Further, to excuse the procedural bar to Petitioner's claims, he must “show that [PCR] counsel's representation during the post-conviction proceeding was objectively unreasonable, and that, but for his errors, there is a reasonable probability that Petitioner would have received relief on a claim of ineffective assistance of trial counsel in the state post-conviction matter.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012); see also Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating that “the Strickland test provides sufficient guidance for resolving virtually all ineffective assistance-of-counsel claims”); Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that in order to demonstrate ineffective assistance of counsel, a petitioner must show (1) his counsel was deficient in his representation, i.e., that counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution and (2) he was prejudiced as a result).

         Here, the Court finds Petitioner cannot demonstrate cause pursuant to Martinez because his underlying claim is not substantial-that is, the claim is patently without merit. See Martinez, 566 U.S. at 14 (“To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.”). In South Carolina, indictments are notice documents, intended to inform defendants of the charges against them. See State v. Smalls, 364 S.E.2d 754, 756 (S.C. 2005) (“The primary purposes of an indictment are to put the defendant on notice of what he is called upon to answer, i.e., to appraise him of the elements of the offense and to allow him to decide whether to pled guilty or stand trial.”) (citing Evans v. State, 611 S.E.2d 510 (S.C. 2005)).

         Petitioner alleges that the indictments in his case were defective because they were made while there was no term of General Sessions Court. (ECF Nos. 1 at 14, 21-14 at 12). Even if true, this allegation fails to plausibly show that Petitioner was not provided sufficient notice of his charges before trial. Thus, trial counsel had no basis upon which they could have moved to quash the indictments, and Petitioner's claim that trial counsel were deficient in this regard is plainly without merit.[3]

         In his Objections, Petitioner does not note any specific error in the Report's analysis of Ground Five but instead alleges other deficiencies in his indictments that he previously indicated in his response to the Motion, including that the solicitor intentionally included false information in his indictments, that the trial court altered indictments, and that the face of the indictments does not match the body of the indictments. (ECF No 58 at 10). However, those allegations were not presented in the habeas petition and were therefore not addressable by the Motion. The Court's review in this order focuses on the habeas petition itself and any supporting facts and arguments, not new grounds Petitioner failed to raise in his petition. Based on its review of the filings, the Court finds Petitioner failed to meet his burden of showing cause to excuse the procedural bar as to Ground Five.

         ii. Ground Six

         In Ground Six, Petitioner argues the trial court erred in permitting the jury to view a videotaped prior statement of the victim during deliberations. (ECF No. 1 at 16). Respondent argues Ground Six of the Petition is procedurally barred because Petitioner did not object to the jury's receiving this evidence, nor did Petitioner raise this issue on appeal. (ECF No. 21 at 21). The Magistrate Judge recommends granting Respondent's Motion as to Ground Six. (ECF No. 45 at 14). The Court agrees.

         In his Objections, Petitioner admits Ground Six is procedurally barred due to his trial counsel's failure to object and his appellate counsel's failure to preserve the issue for appeal. (ECF No. 58 at 7). Consequently, this issue was not preserved for review in Petitioner's direct appeal. See State v. Dunbar, 587 S.E.2d 691, 693-94 (S.C. 2003) (“In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial judge.”). However, Petitioner argues the procedural bar should be excused due to the ineffective assistance of counsel in failing to preserve his argument for appeal. (ECF No. 58 at 7). While this appears to be a claim cognizable under Martinez, Petitioner failed to demonstrate cause and prejudice to justify his procedural default. See Martinez, 566 U.S. at 14. Accordingly, Ground Six is procedurally barred from federal habeas review. See Longworth, 377 F.3d at 448.

         iii. Parts ...


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