Opinion
C. A. : 1:21-1377-MGL-SVH
09-11-2021
Christopher L. Hampton, #314697, Petitioner, v. Kenneth Nelson, Warden, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges Columbia, South Carolina United States Magistrate Judge
Christopher L. Hampton (“Petitioner”) is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment filed on July 6, 2021. [ECF Nos. 19, 20]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 21]. Petitioner filed a response to the motion on August 12, 2021. [ECF No. 26]. Also before the court are Petitioner's motions for summary judgment, as amended [ECF Nos. 17, 31], motion to appoint 1 counsel, motion for discovery, and motion to amend his petition [ECF Nos. 27, 28, 29].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Respondent's motion for summary judgment and deny Petitioner's motion for summary judgment, as amended, rendering Petitioner's remaining motions moot.
I. Factual and Procedural Background
On August 25, 2005, Petitioner was indicted by the Spartanburg County grand jury for murder (05-GS-42-3629) and for criminal sexual conduct with a minor second degree (05-GS-42-3630). [ECF 19-1 at 174-77]. On April 3, 2006, Petitioner appeared before the Honorable John C. Few, then-Circuit Court Judge, for a guilty plea hearing. Id. at 3. Petitioner was represented by Michael Bartosh, Esq. (“Bartosh”), and solicitor Trey Gowdy represented the State. Id.
The criminal sexual conduct with a minor second degree offense was later nolle prossed. [See ECF No. 19 at 1 n.1].
The facts presented by the State at the plea hearing were as follows:
That on August [12, 2005], Christopher Hampton took police to a remote wooded area, on the west side of Spartanburg County, and showed them where he had buried the body of Tamika Huston.
This ended a fifteen (15) month search for her. Tamika was last seen on May [27, 2004]. Her family reported her missing in early June [2004].2
The police began their investigation, and in December [2004], interviewed Christopher Hampton. He denied any knowledge about where Tamika was, the circumstances surrounding her disappearance, or anything about her well being.
In January [2005], the police found blood in an apartment that Mr. Hampton had rented in [2004] . . . . He was confronted with this fact; again, he denied any knowledge about what had happened to Tamika Huston and, through a series of interviews with police, sought to implicate others, including some of his friends and some of her family members.
In March [2005], Mr. Hampton wrote in a letter that the last time he saw Tamika Hudson, she was alive and well. And, in fact, that she was doing just fine when she walked away from him.
On August [12, 2005], after being served with a murder warrant, Hampton finally admitted to what he had done.
On August 27th, he states, “Tamika was at his apartment. And after she had asked to borrow some money, Hampton spun around and hit her in the head with a hot iron.”
According to him, she fell to the ground. Hampton rolled her up in a comforter and put her in the closet, while he borrowed some bleach from a neighbor, cleaned the floor, moved her car, threw away the sheets and pillows, sipped a beer with some friends, and had sex with another woman in the bedroom with Tamika Huston's either dead or dying body a few feet away in the closet . . . .
He drove to that remote-remote area where he later took the police and he buried her after he removed her clothes . . . . [Later] he went back to that site, dug the body up, and removed the head, which he, then, put into a plastic grocery bag and threw into a trash dumpster.
In the process of the police's investigation into a, whether or not Tamika was-had-had succumbed to foul play, Mr. Hampton was interviewed nearly ten (10) times.3
He denied involvement every one of those times up to the time he was served with a murder warrant in August, at which time, he gave a video taped confession and written statement . . . .Id. at 15-17.
Petitioner agreed with the version of the facts described. Id. at 18. At the conclusion of the plea hearing, the court accepted Petitioner's guilty plea and sentenced him to life for murder. Id. at 23, 46. Two days later, Petitioner's counsel passed away, and no notice of appeal was filed. Id. at 49. Petitioner filed a motion to file a notice of appeal out of time on May 10, 2006. Id. The motion was denied on May 17, 2006, and the remittitur was filed on June 1, 2006. Id.
On September 15, 2006, Petitioner filed an application for postconviction relief (“PCR”). Id. at 48. On September 17, 2007, the parties appeared before the Honorable Roger L. Couch, Circuit Court Judges, for a PCR hearing. W. Jeffery McGurk, Esq. (“McGurk”), represented Petitioner, and assistant attorney general S. Prentiss Counts appeared for the State. Id. Petitioner alleged ineffective assistance of trial counsel for failing (a) to challenge the voluntariness of his statement to police; (b) to move for a change of venue; (c) to explain to Petitioner that if he proceeded to trial, there might be the option of being found guilty of a lesser-included offense; (d) to present mitigating circumstances to the sentencing judge; (e) to review discovery 4 materials with Petitioner including the videotape of his confession, written statement, detective Jay Steadman's (“Steadman”) report, or the mental health evaluation; (f) to adequately meet with Petitioner prior to the guilty plea; (g) to pursue a theory of self-defense; and (h) to object when Solicitor Gowdy read a letter from victim's family asking for the maximum sentence. Id. at 49-51, 83.
Petitioner's first PCR application does not appear in the record. The allegations listed above are taken from the PCR court's summary of Petitioner's first PCR application.
Prior to the beginning of the hearing, Petitioner requested a continuance to review some discovery materials received on the day of the hearing. The court denied the motion, “but allowed the Applicant time to review” a report produced by Steadman. Id. at 48. At the hearing, Petitioner also alleged that he was denied effective assistance of trial counsel when counsel failed to inform him of his right to appeal his guilty plea. Id. at 55. The State consented to allow Petitioner to pursue a direct appeal pursuant to White v. State, 208 S.E.2d 35 (1974) (allowing for belated review of a direct appeal that is properly presented with a PCR appeal). Id.
On November 2, 2007, Judge Couch issued his decision, dismissing all of Petitioner's allegations with prejudice, except his belated appeal. Id. at 48-61. The court ordered Petitioner's counsel to file a notice of appeal within thirty 5 days of the service of the order. Id. at 60. No appeal was filed, and, according to Respondent, the remittitur did not issue until July 19, 2013. [See ECF No. 19 at 2 n.2].
Petitioner has submitted evidence that McGurk was disciplined by the State of South Carolina, Office of Disciplinary Counsel, for his failure to file this appeal. [See ECF No. 1-2 at 18-22].
On April 3, 2013, Petitioner filed a pro se notice of appeal, along with a petition for belated review with the South Carolina Supreme Court. [ECF No. 1-2 at 20]. This appeal was dismissed for Petitioner's failure to establish the timeliness of the service of the notice of appeal. Id.
On March 24 and April 15, 2014, Petitioner filed a subsequent application and amended PCR application in which he also alleged that his PCR counsel was ineffective because he failed (a) to appeal the denial of Petitioner's prior PCR application as instructed; (b) to appeal the denial of Petitioner's prior PCR to secure the belated review of direct appeal issues as granted by the PCR judge; (c) to push the issue of a continuance” to have time to re-subpoena Petitioner's interrogator who was not present at the hearing; (d) to put into evidence the two pre-interrogation waiver forms to support claim of involuntary confession; (e) to raise the issue of trial counsel's failure to investigate the voice and video evidence used by police in the hours leading up to Petitioner's confession; (f) to investigate the voice and video evidence to 6 support the claim of an involuntary confession; (g) to effectively cross-examine Steadman on the events leading up to the involuntary confession, which would have impeached Steadman's testimony and credibility; (h) to subpoena trial counsel to testify at the PCR hearing about his pressuring Petitioner to plead guilty; (i) to explain to the PCR judge that the plea could not be voluntary when Petitioner did not know any of the State's evidence; (j) to address trial counsel's failure to seek disqualification of the plea judge when the judge wiped away tears during the victim impact testimony; (k) to meet with Petitioner to discuss direct appeal issues; (1) to respond to letters over the years from Petitioner and the Supreme Court's letter concerning Petitioner's belated pro se notice of appeal; and (m) to raise and preserve the Brady issues that indicate the police and/or prosecution have withheld the confession and indictment-impeaching evidence. [ECF No. 19-1 at 62-81, 95-96].
On November 9, 2015, a subsequent PCR hearing was held before the Honorable Larry B. Hyman, Circuit Court Judge, where only Petitioner testified. Id. at 88. J. Brandt Rucker, Esq., represented Petitioner, and Assistant Attorney General Alicia A. Olive represented the State. Id. The State took no position concerning whether Petitioner was denied his right to appeal 7 and is entitled to a belated notice of appeal. Id. at 91. In an order issued on October 4, 2017, the court listed the grounds for relief as found in both of Petitioner's first and second, as amended, PCR applications. Id. at 94-96. The court did not address the merits of the grounds for relief asserted, but ordered that Petitioner was entitled to a belated appeal from his guilty plea and a belated appeal from the order of dismissal of his first PCR application. Id. at 100; see also id. at 91 (“Relief is granted. I am going to grant, the finding of ineffective assistance of PCR counsel by failing to file a direct appeal which was granted in his PCR and failing to file his appeal of both portions of the PCR denying relief').
The undersigned notes that every other page of this hearing transcript is missing from the record. [See ECF No. 19-1 at 88-92].
On November 8, 2017, Petitioner filed a notice of appeal to the South Carolina Supreme Court. [ECF No. 19-3]. On August 2, 2018, the South Carolina Supreme Court issued the following order:
This matter is before the Court by way of a notice of appeal from an order of the circuit court finding petitioner is entitled to a belated review of the order issued in petitioner's first postconviction relief (PCR) action pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991). However, counsel for petitioner states the record of petitioner's first PCR hearing is not available. Accordingly, counsel petitioner asks this Court to hold this appeal in abeyance and remand the case to the circuit court for8
reconstruction of the record of the hearing. The State has not filed a return to the motion. We hereby hold this appeal in abeyance and remand the matter to the Honorable Roger L. Couch to reconstruct the record of the evidentiary hearing on petitioner's first PCR application . . . .[ECF No. 19-2].
Austin created a limited exception to the rule barring ineffective assistance of PCR counsel claims where prior PCR counsel failed to appeal the denial of the application. Under those circumstances, a PCR applicant may petition the South Carolina Supreme Court for discretionary review of the dismissal of his application.
On November 26, 2018, Judge Couch convened a hearing to reconstruct the record. [ECF No. 19-1 at 103]. Wanda Carter (“Carter”), appellate defense counsel, represented Petitioner, and Jordan Cox, assistant attorney general, represented the State. Id. Petitioner, his original PCR counsel McGuirk, and Steadman testified at this hearing. Id. at 104.
On May 31, 2019, pursuant to Anders v. California, 386 U.S. 738 (1967), Carter filed a petition for writ of certiorari, arguing Petitioner was entitled to a belated direct appeal from his criminal conviction and belated PCR appeal. [ECF Nos. 19-4, 19-5]. On June 3, 2019, the South Carolina Supreme Court issued a letter to Petitioner explaining the appeal process and informing him that he had 45 days to file a response. [ECF No. 19-5]. On November 27, 2019, the South Carolina Supreme Court transferred the case to the South Carolina 9 Court of Appeals pursuant to SCACR 243(1). [ECF No. 19-6]. On March 24, 2021, the Court of Appeals issued an unpublished opinion, dismissing the appeal, stating as follows:
Anders requires counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. 386 U.S. at 744.
Petitioner now seeks a writ of certiorari from Judge Larry B. Hyman's October 16, 2017 order, which granted Petitioner a belated review of Judge Couch's order pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991). Based on the vote of the panel, the court grants the petition for a writ of certiorari from Judge Hyman's order, dispenses with further briefing, and proceeds with an Austin review of Judge Couch's order.
After Austin review, the petition for a writ of certiorari as to the ineffective assistance of counsel claim is denied. However, because there is sufficient evidence to support Judge Couch's finding that Petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant certiorari on the belated direct appeal question and proceed with a review of the direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).
After consideration of Petitioner's pro se briefs and review pursuant to Anders v. California, 386 U.S. 738 (1967), Petitioner's direct appeal is dismissed. Counsel's motion to be relieved is granted.[ECF No. 19-7]. The remittitur issued on April 13, 2021, and was filed with the Spartanburg County Clerk of Court on April 16, 2021. [ECF No. 19-8].
II. Discussion
A. Federal Habeas Issues
Petitioner asserts he is entitled to a writ of habeas corpus on the following grounds: 10
Ground One: Denied state and federal right to effective assistance of counsel where plea counsel failed to file a motion to suppress confession and for failing to investigate the voluntariness of the statement.
Ground Two: Was denied state and federal right to effective assistance of counsel where counsel failed to object to the state placing the illegally obtained statement and waiver into evidence and using it against him at his guilty plea hearing.
Ground Three: Was denied state and federal right to effective assistance of counsel where counsel failed to investigate the whereabouts of Lt. Lambs “missing” exculpatory voice recorder evidence and for failing to develop a Brady violation by the state because it was withheld.
Ground Four: Was denied state and federal rights when counsel failed to provide or review the discovery with him denying him an opportunity to know the evidence gathered by the state that would have allowed him to assist and help prepare the Petitioner.
Ground Five: Guilty plea was the product of and motivated by an illegally obtained confession and ineffective assistance of counsel.
Ground Six: Was denied state and federal right to due process of law where the trial court failed to conduct a competency hearing as was required after the mental health evaluation had been ordered and taken place.
Ground Seven: Was denied state and federal right to the effective assistance of counsel, and denied his right to due process where counsel failed to obtain a “full” and meaningful mental health evaluation as ordered by the court.
Ground Eight: PCR counsel was ineffective for failing to amend PCR application to correctly include violation of Brady11
claim that was in PCR application but not addressed in State's return and motion to dismiss and for failing to develop a state misconduct claim.
Ground Nine: PCR counsel was ineffective for not aggressively pursuing a continuance upon learning that Lt. Lamb whom he subpoenaed was not present at the hearing.
Ground Ten: PCR counsel was ineffective for not arguing that trial counsel was ineffective in what is set forth in grounds two, three and seven and for failing to argue that trial counsel's deficient performance prejudiced him under Cronic.
Ground Eleven: PCR counsel was ineffective for failing to file a Rule 59(e) motion asking the PCR court to amend its order to make a specific findings of fact and conclusions of law on his main issue that trial counsel was ineffective for not filing a motion to suppress his confession statement.
Ground Twelve: PCR court denied him right to due process of law and a fair hearing when it denied his request for a continuance so that he could view the discovery file and so his PCR counsel could re-subpoena Lt. Lamb who was absent despite having been subpoenaed.
Ground Thirteen: Was denied state and federal right to effective assistance of appellate counsel where counsel failed to argue that PCR counsel was ineffective for not filing a Rule 59(e) motion asking the court to amend its order to make specific findings of fact and conclusions of law on the issue that plea counsel was ineffective for failing to file a motion to suppress his confession, and appellate counsel was ineffective for not attempting to file a Rule 59(e) motion after the reconstruction hearing, and for failing to impeach investigator Steadman as he repeatedly lied on the stand about the “refused to sign” Miranda waiver as being for a different case.12 [See ECF Nos. 1, 1-1, 1-2].
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Id. at 255.
The moving party has the burden of proving summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by Fed.R.Civ.P. 56(c), set forth specific facts showing there is a genuine dispute for trial.
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of 13 his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Nolandv. French, 134 F.3d 208, 213 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[, ]” and requires that a petitioner present his claim to the state's highest 14 court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available statecourt remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement15
unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 1727-10, et seq. S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Furthermore, strict time 16 deadlines govern direct appeal and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-2745.
In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007 decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
The United States Supreme Court has held that “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”-which includes “petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” OSulivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court “both the operative facts and the controlling legal principles” associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (internal citations omitted). That is to say, the ground must “be presented face-up and squarely.” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted). 850 (S.C. 2002); 17 see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court “outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan.” 559 S.E.2d at 854. As such, it is an “extraordinary” remedy under O'Sullivan, “technically available to the litigant but not required to be exhausted.” Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals, without more, is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals.
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state 18 proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state's courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman v. Thompson, 501 U.S. 722, 750 (1991), or by “prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir.), cert. denied, 555 U.S. 868 (2008) . 19 A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of “cause, ” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
4. Ineffective Assistance of Counsel Claims
To prevail on his ineffective assistance of counsel claims, Petitioner must show (1) that his trial counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a “strong presumption” that trial counsel's representation fell within the “wide range of reasonable professional assistance, ” and the errors must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. 20 That the outcome would “reasonably likely” have been different but for counsel's error is not dispositive of the prejudice inquiry. Rather, the court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Harrington, 562 U.S. at 104; Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned that “‘[s]urmounting Stricklands high bar is never an easy task[, ]' . . . [establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington, 562 U.S. at 88 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland “in tandem, ” making the standard “doubly” more difficult. Harrington, 562 U.S. at 105. In such circumstances, the “question is not whether counsel's actions were reasonable, ” but whether “there is any reasonable argument that counsel satisfied Stricklands deferential standards.” Id. The unreasonableness of the state court determination must be “beyond any possibility of fairminded disagreement.” Id. at 103. “If this standard is difficult to meet, that is because it was meant to be.” Id. at 102. Section 2254(d) codifies the view that habeas corpus is a “‘guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal.” Id. at 102-103 (citing Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)). 21
D. Analysis
1. Statute of Limitations
Under the AEDPA, a § 2254 petition must be filed within one year of the date on which the state court judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled during the pendency of a properly-filed state post-conviction action. § 2244(d)(2).
Respondent argues Petitioner's habeas petition should be dismissed because Petitioner's claims are barred by the statute of limitations. Petitioner disagrees, arguing that because he was granted the right to file a belated appeal, his petition is timely. See Jimenez v. Quarterman, 555 U.S. 113 (2009) (holding that when a petitioner is granted the right to file a belated appeal, the limitations period for the filing of a § 2254 petition resets).
Because Petitioner did not file a notice of direct appeal due to the death of his counsel, his case became final on April 13, 2006, ten days after he pleaded guilty. See SCACR 203(b)(2) (notice of appeal must be filed within ten days of imposition of sentence). Then, 155 days elapsed. Petitioner then filed his first PCR application on September 15, 2006, that was resolved when the remittitur was filed on July 19, 2013, tolling the statute of limitations during this time. See Bannister v. Warden Lieber Corr. Inst., C/A No. 6:20-3998-MGL-KFM, 2021 WL 3493862, at *3 (D.S.C. July 6, 2021) (“Using the date most favorable 22 to the petitioner, the tolled period for the PCR action concluded . . . when the Berkeley County Clerk of Court filed the remittitur in the PCR appeal”) (collecting cases), report and recommendation adopted, C/A No. 6:20-03998-MGL, 2021 WL 3493437 (D.S.C. Aug. 9, 2021). Then, 248 days elapsed. Petitioner thereafter filed his second PCR application on March 24, 2014, resulting in the South Carolina Supreme Court granting Petitioner a belated appeal pursuant to Austin. Therefore, at the least, over 403 days elapsed before Petitioner filed his second PCR application.
Respondent argues that “some eight hundred and forty-three days” elapsed prior to Petitioner filing his second PCR application. [ECF No. 19 at 12-13]. However, it appears that Respondent arrives at this number by incorrectly stating that Petitioner filed his second PCR application on November 9, 2015, instead of March 24, 2014. See id.
Even though Petitioner is correct that when he was granted the right to file a belated appeal, the limitations period for filing his § 2254 petition reset, pursuant to Jimenez, that does not mean that the time between his PCR actions was tolled. See Jackson v. Warden Perry Corr. Inst., C/A No. 0:20-841-TLW-PJG, 2020 WL 9216281, at *3 n.4 (D.S.C. Dec. 22, 2020) (“Even though the state appellate court granted Jackson a belated appeal in his 2016 PCR action pursuant to Austin from his 2013 PCR application, this does not entitle Jackson to toll the time between the PCR actions.”), report and recommendation adopted, C/A No. 0:20-841-TLW, 2021 WL 912417 (D.S.C. Mar. 9, 2021); McHoney v. South Carolina, 518 F.Supp.2d 700, 705 (D.S.C. 2007) 23 (finding that no collateral action was “pending, ” as defined by the AEDPA, during the time between the state court's initial denial of the PCR application and the state court's allowance of a belated appeal of that PCR application and thus the AEDPA's limitations period was not tolled during this time); Hepburn v. Eagleton, C/A No. 6:11-2016-RMG, 2012 WL 4051126, at *3 (D.S.C. Sept. 13, 2012) (same); see also Evans v. Chavis, 546 U.S. 189, 192 (2006) (“[T]he time that an application for state postconviction review is ‘pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.”); Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003) (“The statutory tolling provision does not encompass a period of time in which a state prisoner does not have a ‘properly filed' post-conviction application actually pending in state court.”). Accordingly, the petition is untimely.
Courts may equitably toll the statute of limitations when a petitioner demonstrates “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted). In the Fourth Circuit, equitable tolling is only appropriate in those “rare instances where-due to circumstances external to the party's own 24 conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (internal quotation marks omitted)).
In response to Respondent's argument he has not shown “due diligence” in filing his second PCR application, Petitioner argues that following the denial of his first PCR application in November 2007, he believed an appeal was pending, and he tried, and failed, to contact his PCR counsel and the courts multiple times to inquire about his appeal. [ECF No. 26 at 4-6]. Petitioner further argues that once he was informed that no appeal had been filed, in February 2011, he “began filing pro se notices of appeals, ” and then filed this second PCR application on March 24, 2014.
Here, Petitioner has not demonstrated that he pursued his rights diligently and that some extraordinary circumstances stood in his way to prevent him from timely filing his federal habeas petition. Accordingly, it is recommended that the § 2254 petition be dismissed with prejudice because the petition is untimely under the one-year limitations provision of the AEDPA, 28 U.S.C. § 2244(d). Notwithstanding, out of an abundance of caution and due to the irregularity of this case's procedural history, the undersigned will address the parties' additional arguments as found in their motions. 25
2. Merits Analysis
a. Grounds One, Two, and Five
Petitioner's primary arguments for relief are found in Grounds One, Two, and Five, and all concern how his confession was handled by trial counsel and the court. Petitioner argues his trial counsel was ineffective because (1) he failed to file a motion to suppress his confession and failed to investigate the voluntariness of the statement; (2) he failed to object to the inclusion of his statement and waiver in evidence as used against him at his guilty plea hearing; and (5) his guilty plea was the product of an illegally-obtained confession. As to these grounds, Petitioner argues his trial counsel should have filed a motion to suppress prior to his plea date because his counsel should have known the confession had been illegally-obtained for multiple reasons, including that he informed law enforcement that he did not want to speak to them, wanted an attorney, and wanted to be transferred to jail, and because he refused to sign a Miranda waiver. [ECF No. 26 at 6-17; see also ECF No. 19-1 at 112-115 (Petitioner testifying at the reconstruction hearing before the PCR court as to why his confession was involuntary)].
Multiple parts of the record bear on these asserted grounds. First, the following are excerpts from the extensive colloquy conducted by the trial judge at Petitioner's guilty plea hearing:
The Court: Are you completely satisfied with your attorney?26
The Defendant: Yes, sir.
The Court: Has he done everything in this case that you feel he could have done or should have done?
The Defendant: Yes, sir.
The Court: Has he done anything in this case that you feel he should not have done? . . . . do you have any complaint that you want to make to me, about anything in this case, regarding your attorney, regarding the solicitor's office, regarding law enforcement, anybody?
The Defendant: No, sir . . . .
The Court: Mr. Hampton, you heard the Solicitor describe the facts of what happened, the facts that allegedly constitute murder. Is there anything that he said, about what you did, that you disagree with?
(Brief Pause)
The Defendant: No, that's it . . . .
The Court: I have just read this statement [Petitioner's confession] that has been marked as State's Exhibit 1 . . . . Now, have you had a chance to review that statement-did you have a chance to review that statement right after [he] wrote it?
The Defendant: Yes, sir.
The Court: Were you telling [him] what to write down when [he] was writing it out? . . . .
The Defendant: I was telling him what to write . . . .
The Court: Is it accurate?
The Defendant: Yes, sir.27
The Court: Is there anything in there that's not correct?
The Defendant: No, sir . . . .
The Court: Now, Mr. Hampton, you understand that, by pleading guilty, you waive or you give up the right to challenge anything regarding that statement that-that you just reviewed that has been marked here as State's Exhibit 1, and also the video confession that the Solicitor referred to. For, for perhaps constitutional reasons, or other reasons related to evidence, there is the-the possibility that you could challenge the right of the State to enter these statements into evidence. You understand that?
The Defendant: Yes, sir.
The Court: You've talked about that with Mr. Bartosh?
The Defendant: Yes, sir.
The Court: And you understand that, by pleading guilty, you waive the right to challenge that statement?
The Defendant: Yes, sir.
The Court: And it would come in-it's now in evidence and I can consider it as part of the basis of this plea. Do you understand that?
The Defendant: Yes, sir . . . .[ECF No. 19-1 at 10-11, 18-21].
Next, at Petitioner's first PCR hearing, Steadman testified concerning Petitioner's confession, as summarized by the PCR court, as follows: 28
Because there is no record of this hearing itself, the court includes the PCR court's summary of Steadman's testimony.
Detective Jay Stedman testified regarding the details surrounding the Applicant's confession. He and Detective Lamb picked the Applicant up from Edgefield Federal Penitentiary on August 15, 2005 in an unmarked SUV so they would have more room. Less than a mile from the penitentiary, they pulled over and served the Criminal Sexual Conduct warrant on the Applicant. At that time, the Applicant refused to sign the pre-interrogation waiver. Detective Stedman recalls casual conversation for most of the ride back. The Applicant was never threatened or coerced. He never asked for an attorney. No one ever threatened him with beatings. The Detectives did discuss certain facts of the case among themselves on the drive and they probably mentioned the press conference to the Applicant.
The Detectives stopped in Clinton and arranged with the County Jail to allow the Applicant to use their restroom. When they arrived in Spartanburg, they took the Applicant to the Narcotics building because they assumed the press would already be at the station. They put him in an interrogation room and re-read his Miranda rights. They gave the Applicant a cheeseburger and cigarettes. Hie Detectives showed the Applicant pictures of evidence and discussed the different lies he had told law enforcement previously. They told the Applicant that the victim's blood had been found in his apartment. The Applicant got up and stated, “let's go.” He took them to the body. Later he gave a full, video-taped confession to law enforcement after signing a preinterrogation form.
The Detective testified that the Applicant was never threatened or coerced. He never asked for an attorney. He was never denied food or water or access to a restroom. The Applicant was read his Miranda rights multiple times. The Applicant voluntarily showed the Detectives where the body was buried. The Applicant voluntarily gave a statement to law enforcement.Id. at 51-52.
In the PCR reconstruction hearing, Steadman testified that although Petitioner originally stated he would not sign a pre-interrogation waiver form 29 about the sexual assault charge, he thereafter volunteered information about the murder case without being threatened or coerced. Id. at 148-152. Steadman further testified that prior to Petitioner's confession, he believed Petitioner was read his Miranda rights, that he signed a pre-interrogation waiver form, and that he never requested an attorney. Id. at 151-52.
Petitioner argues that the first pre-interrogation waiver form referenced was not about the sexual assault charge, but instead was about the murder charge. [See, e.g., ECF No. 26 at 10]. In support, Petitioner has submitted evidence that both forms-the first that Petitioner refused to sign at 9:50 a.m. and the second that Petitioner signed at 2:18 p.m.-concerning the murder charge, listed the same case numbers. [See ECF No. 1-2 at 2-3, ECF No. 26-3 at 4-5].
Under the heading “other allegations of ineffective assistance of counsel, ” the PCR court found as follows:
This Court finds the Applicant's testimony to not be credible on all issues. This Court finds Detective Stedman's testimony to be credible.
This Court finds that no credible evidence was presented to prove that the Applicant's statement was involuntarily given. This Court finds that the Applicant's statement was freely and voluntarily given. Nevertheless, this Court finds that the Court informed the Applicant that by pleading guilty, he would be giving up his right to challenge the voluntariness of the statement. He informed the plea judge that he had discussed this with counsel and wished to waive that right. This Court notes that the Applicant told the plea judge that he had no complaints regarding law enforcement. The Applicant failed to present a valid reason why he should be allowed to depart from the truth of his statements during his guilty plea. This Court finds the Applicant freely and voluntarily waived his right to challenge his statement and denies and dismisses this allegation . . . .30
Furthermore, this Court finds that the Applicant's plea was freely and voluntarily given. He testified that his answers were his own, were truthful, and that no one had told him how to answer the questions. The Applicant failed to present a valid reason why he should be allowed to depart from the truth of his statements during his guilty plea. The court finds that the Applicant has failed to prove prejudice from any alleged ineffective assistance of counsel received. The Applicant failed to show, with reasonable probability, that but for counsel's alleged ineffectiveness, he would not have pled guilty. This Court finds that the Applicant failed to carry his burden to show that trial counsel's representation fell below the standard of professional reasonableness for a criminal defense attorney in this regard. Strickland v. Washington; Cherry v. State. The Court finds that the Applicant cannot satisfy either requirement of the Strickland test.Id. at 56, 59 (citations to the trial transcript omitted).
Petitioner repeatedly argues the PCR court “failed to address” the issues as to whether trial counsel was ineffective for failing to file a motion to suppress his confession or for failing to investigate the voluntariness of the confession. [See, e.g., ECF No. 1 at 17-18]. However, as indicated above, the PCR court directly addressed Petitioner's claims for ineffective assistance of trial counsel concerning whether his confession was voluntary.
Having reviewed the record and considered the totality of the circumstances surrounding the taking of Petitioner's confession, the undersigned finds reasonable the PCR court's determination that trial counsel was not ineffective and that Petitioner's guilty plea was voluntary.
There is no independent evidence, beyond Petitioner's assertions, that he requested an attorney during his interrogation. Although Petitioner has submitted evidence that the waiver forms at issue bore the same case number, the PCR court found credible Steadman's testimony that the first waiver form 31 that Petitioner refused to sign did not concern the murder charge. Petitioner presents nothing that would require this court to disregard the PCR court's credibility determination. Likewise, the PCR found credible that Petitioner, of his own volition, admitted to the murder charge hours after refusing to speak about the sexual assault charge. See Michigan v Mosley, 423 U.S. 96, 104 (1975) (explaining that right to remain silent “fully respected” where interrogation ceased upon suspect's statement that “he did not want to discuss” robbery offenses, no further questioning occurred for more than two hours, and interrogation resumed on different offense after suspect had been advised anew of his rights); United States v. Adams, 462 Fed.Appx. 369, 377-78 (4th Cir. 2012) (“failure to sign a waiver form does not invalidate a subsequent waiver of Miranda rights . . . . And the evidence shows that although Adams was initially uncooperative, he subsequently reinitiated the interview on his own accord and admitted to possession of the drugs and firearm”); United States v. Frankson, 83 F.3d 79, 83 (4th Cir. 1996) (cataloging cases in which several hours did not invalidate a Miranda waiver, holding “[t]he mere passage of time, however, does not compromise a Miranda warning”); United States v. Umana, 750 F.3d 320, 344 (4th Cir. 2014) (“A suspect impliedly waives his Miranda rights when he acknowledges that he understands the Miranda warning and then subsequently is willing to answer questions.”). 32
The court rejects Petitioner's argument that if his counsel had moved to suppress his confession, he would not have pled guilty, the motion would have been granted, and the State would have had insufficient evidence against him to convict. Petitioner has failed to overcome “doubly” more difficult standard of 28 U.S.C. § 2254(d) and Strickland. Harrington, 562 U.S. at 105. He has failed to put forth argument or evidence that counsel was ineffective in the ways in which he handled Petitioner's confession, nor does a reasonable probability exist that but for counsel's alleged errors, Petitioner would have proceeded to trial.
As Petitioner argues in his motion for summary judgment, “[h]ad Petitioner's counsel moved to suppress the confession, a suppression would have been granted which would have resulted in the indictment being quashed ....” [ECF No. 17 at 7].
Furthermore, Petitioner has not shown anything that would overcome the “strong presumption of veracity” carried by his statements at the guilty plea hearing of a voluntary, knowing, and intelligent decision to plead guilty. See United States v. Morrow, 914 F.2d 608, 614 (4th Cir. 1990); Turner v. Warden, Livesay Corr. Inst., C/A No. 6:11-2692-RBH, 2012 WL 3834840, at *9 (D.S.C. July 27, 2012), report and recommendation adopted, C/A No. 6:11-02692-RBH, 2012 WL 3834863 (D.S.C. Sept. 4, 2012). The transcript of the plea hearing shows the trial court carefully questioned Petitioner and Petitioner testified that he understood the trial-related rights he was giving 33 up by pleading guilty, including his ability to challenge his confession, and that he was satisfied with plea counsel's representation and had no complaints about law enforcements' behavior.
Thus, the undersigned finds that the PCR court's rejection of Petitioner's claims of ineffective assistance of counsel and involuntary plea represents a reasonable interpretation of the record facts and is not contrary to established federal law. Accordingly, Respondent's motion for summary judgment should be granted and Petitioner's motion for summary judgment be denied as to Grounds One, Two, and Five.
Petitioner's motion for summary judgment, as amended, addresses only Grounds One, Two, and Five. [See ECF Nos. 17, 31].
b. Grounds Three and Four
In Grounds Three and Four, Petitioner argues trial counsel was ineffective for (3) failing to investigate the whereabouts of voice recorder evidence and failing to develop a Brady violation where this evidence was withheld and (4) failing to review discovery with him.
As to Ground Three, Petitioner argues that an officer, Lt. Lamb (“Lamb”), was in the car that transported him on the day he gave his confession, and Lamb had a tape recorder that would have recorded Petitioner asking to speak to an attorney. [See, e.g., ECF No. 19-1 at 114]. However, Steadman testified at the PCR reconstruction hearing that he had no 34 recollection of having had a tape recorder in the car, that Petitioner did not ask for an attorney, and that Steadman “would've heard him ask if he would've ask[ed] for one sitting in the backseat.” See id. at 153, 155.
As stated above, the PCR court found Steadman to be a credible witness, and Petitioner to not be, and Petitioner has failed to provide evidence or argument requiring the court to disregard the PCR court's credibility determination. See, e.g., Horner v. Nines, 995 F.3d 185, 211 (4th Cir. 2021) (“Again, such credibility determinations rest squarely with the state courts to make and cannot be overturned on federal habeas relief unless they rise to the level of ‘stark and clear' error.”) (citations omitted).
As to Ground Four and the issue of discovery, the PCR court found as follows:
This Court finds that counsel was not ineffective for failing to share discovery with the Applicant. This Court finds that the Applicant was not credible. Furthermore, the Applicant has presented no evidence that he was prejudiced in any way from failing to review videotape of his confession, his written statement, Detective Stedman's report, or his mental health evaluation. This Court notes that the Applicant was allowed to review his statement during the guilty plea proceedings. This Court finds the Applicant has failed to carry his burden of proof and denies and dismisses this allegation . . . .Id. at 58 (citations to the trial transcript omitted).
Petitioner identifies two pieces of relevant discovery that he argues he should have reviewed prior to entering a guilty plea: the first pre-interrogation 35 waiver form that he refused to sign and a report from the South Carolina Law Enforcement Division (“SLED”). [ECF No. 1 at 58-59, see also ECF No. 28 at 4]. Petitioner argues the form shows his Miranda right were violated and the SLED report would show “‘no human DNA detected' when SLED analyzed the bones from the spot I led police to.” See id.
Petitioner has failed to demonstrate that counsel's representation was unreasonable with respect to the discovery issue. As to the first piece of discovery, as discussed above, the PCR court found credible Steadman's testimony that the first form not signed by Petitioner concerned the sexual assault charge, not the murder charge. Although this evidence offers limited support as to Petitioner's version of events-a version the PCR court found not be credible-this evidence is not, as argued by Petitioner, “unambiguous proof that [he] exercised [his] Miranda rights” as to the murder charge and that Steadman lied [see ECF No. 26 at 9, 21], particularly where the form could have simply been mislabeled and where the PCR court found credible that thereafter Petitioner voluntarily confessed to the murder.
As to the second piece of discovery, although Petitioner argues if he had known about this report, he would have gone to trial “and left it up to the jury to decide if the remains found were in fact human, ” [ECF No. 1 at 58], the court finds this argument without merit. There is no evidence that Petitioner's trial counsel was objectively unreasonable with respect to this or any discovery. 36
Additionally, there is no evidence of prejudice where Petitioner fails to demonstrate any “reasonable probability” that these alleged actions affected the outcome of the proceedings.
Accordingly, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to these Grounds Three and Four.
c. Grounds Six and Seven
In Grounds Six and Seven, Petitioner argues that both trial counsel and the trial court should have inquired more into his mental health, (6) in that the trial court failed to conduct a competency hearing, and (7) trial counsel failed to obtain a “full” and meaningful mental health evaluation. Petitioner argues he has a history of mental problems and past head injuries, that the court ordered a mental health evaluation, but the evaluation was incomplete due to him becoming “extremely emotional, ” and therefore “there was never a report confirming or denying my competency to stand trial.” [ECF No. 1 at 26, ECF No. 26 at 18].
These grounds should be dismissed for multiple reasons. First, it appears that Petitioner, in briefing before this court, has withdrawn these grounds. [See ECF No. 26 at 19 (“Although I disagree with the Respondent's argument on this issue, I would like to withdraw this issue in Ground Six and Ground Seven because it probably lacks merit as [a] result of my not having been 37 ‘officially' diagnosed by psychiatrist as several of my immediate family members have.”)].
Additionally, Petitioner failed to present these claims to any state court, and they are therefore procedurally defaulted, although Respondent has failed to assert the affirmative defenses of exhaustion and procedural default for any of Petitioner's claims. [See ECF No. 19].
Finally, at the beginning of Petitioner's plea hearing, the following ensued:
The Court: Within the last twenty-four (24) hours, have you taken any medication, drugs, or alcohol?
The Defendant: No, sir.
The Court: Mr. Bartosh, are you satisfied that your client is competent to stand trial?
Mr. Bartosh: Yes, sir.
The Court: Are you aware of anything, in regards to his state of mind, any mental issues, that I need to know about at this time?
Mr. Bartosh: No, sir.
The Court: Mr. Hampton, is there anything regarding your ability to understand what you're doing here this morning that I need to understand?
The Defendant: No, sir.
The Court: All right. You're thinking clearly this morning?
The Defendant: Yes, sir . . . .38 [ECF No. 19-1 at 7-8].
Petitioner argues “counsel lied to the judge when the judge asked him if he was aware of any mental health issues that I had.” [ECF No. 26 at 18]. However, review of the above indicates that is not the question the trial judge asked trial counsel.
Although Petitioner argues that “[h]ad counsel demanded a full evaluation, it is probable that I would have been diagnosed with multiple mental disorders and would have had a chance for a competency hearing that could have gone either way” [ECF No. 26 at 19], Petitioner has failed to provide any evidence or argument that he was incompetent to enter a guilty plea. Additionally, there is no evidence in the record that his trial counsel was ineffective for failing to further investigate his mental health or that any prejudice ensued by this alleged failure beyond Petitioner's mere speculation. Finally, as stated above, Petitioner has not shown anything that would overcome the “strong presumption of veracity” carried by his statements at the guilty plea hearing of a voluntary, knowing, and intelligent decision to plead guilty.
Accordingly, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to these issues. 39
d. Grounds Eight, Nine, and Eleven
In Grounds Eight and Eleven, Petitioner argues PCR counsel was ineffective for failing to amend his PCR application to include a Brady claim/state misconduct claim concerning the alleged recording of his confession and for failing to file a Rule 59(e) motion concerning trial counsel's failure to file a motion to suppress his confession. In Ground Nine, Petitioner argues PCR counsel was ineffective for failing to pursue a continuance when he discovered Lamb would not be present.
Petitioner argues that Lamb, not Steadman, was the main law enforcement officer that violated his Miranda rights on the day he gave his confession, and Lamb did not appear at his PCR hearing, even though he was subpoenaed. [See ECF No. 1 at 29].
To the extent Petitioner asserts these grounds as independent bases for relief, he has not raised a cognizable federal habeas claim. See 28 U.S.C. 2254(i) (“The 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.”). Ineffective assistance of postconviction counsel can only serve as cause to excuse a procedural default for a claim that was never raised at the initial collateral proceeding. Martinez v. Ryan, 566 U.S. 1, at 9, 14 (2012). It cannot serve as an independent basis for relief. See Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008) (“Thus, even where there is some error in state post-conviction proceedings, a petitioner is 40 not entitled to federal habeas relief because the assignment of error relating to those post-conviction proceedings represents an attack on a proceeding collateral to detention and not to the detention itself.”).
To the extent Grounds Eight and Eleven pertain to ineffective assistance of trial counsel, they are procedurally defaulted because they were never presented to a state court, and, although Petitioner argues otherwise [see ECF No. 1 at 28], Martinez does not excuse Petitioner's default. As stated above, procedural default may be excused only if the petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a 41 fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. “Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial” when the petitioner's first opportunity to raise a claim of ineffective assistance of trial counsel is during the state's collateral review proceedings. Martinez v. Ryan, 566 U.S. 1, at 9, 17 (2012). However, a petitioner “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.” Id. at 14.
Ground Nine is also procedurally defaulted. Petitioner presented this claim to the state court in his second application and amended PCR application. [See ECF No. 19-1 at 95-96]. However, the claims found in this second PCR application and amended application appear to have been denied as successive and were not otherwise addressed in the PCR court's order. [See ECF No. 191 at 98 (PCR court stating “an applicant is entitled to a full adjudication on the merits of the original petition), see also ECF at 19-2 (South Carolina Supreme Court noting “[t]his matter is before the Court by way of a notice of appeal from an order of the circuit court finding petitioner is entitled to a belated review of the order issued in petitioner's first post-conviction relief (PCR) action . . . .”) (emphasis added)]. Petitioner did not file a Rule 59(e) motion to alter or amend the PCR court's ruling. Therefore, because these claims were not ruled upon by the state appellate courts, they are not preserved for review. See, e.g., Coleman, 501 U.S. at 731-32; see also Witherspoon v. Stonebreaker, C/A No. 8:19-336-HMH-JDA, 2019 WL 3773869, at *4-5 (D.S.C. Aug. 12, 2019) (“However, trial counsel's failure to move for a mistrial was not addressed in the PCR court's order of dismissal and was not raised in Witherspoon's PCR appeal. Accordingly, these issues are not preserved for review and are procedurally defaulted.”).
As already addressed by the court above, Petitioner's claims regarding trial counsel's handling of his confession lack merit. Therefore, the undersigned recommends Respondent's motion for summary judgment be granted as to Grounds Eight, Nine, and Eleven.
e. Ground Ten
Similarly, Petitioner argues PCR counsel was ineffective for not arguing trial counsel's ineffectiveness as to Grounds Two, Three, and Seven. As already addressed, these grounds lack merit. Therefore, the undersigned recommends Respondent's motion for summary judgment be granted as to these Ground Ten. 42
f. Ground Twelve
In Ground Twelve, Petitioner argues he was denied due process of law and a fair hearing when the PCR court denied his motion for a continuance so he could review the discovery file and to re-subpoena Lamb. However, alleged infirmities in a state post-conviction action are not matters that may be addressed in federal habeas actions as a free-standing ground. Bryant v. State of Md., 848 F.2d 492, 493 (4th Cir. 1988).
For these reasons, the undersigned recommends that summary judgment be granted as to Ground Twelve.
g. Ground Thirteen
In Ground Thirteen, Petitioner argues appellate counsel was ineffective, first, “where counsel failed to argue that PCR counsel was ineffective for not filing a Rule 59(e) motion asking the court to amend its order to make specific findings of fact and conclusions of law on the issue that plea counsel was ineffective for failing to file a motion to suppress his confession, ” second, “for not attempting to file a Rule 59(e) motion after the reconstruction hearing, ” and, third “for failing to impeach investigator Steadman as he repeatedly lied on the stand about the ‘refused to sign' Miranda waiver as being for a different case.”
A defendant is constitutionally entitled to the effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387 (1985); Tisdale v. State, 594 S.E.2d 166, 167 (S.C. 2004). 43 To show ineffective assistance of appellate counsel, Petitioner must show (1) that appellate counsel's performance was deficient and (2) that he suffered prejudice from appellate counsel's deficiency. Tisdale, 594 S.E.2d at 167.
Both the first and second issues presented by Petitioner concern the handling of his confession. [See ECF No. 1 at 88-90]. As stated, Petitioner's claims regarding trial counsel's handling of his confession lack merit; therefore, appellate counsel was not ineffective for not filing a Rule 59(e) motion concerning this issue because Petitioner cannot show appellate counsel's performance was deficient or that he suffered prejudice from this deficiency.
As to the third issue, Petitioner argues that appellate counsel was ineffective for failing to cross-examine Steadman at the reconstruction hearing regarding the two waiver forms that Steadman testified concerned two different charges but that bore the same case number or, at least, adding these waiver forms into the record at the time. See id. at 90-95. However, as discussed above, a review of the record indicates that Steadman testified multiple times that the first and second waiver forms concerned the sexual assault charge and murder charge, respectively, and that even though Petitioner maintained otherwise, the trial court found Steadman's testimony credible and Petitioner's not. Petitioner has failed to show that appellate 44 counsel's performance was deficient as to this issue or that he suffered prejudice from this alleged deficiency.
Therefore, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to this Ground Thirteen.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court deny Petitioner's motion for summary judgment, as amended [ECF Nos. 17, 31], grant Respondent's motion for summary judgment [ECF No. 20], and dismiss the petition with prejudice. If the court accepts this recommendation, Petitioner's motion to appoint counsel, for discovery, and to amend [ECF Nos. 27, 28, 29] will be rendered moot.
IT IS SO RECOMMENDED. 45