United States District Court, D. South Carolina, Rock Hill Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
GRANTING RESPONDENT'S MOTION FOR SUMMARY
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
Kadeem Johnson (Johnson), proceeding pro se, filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254
(habeas petition), challenging the results of his appeal to
the post-conviction relief (PCR) court. Johnson asserted
eleven claims of ineffective assistance of counsel which the
PCR court grouped into four grounds. The matter is before the
Court for review of the Report and Recommendation (Report) of
the United States Magistrate Judge recommending the Court
grant Respondent Warden Michael Stephon's (the Warden)
motion for summary judgment. The Report was made in
accordance with 28 U.S.C. § 636 and Local Civil Rule
73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
636(b)(1). The Court need not conduct a de novo review,
however, “when a party makes general and conclusory
objections that do not direct the court to a specific error
in the [Magistrate Judge's] proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
The Court will address each specific objection to the Report
in turn, but the Court need not-and will not-address any
arguments that fail to point the Court to alleged specific
errors the Magistrate Judge made in the Report. See
Orpiano, 687 F.2d at 47.
Magistrate Judge filed the Report on March 6, 2019. Johnson
filed his objections on May 3, 2019, and the Warden replied
on May 16, 2019. The Court has carefully reviewed
Johnson's four objections but holds them to be without
merit. Therefore, it will enter judgment accordingly.
court considered and rejected Johnson's eleven claims of
ineffective assistance of counsel. Of those eleven claims,
PCR appellate counsel raised only one issue on appeal,
whether plea counsel's advice concerning the likely
sentence the trial court would impose rendered Johnson's
plea involuntary (preserved claim). The Magistrate Judge
concluded Johnson's remaining ten claims not raised on
appeal are procedurally barred from federal habeas review.
Johnson objects to this conclusion and argues the errors made
by his PCR counsel create cause sufficient to excuse his
procedural default for the ten claims the Magistrate Judge
suggests are barred.
petitioner must exhaust all remedies available in state court
before bringing a habeas petition to the district courts. 28
U.S.C. § 2254(b)(1)(A). Failure to exhaust state court
remedies results in a procedural default. Generally, errors
by PCR counsel in state court appeals cannot excuse
procedural defaults. Coleman v. Thompson, 501 U.S.
722, 752 (1991). However, in Martinez v. Ryan, 566
U.S. 1, 15 (2012), the Supreme Court created a “limited
qualification” to the general rule in Coleman,
holding errors by PCR counsel in initial-review collateral
proceedings may establish cause for a procedural default of
ineffective assistance of counsel claims. To establish cause
under Martinez, the petitioner must show the PCR
counsel was deficient in their representation, the deficiency
prejudiced the petitioner, and the underlying ineffective
assistance of counsel claim is “substantial.”
Id. at 14.
claims his PCR counsel was deficient for failing to subpoena
his co-defendant in the underlying trial to testify at the
PCR hearing. Johnson, who contends he otherwise meets
Martinez's requirements to excuse his default,
argues Martinez should be extended to include errors
made by what Johnson calls “Writ of Certorari
(sic) appellate counsel, ” but is really his
PCR appellate counsel. Objection at 1.
Supreme Court expressly precluded expanding Martinez
in the case itself: “[t]he holding in this case does
not concern attorney errors in other kinds of proceedings,
including appeals from initial-review collateral proceedings,
second or successive collateral proceedings, and petitions
for discretionary review in a State's appellate
courts.” Martinez, 566 U.S. at 16. The Court
concludes Johnson's first objection will be overruled
because it was expressly rejected by the Supreme Court in
Martinez does not apply to Johnson's claims, the
Court agrees with the Magistrate Judge Johnson's ten
claims not raised in his PCR appeal are procedurally barred.
Only Johnson's preserved claim, alleging his guilty plea
was rendered involuntary by his plea counsel's advice
regarding the sentence the trial court could impose, remains
preserved for this Court.
objects to the Magistrate Judge's recommendation to grant
the Warden's motion for summary judgment on the preserved
claim. Johnson asserts the PCR court incorrectly applied
federal law to the facts of his case when denying his initial
application for habeas relief. When a state court has
adjudicated a habeas claim on the merits, a petitioner is
only entitled to federal habeas relief if the state court
decision was contrary to clearly established law, an
unreasonable application of clearly established law, or an
unreasonable determination of the facts. 28 U.S.C. §
2254(d). Johnson relies upon the record from the PCR court
and two Supreme Court cases, Padilla v. Kentucky,
559 U.S. 356 (2010), and Hill v. Lockhart, 474 U.S.
52 (1985), for his argument the PCR court incorrectly applied
federal law in his case. The Court disagrees with
first claims the PCR court failed to correctly apply the
Supreme Court's decision in Padilla, which held
ineffective assistance of counsel is not limited to merely
“affirmative misadvice” about plea agreements,
but also includes omissions by counsel as well.
Padilla, 559 U.S. at 370. In Padilla,
defense counsel failed to advise his client he would be
subject to automatic deportation if he plead guilty, and the
Supreme Court held this omission by counsel was
constitutionally deficient and could give rise to an
ineffective assistance of counsel claim. Id. at 356.
According to Johnson, if plea counsel had told him he could
receive a 25-year sentence, “he would [have] insisted
on going to trial.” Objection at 3. Liberally
construing Johnson's objection, it appears to the Court
he is arguing the “omission” giving rise to his
allegedly valid ineffective assistance of counsel claim is
his lawyer's failure to inform him he could receive a
lengthy history of this case is set forth in Johnson's
petition for writ of certiorari to the South Carolina Supreme
Court (petition), which was filed by Johnson's appellate
PCR counsel. Petition, ECF No. 14-3. The PCR court denied
Johnson's claims for relief because Johnson testified
“he understood ‘the fact that his co-defendant
pled and would testify against him changed the dynamics of
his case'.” Id. at 15. Although Johnson
testified his plea counsel “told him that he would not
be sentenced to the same term of fifteen years as his
co-defendant, but he would not get much more than that,
” Johnson also testified he pled guilty because
“he did not believe his counsel was prepared to go
forward with trial.” Id. The PCR court found
Johnson and his plea counsel had a “mutual
understanding” of Johnson's sentencing range.
Id. at 15.
court's factual findings are entitled to great deference
in this Court. Elmore v. Ozmint, 661 F.3d 783, 850
(4th Cir. 2011). In the present case, there was no omission
of the kind described in Padilla giving rise to an
ineffective assistance of counsel claim. The PCR court found
Johnson and his plea counsel came to a “mutual
understanding” of Johnson's sentencing range, and
this mutual understanding proved to be incorrect when the
trial judge gave Johnson a longer sentence. The Court
concludes the PCR court correctly applied federal law because
this is not the type of ...