Jeter v. Martell

Full title: Alonzo C. Jeter, III, Petitioner, v. Warden Wilfredo Martell, Respondents.

Court: United States District Court, D. South Carolina

Date published: Jul 3, 2024

C. A. 9:23-cv-03253-MGL-MHC (D.S.C. Jul. 3, 2024)

Opinion

C. A. 9:23-cv-03253-MGL-MHC

07-03-2024

Alonzo C. Jeter, III, Petitioner, v. Warden Wilfredo Martell, Respondents.

Molly H. Cherry United States Magistrate Judge

REPORT AND RECOMMENDATION AND ORDER

Molly H. Cherry United States Magistrate Judge

Petitioner Alonzo C. Jeter (“Petitioner”), a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. Respondent Warden Wilfredo Martell (“Respondent”) filed a Motion for Summary Judgment, along with a Return and Memorandum (“Motion”). ECF Nos. 25, 26. Petitioner filed various documents which the Court construes collectively as a Response in Opposition.¹ ECF Nos. 36, 41, 45. Respondent filed a Reply.² ECF No. 51. The matter is ripe for review.³

1 Petitioner filed a Motion for Leave to File Excess Pages for his Reply. ECF No. 38. The Motion for Leave is granted, and the Court has considered the entirety of Petitioner's arguments in opposition to the Motion.

2 Respondent also filed a Motion for Leave to File Excess Pages for his Reply. ECF No. 50. The Motion for Leave is granted.

3 Since Respondent filed his Motion, Petitioner has filed several other motions requesting a variety of relief. See ECF Nos. 30, 31, 37, 42, 43, 44, 55, 56. Because the habeas Petition is subject to dismissal with prejudice, these motions are moot.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the assigned district judge referred the Motion to the undersigned for a report and recommendation. For the reasons that follow, the Court recommends that Respondent's Motion be granted and the Petition be dismissed with prejudice.

I. BACKGROUND

The procedural history as described by Respondent has not been disputed by Petitioner in his Response and is set forth as follows.

In 2014 and 2015, Petitioner was charged with two counts of Distribution of Methamphetamine, 3rd or subsequent offense (Indictment #s 2015-GS-11-0461 and -0463), two counts of Distribution of Methamphetamine within a half-mile of a Park or School, 3rd or subsequent offense (Ind. #s 2015-GS-11-0462 and -0464), and one count of Trafficking in Methamphetamine 10-28 grams, 3rd offense (Ind. # 2015-GS-11-0465). ECF No. 1 at 1-2. Petitioner was also charged with other drug charges unrelated to the above charges. Petitioner was represented by Christopher Kennedy, Esquire (“Plea Counsel”).

On July 16, 2015, Petitioner waived presentment to the grand jury on the above listed indictments and pled guilty to the lesser included offenses of two counts of Distribution of Methamphetamine, 2nd offense, two counts of Distribution of Methamphetamine within a halfmile of a School or Park, 2nd offense, and Trafficking in Methamphetamine 10-28 grams, 2nd offense. The other unrelated drug charges were dismissed as part of the plea of guilty. This was a negotiated plea/sentence of 15 years with all other sentences to run concurrently. Pursuant to the negotiated sentence of 15 years and concurrent sentencing, the Honorable Lee S. Alford (“Plea Judge”) accepted the pleas of guilty and sentenced Petitioner in accordance with the negotiated sentence to imprisonment for concurrent terms of 15 years for each count of Distribution of Methamphetamine 2nd offense and Trafficking in Methamphetamine 2nd offense, and 10 years for each count of Distribution of Methamphetamine within a half-mile of a Park or School. Petitioner did not directly appeal his guilty plea convictions or sentences. These are the convictions for which Petitioner is currently incarcerated in the South Carolina prison system.

On April 28, 2016, Petitioner filed an application for post-conviction relief (“PCR”), alleging ineffective assistance of Plea Counsel regarding the guilty plea. ECF No. 25-1 at 28-39. On March 20, 2017, a PCR evidentiary hearing was convened before the Honorable J. Robin Stillwell (“PCR Judge”). ECF No. 25-1 at 50-118. Petitioner was represented by Stephen D. Epps, Esquire (“PCR Counsel”). The State was represented by Julie Coleman with the South Carolina Attorney General's Office. After the initial evidentiary hearing, Ms. Coleman filed a motion to reopen the record on April 27, 2017. The PCR Judge held a second hearing on June 30, 2017, and the State was allowed to re-open the record and submit additional documentation. ECF No. 25-1 at 122-53. The State submitted Petitioner's prior convictions and sentences for Possession of Crack Cocaine from 2004.

Petitioner maintained he was entitled to PCR based on the following allegations:

1. Ineffective Assistance of Counsel, in that:

a. “Counsel failed to investigate and request continuance.... A continuance would have given counsel more time to investigate, prepare for mitigation and bargaining, as well as time to discover the applicant's state of mind and needs.”

b. “Counsel failed to challenge insufficient indictments.

c. “Counsel failed to present nor allow me to present mitigating evidence and factors at opportunity.

d. “Counsel failed to obtain the original plea offer of seven (7) years.

e. “Counsel failed to inform me of my right to appeal and make sure I understood what it was and how to do it.”

f. “Charges were erroneously enhanced - Prior marijuana conviction should not have been used to enhance my charges. It also had been 11 years since my first conviction and therefore should not have been used to enhance.”

2. Due Process Violation

a. “My constitutional rights of due process under the Fourteenth Amendment, and applicable case law, was violated as counsel failed to request a competency hearing.”

i. Absent counsel's errors there is a reasonable probability that the evidence would have been reweighed and thus it would have been concluded that the balance of aggravating and mitigating circumstances did not warrant such harsh sentencing and punishment.

ii. Applicant also had the right to be competent when entering a guilty plea and a complete picture of the Applicant's mental condition would have established that the Applicant was suffering from a mental or emotional disturbance both at the time the crimes were committed and at the time of entering a plea of guilty.

iii. Due process prohibits this conviction therefore the conviction is illegal.

3. Lack of Subject Matter Jurisdiction

a. “The court lacked subject matter jurisdiction to accept my guilty pleas.”

ECF No. 25-1 at 178.

On July 24, 2017, the PCR Judge issued an Order of Dismissal denying and dismissing the PCR application with prejudice. ECF No. 25-1 at 176-90. The Order was filed on July 27, 2017. See ECF No. 25-1 at 176. Petitioner filed a pro se Rule 59, SCRCP, Motion to Alter or Amend the Order of Dismissal, which was ultimately denied by the PCR Judge. See ECF No. 25-1 at 211.

Petitioner appealed from the PCR Judge's denial of his PCR action by way of a Petition for Writ of Certiorari. ECF No. 25-2. Petitioner was represented in the appeal by Lanelle C. Durant, Esquire (“PCR Appellate Counsel”). Petitioner raised the following issue to the Supreme Court of South Carolina:

Did the PCR court err in not finding plea counsel ineffective for failing to challenge the improper enhancement of Petitioner's 2015 convictions based on Petitioner's two 2004 convictions for possession of crack first which Petitioner believed were treated as one first offense so could not be used for the purpose of enhancement as they were outside the ten year limit and because he pled guilty to both at the same time and both were marked as first offenses?

ECF No. 25-2 at 3.

Petitioner subsequently moved to relieve counsel and proceed pro se. See ECF No. 25-3. Petitioner then filed his own Petition for Writ of Certiorari raising the following issues:

1. Did the PCR Court err in denying post-conviction relief to Petitioner when plea counsel failed to have Petitioner's mental competency examined and allowed Petitioner to enter in a guilty plea while under duress?

2. Did the PCR Court err in finding that Plea Counsel was not ineffective for failing to provide adequate advice concerning proximity within one-half mile of a park/school?

3. Did the PCR Court err in not finding Plea Counsel ineffective for failing to challenge the improper enhancement of Petitioner's 2015 methamphetamine convictions based on a prior possession of crack cocaine conviction from 2004 and a possession of marijuana conviction from 2013?

4. Did the PCR Court err in denying Petitioner's Motion for Discovery which would have provided the PCR Court and Petitioner with facts and evidence of Petitioner's PCR claims?

5. Did the PCR Court err in granting the State's Motion to Reopen the Record, thereby prejudicing Petitioner and violating Petitioner's 14th Amendment Due Process Rights?

ECF No. 25-3 at 3.

The State filed a Return to the pro se Petition for Writ of Certiorari. ECF No. 25-5. The Supreme Court of South Carolina transferred the appeal to the South Carolina Court of Appeals pursuant to Rule 243(1), SCACR. ECF No. 25-6. The Court of Appeals granted certiorari only on appellate issue two and denied certiorari on all other grounds raised in the pro se Petition for Writ of Certiorari. ECF No. 25-7.

On February 15, 2023, the South Carolina Court of Appeals affirmed the PCR Judge's determination as to appellate issue two. Jeter v. State, No. 2017-001777, 2023 WL 2015703, at *1-4 (S.C. Ct. App. Feb. 15, 2023). The Remittitur was issued on May 1, 2023, and filed on May 3, 2023. ECF No. 25-11.

Petitioner now raises the following grounds in his federal habeas Petition:

GROUND ONE: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution

SUPPORTING FACTS: Plea Counsel failed to investigate the facts, the law, and any and all other aspects of the case and charges independently. Petitioner was charged with distribution of methamphetamine in proximity of a half-mile of Park/School [Macedonia Baptist Church] under South Carolina Code Ann. § 4453-445. [] Plea Counsel failed to be competent to know that churches, nor playgrounds which are on the property of and/or are owned by churches, are not encompassed under the [statute].

GROUND TWO: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution

SUPPORTING FACTS: Plea Counsel failed to be competent of the requirements and elements of § 44-53-445. Specifically, Plea Counsel failed to realize that the requirement and element of [the statute] is that the park/school/playground be “public.” As churches and all church property is “private” this charge would not have stood if properly challenged by Plea Counsel. Petitioner should not have been encouraged to plead guilty to this charge. Plea Counsel was ineffective for failing to investigate and be competent of the law in this regard.

GROUND THREE: Ineffective assistance of counsel in violation of Sixth Amendment to the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to realize that the requirement and element of § 44-53-445 is that the offender actually “know” that he is committing the act within a half-mile range of a public park/school/playground. As churches and all church property is “private” there was no way possible that Petitioner could actually “know” that he was committing the act within a half-mile range of a “public” park/school/playground. This charge would not have stood if properly challenged by Plea Counsel. Petitioner should not have been encouraged to plead guilty to this charge. Plea Counsel was ineffective for failing to investigate and be competent of the law in this regard.

GROUND FOUR: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel did not investigate the scene of the church nor did Plea Counsel know if the location where the act was committed was actually within a half-mile range from the “private” church and its “private” basketball goal. This charge would not have stood if properly challenged by Plea Counsel. Petitioner should not have been encouraged to plead guilty to this charge. Plea Counsel was ineffective for failing to investigate and be competent of the law in this regard.

GROUND FIVE: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to investigate Petitioner's criminal history and records and thus failed to realize that Petitioner's record did not contain any prior conviction that could be used as an enhancer to Petitioner's current charges. Petitioner's prior plea, as a result of an agreement, resulted in only a single 1st offense conviction being reflected on his record for any further enhancement purposes. This was clearly reflected on any and all of Petitioner's criminal history reports as such. As the 2004 conviction was over 10 years old, it could not be used in 2015 as an enhancer. Plea Counsel was ineffective as Plea Counsel allowed the solicitor to use this conviction along with a 2013 conviction for simple possession of marijuana, together, to charge and seek to convict Plaintiff of 3rd offense conviction of his current charges. Marijuana convictions cannot be used as an enhancer to methamphetamine charges. Petitioner should not have been encouraged to plead guilty to this charge. Plea Counsel was ineffective for failing to investigate and be competent of the law in this regard. This charge would not have stood if properly challenged by Plea Counsel. Petitioner should not have been encouraged to plead guilty to these charges as “Lesser-Included Offenses” as they were not truly lesser included. The plea based on “lesser included” was nothing more than an empty shell as Petitioner did not receive any benefit of a lesser included offense. The charges would have been only 2nd offenses at best, thus pleading to charges labeled a 2nd offenses under the guise that they were lesser offenses was in error. Plea Counsel was ineffective for failing to investigate and be competent of the law in this regard, and was ineffective in having Petitioner plead guilty as such.

GROUND SIX: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to investigate and be competent of the facts and law in this case and totality and consequently Plea Counsel engaged in plea negotiations incompletely and ignorantly and thus did not have any bargaining power to effectively and strategically negotiate against the state. Plea Counsel's failures caused Plea Counsel to lack mitigation evidence and competency of the law to realize that the state was simply bringing illegitimate “stacked” charges to the negotiation as leverage. Counsel's failure to investigate and incompetency as to facts and law caused counsel to subsequently fail to subject the state's case to meaningful and adversarial testing. Petitioner did not and could not enter a plea of guilty knowingly, voluntarily, and intelligently and with eyes open due to the fact that not only was Petitioner ignorant and incompetent - but so was Plea Counsel.

GROUND SEVEN: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to inform Petitioner of each and every element of the proximity to half-mile of school/park/playground charge. Plea Counsel failed to inform the Petitioner of each element even as the sentencing judge failed to ensure that Petitioner was aware of the elements of the charge. Had Petitioner been informed of each of the elements which were required to be met which would allow the charge to stand, and also had each of the elements of the charges been properly [] discussed before the judge during the plea proceeding -Petitioner would have then been afforded the opportunity to act knowingly and thus decline to plead guilty. Also the sentencing judge would have been prompted and informed at that time to realize that the elements would not be met by the state.

GROUND EIGHT: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to object and ensure that the facts with regard to the proximity to half-mile of school/park/playground were cited on and for the record before the sentencing judge. The solicitor did not cite any facts with regard to the proximity charge and neither did the judge nor Plea Counsel seek and ensure that the facts were cited on and for the record. Had the facts been given, Petitioner would have then been afforded opportunity to show that the facts did not satisfy the elements which would have allowed the proximity charge to stand. Also, the sentencing judge would have then also realized that the facts did not present the elements which would satisfy the charge. This charge would not have stood if properly challenged by Plea Counsel. Petitioner should not have been encouraged to plead guilty to this charge. Plea Counsel was ineffective for failing to investigate and be competent of the law in this regard.

GROUND NINE: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to realize that the crimes consisted of two transactions rather than three as the Petitioner was charged. Plea counsel failed to view the video and realize this. Plea Counsel was ineffective by having Petitioner to enter a plea of guilty to three drug transactions rather than the two. This charge would not have stood if properly challenged by Plea Counsel. Petitioner should not have been encouraged to plead guilty to this charge. Plea Counsel was ineffective for failing to investigate and be competent of the law in this regard.

GROUND TEN: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to realize that the charges were based off of transactions which were in temporal proximity to one another and as a result of one agreement. The transactions were the result of one initial agreement. There was no second and separate agreement between the transactions. There was a prior agreement that both transactions would occur. The second transaction was a result

of the original impulse and did not occur as a result of a new bargain or agreement. The second transaction was dependent on the first transaction. There was one overall agreement which had been established at genesis. The transactions were temporal in nature. Also, the solicitor was without any proper prior convictions it could use as enhancers to Petitioner's current charges.

GROUND ELEVEN: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel was ineffective as he failed to realize that there was no possibility that Petitioner would receive a Life Without Possibility of Parole (LWOP) sentence. Petitioner did not have prior convictions on his record that could be used as enhancers to his current charges. The current charges which were a result of the transactions could not be tried and convicted separately in an attempt to expose Petitioner to a Life Without Parole sentence. The proximity charges (which were strikes) would not stand. This charge would not have stood if properly challenged by Plea Counsel. Petitioner should not have been encouraged to plead guilty to this charge. Plea Counsel was ineffective for failing to investigate and be competent of the law in this regard.

GROUND TWELVE: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel was ineffective in failing to challenge the insufficient indictments for the proximity charges. The indictment for the proximity charges simply stated that Petitioner was accused of making the transactions within one-half mile proximity of Macedonia Baptist Church Playground. The indictment failed to include the elements of (1) knowingly (2) public. Thus Petitioner was not informed that the proximity charge of South Carolina Code Ann. § 44-53-445 required the offender to “Know” that he was committing the infraction within a half-mile of a “Public” school/park/playground.

GROUND THIRTEEN: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel was ineffective in failing to acquire a mental competency examination of Petitioner and seek to be advised of Petitioner's mental health status. Petitioner was being held within the Cherokee County Detention Center, without bond, prior to his entry of the plea. Petitioner informed Plea Counsel that he was experiencing a mental breakdown, was not being provided medication by the Detention Center's medical provider, Southern Health Partners; and was being physically and mentally abused by the staff at the Detention Center. Plea Counsel was ineffective has he failed to ensure that Petitioner was not pleading guilty out of fear, duress, undue influence, outrage, and desperation for mental health treatment.

GROUND FOURTEEN: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Failure to obtain original 7-year plea offer.

GROUND FIFTEEN: Due Process Violation - Denial of Right to be Heard.

SUPPORTING FACTS: Failure to address argument against precedence: I raised an argument against precedence to the South Carolina Court of Appeals. Specifically, I sought to argue against the court's precedence which it set per its ruling the case of State v. Wakefield, 323 S.C. 189, 473 S.E.2d 831 (1996) with regard to South Carolina Code Ann Section 44-53-445 (the proximity statute).

GROUND SIXTEEN: South Carolina Code Ann. Section 44-53-470 is Unconstitutionally Void for Vagueness.

SUPPORTING FACTS: South Carolina's enhancement sentence for drug offenders - South Carolina Code Ann. § 44-53-470 is unconstitutionally both facially and as applied to Petitioner. The statute is void-for-vagueness as it fails to clearly inform an offender of the consequences for his actions. The Petitioner was not afforded the benefits of the Rule of Lenity which mandates that any ambiguity which exists within a statute is to be resolved in Petitioner's favor.

GROUND SEVENTEEN: Due Process Violation - Reopening the PostConviction Record and Frustration of Petitioner's Prior Plea and Terms of the Plea Agreement.

SUPPORTING FACTS: Petitioner's Due Process rights were treaded upon as the Post-Conviction Relief Judge in this case allowed the PCR Record to be reopened after the PCR proceeding had been held, all testimony had been given and received. Plea Counsel had already testified and Plea Counsel did not provide any excuse or reason as to why he failed to challenge the solicitor's erroneously using a prior marijuana conviction to enhance Petitioner's current charges. The PCR Court and its actions frustrated Petitioner's 2004 plea agreement and its agreement terms. This did violate the substantive and procedural due process rights of the Petitioner and has led to a mass of litigation with regard to Petitioner's 2004 plea agreement.

ECF No. 1 at 6-35.

II. STANDARDS OF REVIEW

A. Summary Judgment Standard

Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.

Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.

B. Federal Habeas Review under 28 U.S.C. § 2254

Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under § 2254(d),

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 with respect to any claim that

was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-

(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 State court proceeding.

28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law,” or “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”). A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).

Because “review under § 2254(d)(1) focuses on what a state court knew and did,” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[.] [thus,] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).

Accordingly, “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.” Williams, 529 U.S. at 410. Further, factual findings “made by a State court shall be presumed to be correct,” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III. DISCUSSION

Respondent argues the Petition should be dismissed for two main reasons. First, Respondent maintains that Grounds Six, Eight, Nine, Ten, Eleven, Fifteen, Sixteen, and Seventeen are barred for procedural reasons. Second, as to the remaining Grounds, Respondent generally argues that Petitioner failed to show ineffective assistance of counsel at any level of the state court proceedings. For the reasons that follow, the Court agrees with Respondent, and further finds Ground Fourteen is procedurally barred.

A. Procedural Requirements for Habeas Petitions

A federal court considering a § 2254 petition “generally may consider a state prisoner's federal claim only if he has first presented that claim to the state court in accordance with state procedures.” Shinn v. Ramirez, 142 S.Ct. 1718, 1727 (2022) (emphasis added). That is, before seeking habeas relief in federal court, a petitioner must first exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Thus, when presented with an application for habeas relief, the federal court's first inquiry is determining whether the claim raised in the petition was “adjudicated on the merits” by the state court. 28 U.S.C. § 2254(d). If a prisoner has properly raised his claims before the state court in accordance with state procedures, he has met the exhaustion requirement and a federal court may hear those claims.⁴

4 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. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-2780, 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 generally result in the application of a procedural bar by the South Carolina Supreme Court. See Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009) (discussing procedural bar and noting the “general rule” in South Carolina is that where a party fails to file a Rule 59(e) motion, the argument is forfeited). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. A PCR application 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. § 17-27-45. In South Carolina, 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. See In re Exhaustion of State Remedies in Crim. & Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (S.C. 1990) (“[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”).

However, when a state prisoner has failed to properly raise his federal claims in accordance with state procedural rules, and the state court would dismiss the claim on that basis, the claim is “procedurally defaulted.”⁵ Shinn, 142 S.Ct. at 1727-28. Under the doctrine of procedural default-also known as procedural bar-federal courts generally decline to consider those claims not presented to the state court in accordance with the state's procedural rules. See id. at 1732; Mahdi v. Stirling, 20 F.4th 846, 892 (4th Cir. 2021). This is because allowing a state prisoner to simply bypass a state's procedural requirements on their way to federal court would render the exhaustion requirement meaningless. See Shinn, 142 S.Ct. at 1732. As the Supreme Court recently explained, exhaustion and procedural default promote our dual system of federal and state judicial comity: “Exhaustion affords States an initial opportunity to pass upon and correct alleged violations of prisoners federal rights, and procedural default protects against the significant harm to the States that results from the failure of federal courts to respect state procedural rules.” Id. (internal citations and quotation marks omitted). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear.⁶ Teague v. Lane, 489 U.S. 288, 297-98 (1989).

5 In these instances where a state court would dismiss such claims for their procedural failures, those claims are “technically exhausted” in the habeas context, because state court remedies are “‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93 (2006); see also Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

6 The South Carolina Supreme Court will refuse to consider claims raised in an appeal that could have been raised at an earlier time. See, e.g., Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)). Further, if a prisoner has failed to file a direct appeal or a PCR application 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.

Notwithstanding the foregoing, “a federal court is not required to automatically deny unexhausted or procedurally defaulted claims.” Shinn, 142 S.Ct. at 1732. Federal courts may consider procedurally defaulted claims in limited circumstances in which a petitioner shows (1) sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or by (2) “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. 2008); see also Richardson v. Kornegay, 3 F.4th 687, 700 (4th Cir. 2021) (“We excuse a procedural default in two circumstances: (1) when the petitioner establishes ‘cause and prejudice' for the default; or (2) when the default would result in a ‘fundamental miscarriage of justice.'” (citation omitted)); Farabee v. Clarke, 967 F.3d 380, 395 (4th Cir. 2020).

“To establish cause, the petitioner must show that some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court at the appropriate time, or that the factual or legal basis for the claim was not reasonably available [] at the time of the state proceeding.” Mahdi, 20 F.4th at 893 (internal citations and quotation marks omitted). To establish prejudice, the petitioner “must show not merely a substantial federal claim, such that the errors at [] trial created a possibility of prejudice, but rather that the constitutional violation worked to his actual and substantial disadvantage.” Shinn, 142 S.Ct. at 1733 (emphasis in original) (citation and internal quotation marks omitted).

As an initial matter, the Court notes that Petitioner raises seventeen Grounds in his Petition. Respondent argues that because the various Grounds mention the same or similar topics, “it is very confusing what grounds are procedurally barred and which are not.” ECF No. 25 at 36. The Court generally agrees with this sentiment, as there is considerable factual overlap between the Grounds raised. The Court is thus guided by the purpose of federal habeas review, which “is to provide criminal defendants with a mechanism to review state court interpretations of federal constitutional protections, while providing deference to the state-court proceedings.” Kornahrens v. Evatt, 66 F.3d 1350, 1362 (4th Cir. 1995) (emphasis added).

Because this Court's role is “limited to reviewing state-court judgments, federal review is inappropriate if a prisoner failed to raise his claim and have it reviewed by a state court.” Id. Thus, despite this Court's liberal construction of pro se filings, if the Grounds Petitioner raises do not appear to have been considered by the state court, those Grounds will be considered procedurally barred. With the above in mind, the undersigned turns to the Grounds raised in the Petition. For the reasons that follow, the undersigned finds Grounds Six, Eight, Nine, Ten, Eleven, Fourteen, Fifteen, Sixteen, and Seventeen are procedurally barred.

1. Grounds Six, Eleven, and Fourteen

Petitioner's Ground Six, Eleven, and Fourteen read:

GROUND SIX: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to investigate and be competent of the facts and law in this case and totality and consequently Plea Counsel engaged in plea negotiations incompletely and ignorantly and thus did not have any bargaining power to effectively and strategically negotiate against the state. Plea Counsel's failures caused Plea Counsel to lack mitigation evidence and competency of the law to realize that the state was simply bringing illegitimate “stacked” charges to the negotiation as leverage. Counsel's failure to investigate and incompetency as to facts and law caused counsel to subsequently fail to subject the state's case to meaningful and adversarial testing. Petitioner did not and could not enter a plea of guilty knowingly, voluntarily, and intelligently and with eyes open due to the fact that not only was Petitioner ignorant and incompetent - but so was Plea Counsel.

ECF No. 1 at 14-15.

GROUND ELEVEN: Ineffective assistance of counsel in violation of Sixth

Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel was ineffective as he failed to realize that there was no possibility that Petitioner would receive a Life Without Possibility of Parole (LWOP) sentence. Petitioner did not have prior convictions on his record that could be used as enhancers to his current charges. The current charges which were a result of the transactions could not be tried and convicted separately in an attempt to expose Petitioner to a Life Without Parole sentence. The proximity charges (which were strikes) would not stand.

ECF No. 1 at 23-24.

GROUND FOURTEEN: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Failure to obtain original 7-year plea offer.

ECF No. 1 at 28-29.

Upon review, Ground Six, Eleven, and Fourteen were not fully adjudicated on the merits in state court. The Court observes that Grounds Six and Eleven appear to have been raised to and ruled on by the PCR Judge. See ECF No. 25-1 at 178, 182-83 (ruling on Plea Counsel's alleged failure to present mitigation evidence); Id. at 178, 184-85 (ruling on Plea Counsel's alleged failure to challenge improper enhancements and discussing Plea Counsel's testimony regarding potential LWOP sentence). Further, Ground Fourteen was raised to and ruled on by the PCR Judge. Id. at 178, 183.

However, Petitioner did not raise these issues in the petition for a writ of certiorari.⁷ ECF No. 25-3 at 3. Therefore, these Grounds are procedurally barred from federal habeas review. See Mahdi, 20 F.4th at 893 (noting “a claim is procedurally barred if the petitioner fails to raise it in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision” (cleaned up) (citation omitted)); Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (finding a petitioner's claim in his federal habeas petition was procedurally defaulted when he raised the claim in PCR but did not present it in his petition for certiorari filed with the Supreme Court of South Carolina); Whitley v. Bair, 802 F.2d 1487, 1500 (4th Cir. 1986) (“[F]ailure to appeal claims disposed of by state habeas trial court constitutes a procedural bar to further federal review of such claims.”)

7 Respondent appears to think Ground Fourteen is preserved, stating it was “raised on appeal from PCR, but certiorari was denied as to this issue.” ECF No. 25 at 80. However, this does not appear to be correct, as nowhere within the five issues raised in the petition for a writ of certiorari did Petitioner raise an ineffective assistance of counsel claim regarding Plea Counsel's alleged failure to procure the original seven-year plea deal. See ECF No. 25-3. Even if Ground Fourteen was not procedurally barred, given the evidence and record before the PCR Judge (notably that the Solicitor never promised Petitioner or Plea Counsel a 7-year offer and any offer was contingent on law enforcement approving it, which they did not, see ECF No. 25-1 at 87-90, 101-04), Petitioner has not shown the PCR Judge unreasonably applied United States Supreme Court precedent nor shown by clear and convincing evidence that the PCR Judge reached an unreasonable factual determination. Accordingly, summary judgment is appropriate.

Moreover, Petitioner has not shown, much less argued, sufficient cause and actual prejudice which would otherwise allow this Court to consider these Grounds. See Coleman, 501 U.S. 722, 750 (1991) (“[F]ederal habeas review of the claims is barred unless the prisoner 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 fundamental miscarriage of justice.”); see also Shinn, 142 S.Ct. at 1730 (“Respondents do not dispute, and therefore concede, that their habeas petitions fail on the state-court record alone.”). Although Petitioner appears to maintain that his PCR Counsel was ineffective-which could constitute “cause” and may excuse the default under Martinez v. Ryan, 566 U.S. 1 (2012)-he raises those arguments regarding Grounds that are not procedurally barred. See ECF No. 41 at 16-21 (arguing Grounds 1-4 and 7 “survive under Martinez”).⁸ To the extent Petitioner is attempting to claim ineffective assistance of PCR Appellate Counsel regarding Grounds Six, Eleven, or Fourteen to show “cause” and excuse the default under Martinez, the undersigned notes Martinez is inapplicable. The Supreme Court created this narrow exception to be applicable only to allegations of ineffective assistance of PCR Counsel-it “does not apply to claims of [ineffective assistance of counsel] by PCR appellate counsel.” Mahdi, 20 F.4th at 893 (emphasis added).

8 Generally, PCR Counsel's errors do not qualify as cause to excuse a procedural default. See Owens v. Stirling, 967 F.3d 396, 422 (4th Cir. 2020), cert. denied, 209 L.Ed.2d 547, 141 S.Ct. 2513 (2021). However, “when state law requires ‘claims of ineffective assistance of trial counsel [to] be raised in an initial-review collateral proceeding' and not on direct review-which South Carolina law does-procedural default does not bar federal habeas review of ‘a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.'” Sigmon v. Stirling, 956 F.3d 183, 198 (4th Cir. 2020) (quoting Martinez, 566 U.S. at 17), as amended (Apr. 15, 2020), cert. denied, 208 L.Ed.2d 545, 141 S.Ct. 1094 (2021). Accordingly, to invoke Martinez and obtain federal habeas review of his procedurally defaulted claims, Petitioner must show his PCR Counsel was ineffective or absent, and “must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim[s] [are] substantial”-that is, that the claims have “some merit.” Martinez, 566 U.S. at 14.

2. Grounds Eight, Nine, and Ten

Petitioner's Grounds Eight, Nine, and Ten read:

GROUND EIGHT: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to object and ensure that the facts with regard to the proximity to half-mile of school/park/playground were cited on and for the record before the sentencing judge. The solicitor did not cite any facts with regard to the proximity charge and neither did the judge nor Plea Counsel seek and ensure that the facts were cited on and for the record. Had the facts been given, Petitioner would have then been afforded opportunity to show that the facts did not satisfy the elements which would have allowed the proximity charge to stand. Also, the sentencing judge would have then also realized that the facts did not present the elements which would satisfy the charge. This charge would not have stood if properly challenged by Plea Counsel. Petitioner should not have been encouraged to plead guilty to this charge. Plea Counsel was ineffective for failing to investigate and be competent of the law in this regard.

GROUND NINE: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to realize that the crimes consisted of two transactions rather than three as the Petitioner was charged. Plea counsel failed to view the video and realize this. Plea Counsel was ineffective by having Petitioner to enter a plea of guilty to three drug transactions rather than the two. This charge would not have stood if properly challenged by Plea Counsel. Petitioner should not have been encouraged to plead guilty to this charge. Plea Counsel was ineffective for failing to investigate and be competent of the law in this regard.

GROUND TEN: Ineffective assistance of counsel in violation of Sixth Amendment of the United States Constitution.

SUPPORTING FACTS: Plea Counsel failed to realize that the charges were based off of transactions which were in temporal proximity to one another and as a result of one agreement. The transactions were the result of one initial agreement. There was no second and separate agreement between the transactions. There was a prior agreement that both transactions would occur. The second transaction was a result of the original impulse and did not occur as a result of a new bargain or agreement. The second transaction was dependent on the first transaction. There was one overall agreement which had been established at genesis. The transactions were temporal in nature. Also, the solicitor was without any proper prior convictions it could use as enhancers to Petitioner's current charges.

ECF No. 1 at 18-22.

Upon review, Grounds Eight, Nine, and Ten were not adjudicated on the merits in state court. The Court observes that these Ground were neither raised in Petitioner's PCR Application, see ECF No. 25-1 at 28-38, nor during the PCR hearing, see ECF No. 25-1 at 50118. Moreover, these issues were not ruled on by the PCR Judge in the order of dismissal, see ECF No. 25-1 at 176-90, or in the order denying reconsideration under Rule 59(e), SCRCP, see ECF No. 25-1 at 211. Nor were they raised in the petition for a writ of certiorari. See ECF No. 25-3 at 3. Therefore, these Grounds are procedurally barred from federal habeas review. See Barton v. Lewis, No. 9:18-CV-748-RBH, 2019 WL 1416887, at *8 (D.S.C. Mar. 29, 2019) (holding that claims not raised in Petitioner's initial PCR proceedings were procedurally barred), appeal dismissed, 819 Fed.Appx. 183 (4th Cir. 2020); Plyler v. State, 424 S.E.2d 477, 478 (S.C. 1992) (holding that an issue that was neither raised at the PCR hearing nor ruled upon by the PCR court is procedurally barred), overruled on other grounds by State v. Burdette, 832 S.E.2d 575 (S.C. 2019); see also Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)).

Moreover, Petitioner has not shown sufficient cause and actual prejudice which would otherwise allow this Court to consider this issue.⁹ See Coleman, 501 U.S. 722, 750 (1991) (“[F]ederal habeas review of the claims is barred unless the prisoner 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 fundamental miscarriage of justice.”); see also Shinn, 142 S.Ct. at 1730 (“Respondents do not dispute, and therefore concede, that their habeas petitions fail on the state-court record alone.”). Therefore, the Court recommends that Respondent's Motion be granted as to Grounds Eight, Nine, and Ten in the Petition. See 28 U.S.C. § 2254(b); see also Cudd v. Ozmint, C. A. No. 0:08-2421-RBH, 2009 WL 3157305, at *3 (D.S.C. Sept. 25, 2009) (holding that an issue not considered by the PCR court was procedurally barred); see also White v. Burtt, C. A. No. 606-0906-TLW-WMC, 2007 WL 709001, at *8 (D.S.C. Mar. 5, 2007) (holding that an issue must be raised to and ruled on by the PCR court in order to be preserved for review (citing Pruitt v. State, 423 S.E.2d 127, 127-28 (S.C. 1992))).

9 Other than summarily invoking Martinez in his Reply, Petitioner has not shown that his PCR Counsel was ineffective, nor has he shown that the underlying ineffective-assistance-of-Trial-Counsel claims in Grounds Eight, Nine, and Ten have “some merit.” See ECF No. 41 at 21.

3. Grounds Fifteen and Seventeen

Petitioner's Grounds Fifteen and Seventeen read:

GROUND FIFTEEN: Due Process Violation - Denial of Right to be Heard.

SUPPORTING FACTS: Failure to address argument against precedence: I raised an argument against precedence to the South Carolina Court of Appeals. Specifically, I sought to argue against the court's precedence which it set per its ruling the case of State v. Wakefield, 323 S.C. 189, 473 S.E.2d 831 (1996) with regard to South Carolina Code Ann Section 44-53-445 (the proximity statute).

ECF No. 1 at 30-31.

GROUND SEVENTEEN: Due Process Violation - Reopening the PostConviction Record and Frustration of Petitioner's Prior Plea and Terms of the Plea Agreement.

SUPPORTING FACTS: Petitioner's Due Process rights were treaded upon as the Post-Conviction Relief Judge in this case allowed the PCR Record to be reopened after the PCR proceeding had been held, all testimony had been given and received. Plea Counsel had already testified and Plea Counsel did not provide any excuse or reason as to why he failed to challenge the solicitor's erroneously using a prior marijuana conviction to enhance Petitioner's current charges. The PCR Court and its actions frustrated Petitioner's 2004 plea agreement and its agreement terms. This did violate the substantive and procedural due process rights of the Petitioner and has led to a mass of litigation with regard to Petitioner's 2004 plea agreement.

ECF No. 1 at 34-35.

Both Grounds assert issues with the state PCR process. Specifically, Petitioner attempted to raise Ground Fifteen's arguments, for the first time, in his brief to the South Carolina Court of Appeals after that court had already granted certiorari on appellate issue two in his state PCR action. ECF No. 25-8 at 2; see also ECF No. 25-7; ECF No. 25-3 at 3. Petitioner now alleges the South Carolina Court of Appeals violated his due process because it did not consider his argument against precedent. As to Ground Seventeen, Petitioner alleges the PCR Judge erred by allowing the State to re-open the record and enter additional documents regarding Petitioner's prior criminal record. Petitioner raised this issue in his petition for a writ of certiorari. See ECF No. 25-3 at 3 (appellate issues four and five). However, certiorari was denied as to this issue. ECF No. 25-7.

Petitioner's allegations concerning errors committed by the PCR Judge or the South Carolina Court of Appeals are not cognizable on federal habeas review because they do not challenge Petitioner's conviction or sentence and, instead, concern South Carolina's PCR procedure. See 28 U.S.C. § 2254(a) (noting a petitioner may obtain relief from a state court judgment “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States”); Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008) (holding that there is “no federal constitutional right to post-conviction proceedings in state court” and, thus, “even where there is some error in state post-conviction proceedings, a petitioner is 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”). The Fourth Circuit has held that alleged infirmities in a state PCR action are not matters that may be addressed in federal habeas actions. Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (“[C]laims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief.”).

Because neither Ground asserts a violation of the Constitution, laws, or treaties of the United States, it is not cognizable for federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (emphasizing that “it is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions,” but rather habeas review is “limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States”). Whether the PCR Judge erred in re-opening the record or whether the South Carolina Court of Appeals erred in declining to hear Petitioner's argument against state precedent are matters of state law and are of no concern in a federal habeas petition. See id.; Lawrence, 517 F.3d at 717; Humphries v. Ozmint, 397 F.3d 206, 226 (4th Cir. 2005) (noting Petitioner was “raising an issue of state law, which is not cognizable on federal habeas review”). Accordingly, these Grounds should be dismissed.

4. Ground Sixteen

Petitioner's Ground Sixteen reads:

GROUND SIXTEEN: South Carolina Code Ann. Section 44-53-470 is Unconstitutionally Void for Vagueness.

SUPPORTING FACTS: South Carolina's enhancement sentence for drug offenders - South Carolina Code Ann. § 44-53-470 is unconstitutionally both facially and as applied to Petitioner. The statute is void-for-vagueness as it fails to clearly inform an offender of the consequences for his actions. The Petitioner was not afforded the benefits of the Rule of Lenity which mandates that any ambiguity which exists within a statute is to be resolved in Petitioner's favor.

ECF No. 1 at 32-33.

Petitioner's Ground Sixteen is a direct appeal claim challenging a South Carolina statute as void for vagueness. This Ground was not raised at the guilty plea or on direct appeal; indeed, there was no direct appeal. Moreover, Petitioner did not attempt to raise this ground during any of his PCR proceedings. Because this Court's role is “limited to reviewing state-court judgments, federal review is inappropriate if a prisoner failed to raise his claim and have it reviewed by a state court.” Kornahrens, 66 F.3d at 1362. As a result, Ground Sixteen is procedurally barred because it was not raised on direct appeal or in the state PCR appeal. See id. at 1361-62 (“Generally under South Carolina law, direct appeal is the only avenue of relief for trial related errors of a nonconstitutional dimension. Post-conviction relief is limited to claims of ineffective assistance of counsel and other errors of a constitutional dimension. Therefore, if a defendant fails to raise a trial related error on direct appeal, he has defaulted the claim.” (internal citation omitted)); Smith v. State of S.C., 882 F.2d 895, 897 (4th Cir. 1989) (“On direct appeal, Smith did not challenge South Carolina's criminal sexual conduct statute as unconstitutionally vague. Thus, under South Carolina law, he is barred from raising the claim in a post-conviction proceeding.”); Neumon v. Cartledge, No. 8:14-CV-2556-RMG, 2015 WL 4607732, at *10 (D.S.C. July 31, 2015) (“Petitioner raised this issue in his pro se PCR application; however, he failed to raise it on direct appeal or on appeal from the denial of PCR. Therefore, this ground was not fairly presented to the Supreme Court of South Carolina; thus, this claim is procedurally barred from federal habeas review[.]”).

Moreover, Petitioner has not shown, much less argued, sufficient cause and actual prejudice which would otherwise allow this Court to consider this issue. See Coleman, 501 U.S. 722, 750 (1991) (“[F]ederal habeas review of the claims is barred unless the prisoner 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 fundamental miscarriage of justice.”); see also Shinn, 142 S.Ct. at 1730 (“Respondents do not dispute, and therefore concede, that their habeas petitions fail on the state-court record alone.”). Therefore, the Court recommends that Respondent's Motion be granted as to Ground Sixteen in the Petition. See 28 U.S.C. § 2254(b); see also Cudd, C. A. No. 0:08-2421-RBH, 2009 WL 3157305, at *3 (holding that an issue not considered by the PCR court was procedurally barred); see also White, C. A. No. 606-0906-TLW-WMC, 2007 WL 709001, at *8 (holding that an issue must be raised to and ruled on by the PCR court in order to be preserved for review (citing Pruitt, 423 S.E.2d at 127-28)).

B. Preserved Grounds

Petitioner's preserved grounds allege ineffective assistance of Plea Counsel. The United States Supreme Court has said that a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984).

As to the first prong, a court's evaluation of counsel's performance under this standard must be “highly deferential,” to not “second-guess” the performance. Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).

To establish the second prong of Strickland, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” has been defined as “a probability sufficient to undermine confidence in the outcome.” Id.

While Strickland itself is a deferential standard, when both § 2254(d) and Strickland apply, review is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). “Thus, [t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Valentino, 972 F.3d at 580 (citation and internal quotation marks omitted). Indeed, when § 2254(d) applies, the question becomes “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. (citation and internal quotation marks omitted).

The two-part test enunciated in Strickland applies to challenges to guilty pleas based on ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). “[I]n order to satisfy the ‘prejudice' requirement [set forth in Strickland ], the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.

As noted above, the seventeen Grounds raised in the habeas petition mention the same or similar topics, and there is considerable factual overlap between the Grounds raised. Because Petitioner only raised five appellate issues in his petition for a writ of certiorari in the state PCR appeal, the Grounds in his habeas petition must align with those five appellate issues, otherwise they are (as already found above) procedurally barred. Construing the federal habeas petition liberally, Grounds One, Two, Three, Four, Five, Six, Seven, Eight, Twelve, and Thirteen are properly before this Court and are considered on the merits below.

1. Grounds One, Two, Three, Four, Seven, Eight, and Twelve

Grounds One, Two, Three, Four, Seven, Eight, and Twelve all deal with the half-mile proximity charges on which Petitioner received concurrent 10-year sentences to his other 15-year sentences. These Grounds-which raise a claim of failure to properly advise Petitioner regarding the proximity charges-correspond to appellate issue two raised in the petition for a writ of certiorari.¹⁰ See ECF No. 25-3 at 3.

10 The Court recommends Ground Eight be dismissed because it is procedurally barred. Ground Eight specifically maintains Plea Counsel failed to object and ensure the facts regarding the proximity to half-mile of a school/park/playground were cited to and/or put on the record before the sentencing judge. Thus, Ground Eight's ineffective assistance of counsel claim is based on a failure of Plea Counsel to object and/or to “seek and ensure that the facts were cited on and for the record.” ECF No. 1 at 18. This is a separate and distinct claim from a failure to adequately advise Petitioner. While Petitioner raised a failure to adequately advise as a grounds for relief (appellate issue two), he did not raise a failure to object and/or a failure to ensure certain facts were put on the record. See ECF No. 25-3 at 3. Nevertheless, to the extent Ground Eight falls under the umbrella of appellate issue two, it is considered on the merits here.

At the PCR hearing, Plea Counsel and Petitioner testified as to this issue. The PCR Judge accurately summarized Petitioner's testimony on this issue as follows:

[Petitioner] testified that he pled guilty to possession with intent to distribute within a half-mile of a park or school, but he later found out that the park he was near was a church playground, not a public park, and this charge was improper. He stated that he did not mention the fact that it was a church playground to Plea Counsel.

ECF No. 25-1 at 179-80.

The PCR Judge accurately summarized Plea Counsel's testimony on this issue as follows:

Plea Counsel testified that, as part of his investigation, he went to the church playground in question and verified that it was within a half-mile of where Applicant was caught selling drugs. He testified that he had mitigation records to present, but they did not need to present them at the guilty plea because Applicant pled to a negotiated sentence.

ECF No. 25-1 at 181.

After considering the testimony, judging the credibility of the witnesses, and reviewing the materials presented, the PCR Judge found that Petitioner failed to demonstrate Plea Counsel was ineffective in any regard. As to Plea Counsel allegedly failing to investigate, the PCR Judge found, in pertinent part:

Applicant alleges that Plea Counsel was ineffective for failing to investigate his case and request a continuance before his guilty plea. This allegation is meritless. Plea Counsel credibly testified that he investigated this case as well as Applicant's criminal history. He stated that he drove to the church playground in question to verify that it was within a half-mile of the location Applicant sold the drugs. He read the SLED report and verified its information. Based on the strength of the State's evidence against Applicant, Plea Counsel strategically negotiated plea deals with the State and was able to obtain a negotiated sentence, Plea Counsel testified

that there was no reason to request a continuance before the guilty plea. Based on this testimony, this Court finds that Plea Counsel thoroughly investigated Applicant's case and was not ineffective in this regard. Therefore, this allegation is denied and dismissed with prejudice.

ECF No. 25-1 at 182.

With regard to Plea Counsel allegedly failing to challenge the indictments on the basis that the proximity to public park requirement in S.C. Code Ann. § 44-53-445 was not satisfied, the PCR Judge found, in pertinent part:

This Court finds that Plea Counsel was not ineffective for failing to challenge the indictments in this case. Applicant was properly indicted and put on notice of his charges. Applicant waived presentment to the grand jury on all of his charges. Plea Counsel credibly testified that he saw no basis for challenging the indictments on the grounds that the facts didn't support the charge on the indicted offense, and this Court agrees.

Applicant alleges that the indictments for Distribution of Methamphetamine within a Half-Mile of a Park or School (2015-GS-11-0462 and -0464) were improper because the park within a half-mile of the sale was a private church playground that does not fall under the statute, SC Code Ann. § 44-53-445 (2010). However, this Court finds that this challenge to the classification of the park is a factual argument against the State's evidence and not a challenge to the sufficiency of the indictment. Any factual challenge to this offense, meaning whether the church playground was public or private, was waived by Applicant when he chose to plead guilty.

ECF No. 25-1 at 184.

The factual argument that the church playground is not a public park is not a defect in the indictment, but rather it is a challenge to the sufficiency of the State's evidence that Applicant and Plea Counsel could have raised if Applicant had chosen to go to trial. This Court finds that Plea Counsel was not deficient for failing to challenge this as an attack on the sufficiency of the indictments.

Furthermore, Applicant can prove no prejudice because he knowingly and intelligently pled guilty to this offense and received a ten year sentence for these charges, which he is serving concurrently to his fifteen year sentence for the other offenses. Even if these indictments had been dismissed, Applicant would still be serving a fifteen year sentence, so there can be no prejudice. Because Applicant has failed to meet his burden of proving both prongs of the Strickland test, this allegation is denied and dismissed with prejudice.

ECF No. 25-1 at 185.

The South Carolina Court of Appeals granted certiorari to consider this issue, and found, in pertinent part:

Jeter has not met the burden of proving plea counsel's performance fell below an objective standard of reasonableness. The plea colloquy shows that Jeter waived his right to presentment of the indictment to the grand jury. The grand jury, as the plea court explained to Jeter, could have dismissed the charges if there was not sufficient evidence to support them. As the PCR court found, the question of whether the proximity charges conform to the applicable statute relates to the sufficiency of the evidence that the State would have presented at trial and does not relate to a defect in the indictment.

“To find a guilty plea is voluntarily and knowingly entered into, the record must establish the defendant had a full understanding of the consequences of his plea and the charges against him.” Dalton v. State, 376 S.C. 130, 138, 654 S.E.2d 870, 874 (Ct. App. 2007). “A defendant's knowing and voluntary waiver of the constitutional rights which accompany a guilty plea may be accomplished by colloquy between the Court and the defendant, between the Court and defendant's counsel, or both.” Id. (quoting Pittman v. State, 337 S.C. 597, 600, 524 S.E.2d 623, 625 (1999)). Here, the plea colloquy shows that Jeter's plea was freely and voluntarily made. The plea court thoroughly listed the applicable concerns and issues associated with a guilty plea, and Jeter acknowledged his waiver of those rights. Plea counsel testified he believed Jeter was properly indicted. He testified his strategy was “global resolution” because Jeter was facing LWOP if he proceeded to trial. Plea counsel employed a valid strategy of avoiding the possibility of an LWOP sentence by negotiating fifteen-and ten-year concurrent sentences.

Further, Jeter has not shown that but for counsel's errors, he would not have pled guilty and would have instead gone to trial. “[A] petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010). Even if Jeter succeeded in gaining an acquittal on the proximity charges, he still faced a mandatory minimum of twenty-five years and a possible LWOP sentence. Plea counsel testified that Jeter “was wanting to resolve the cases in full.” The overriding concern was gaining a reduction of Jeter's charges to a second offense, from a third offense, thereby avoiding an LWOP sentence. See Rollison v. State, 346 S.C. 506, 511-12, 552 S.E.2d 290, 293 (2001) (“[Petitioner] received the benefit of the agreement for which he bargained and cannot now complain.”).

Jeter argues that although the PCR court was correct that his sentence would not be reduced even if his PCR application is successful, he still suffers prejudice because the proximity convictions may be used to enhance subsequent future charges. We disagree with this speculative argument. The plea court ensured Jeter understood that because he was pleading guilty to serious offenses, he would be subject to LWOP upon the third serious offense. Therefore, Jeter was aware of the consequences of the plea at the time it was entered. Also, Jeter's other charges would still be used for the future enhancement, so the relief he seeks will serve him no benefit. All of Jeter's charges were adjudicated in the same plea, so they will only count for one total strike. See also Glover v. State, 318 S.C. 496, 498-99, 458 S.E.2d 538, 540 (1995) (observing mere speculation and conjecture by the applicant is insufficient to establish the allegation that counsel's deficient performance resulted in prejudice). Therefore, Jeter has not shown that he was prejudiced by plea counsel's performance.

Jeter v. State, No. 2017-001777, 2023 WL 2015703, at *3 (S.C. Ct. App. Feb. 15, 2023) (footnote omitted).

Upon review, the undersigned finds that the state court did not apply Strickland unreasonably or base its adjudication on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable).

As to Plea Counsel allegedly failing to investigate, the PCR Judge found that Plea Counsel credibly testified that he investigated the case, which included Petitioner's criminal history, driving to the church playground to verify it was within a half-mile of the location Petitioner sold the drugs, and reading the SLED report and verifying its information. Such a factual finding based on credibility is presumed to be correct, and Petitioner has the burden of rebutting that presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Petitioner has not done so here. Thus, given the factual finding that Plea Counsel thoroughly investigated Petitioner's case, the PCR Judge's conclusion that PCR Counsel “was not ineffective in this regard” was not unreasonable. See McWee v. Weldon, 283 F.3d 179, 186 (4th Cir. 2002) (affording deference to a state court's credibility determination on testimony establishing underlying facts); Knowles v. Bazzle, No. CA 206-CV-1424-GRA-R, 2007 WL 1594412, at *6 (D.S.C. June 1, 2007) (noting “a determination of a factual issue made by a state court shall be presumed correct” and a “credibility determination by the state court is also afforded deference” (citations omitted)).

Regarding the alleged insufficiency of the indictment, the Court of Appeals agreed with the PCR Judge that Petitioner failed to show deficiency or prejudice under Strickland. As an initial matter, both the PCR Judge and the Court of Appeals found that the “question of whether the proximity charges conform to the applicable statute relates to the sufficiency of the evidence that the State would have presented at trial and does not relate to a defect in the indictment.” Jeter, No. 2017-001777, 2023 WL 2015703, at *3. Thus, as a general matter, Petitioner waived any issues that challenged the sufficiency of the State's evidence once he pled guilty, and both courts reasonably found Plea Counsel was not deficient for failing to challenge this as an attack on the sufficiency of the indictments. See State v. Rice, 737 S.E.2d 485, 485 (S.C. 2013) (“[I]n South Carolina, a guilty plea constitutes a waiver of nonjurisdictional defects and claims of violations of constitutional rights.”).

As to deficiency, the Court of Appeals highlighted Plea Counsel's testimony indicating (1) he believed Petitioner was properly indicted and (2) his strategy was “global resolution” because Petitioner was facing LWOP if he went to trial. The Court of Appeals found that this was a valid strategy to avoid the possibility of an LWOP sentence by negotiating fifteen and ten-year concurrent sentences. This Court agrees that, given Plea Counsel's investigation of the facts as described above by the PCR Judge, this was an objectively reasonable strategy. See Rose v. Lee, 252 F.3d 676, 693 (4th Cir. 2001) (“When counsel make a reasonable strategic choice based upon an investigation of the facts, this Court must defer to that strategic choice.”); Harrington, 562 U.S. at 110 (“Strickland [] calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.”). Consequently, the undersigned finds that the Court of Appeals did not apply Strickland unreasonably or base its adjudication on an unreasonable determination of the facts in finding Plea Counsel not deficient. See 28 U.S.C. § 2254(d); see also Geter v. McCall, No. C.A. 809-1589-PMD, 2010 WL 2640221, at *7 (D.S.C. June 29, 2010) (“In light of the strong evidence against Petitioner such as the police statement and the victim's photo identification of Petitioner, counsel was warranted in the use of her strategy to concede guilt on the lesser charges, of which Petitioner likely would have been convicted anyway, in an attempt to win a verdict of ‘not guilty' on the more serious charge of burglary.”); Elders v. Stevenson, No. 8:14-CV-04916-RBH, 2016 WL 1182615, at *7 (D.S.C. Mar. 28, 2016) (finding trial counsel's strategy of advising Petitioner to plead guilty to some charges but proceed to trial on others was objectively reasonable under Strickland).

As to prejudice, the Court of Appeals reasonably concluded that Petitioner had not shown a reasonable probability that, but for Plea Counsel's errors, Petitioner would not have pled guilty and would have insisted on going to trial. See Hill, 474 U.S. at 59. As both the PCR Judge and the Court of Appeals found, Petitioner knowingly and voluntarily entered into the negotiated plea agreement, and Petitioner acknowledged any waiver of rights associated with pleading guilty. See id. at 56 (stating that when “a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases” (internal quotation marks omitted)); Blackledge v. Allison, 431 U.S. 63, 73 (1977) (“[T]he representations of the defendant . . . at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.”). Further, as the Court of Appeals noted, even if Petitioner succeeded in gaining an acquittal on the proximity charges, he still faced a mandatory minimum of twenty-five years and a possible LWOP sentence. The Court of Appeals rejected Petitioner's apparent assertion that he would have wanted to proceed to trial and face a potential life sentence all because of an alleged defect in the proximity charges conforming to the applicable statute. See Jeter, No. 2017-001777, 2023 WL 2015703, at *3 (noting a “petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances” (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010))).

Given that Petitioner was still facing a potential life sentence, the undersigned finds that the Court of Appeals' determination with regard to prejudice was not unreasonable. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580; Hill, 474 U.S. at 59 (noting Petitioner “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial”). Therefore, the undersigned recommends that Respondent's Motion be granted as to these Grounds.

2. Grounds Five, Six, and Eleven

Grounds Five, Six, and Eleven all deal with Plea Counsel's alleged failure to investigate Petitioner's criminal history and how his prior convictions might affect plea negotiations and/or enhancement of his sentences. These Grounds correspond to appellate issue three raised in the petition for a writ of certiorari.¹¹ See ECF No. 25-3 at 3. Because the Court of Appeals denied certiorari on appellate issue three, the PCR Judge was the last to address the merits of these claims.

11 The Court recommends Ground Eleven be dismissed because it is procedurally barred. Ground Eleven specifically maintains Plea Counsel “failed to realize” Petitioner was not eligible to receive an LWOP sentence. ECF No. 1 at 23. However, construing the Petition liberally, this Ground arguably falls under appellate issue three. See ECF No. 25-3 at 3. Consequently, to the extent Ground Eleven falls under the umbrella of appellate issue three, it is considered on the merits here.

At the PCR hearing, Petitioner and Plea Counsel testified on this issue. After considering the testimony, judging the credibility of the witnesses, and reviewing the materials presented, the PCR Judge found that Petitioner failed to demonstrate Plea Counsel was ineffective in any regard. As already noted above, the PCR Judge found that Plea Counsel credibly testified that “he investigated this case as well as [Petitioner's] criminal history.” ECF No. 25-1 at 182. As to any improper enhancements, the PCR Judge found:

Applicant alleges Plea Counsel was ineffective for failing to challenge the improper enhancement of his charges. This allegation is meritless.

Applicant was charged with Distribution of Methamphetamine, third offense, and Trafficking Ice, Crank, or Crack, ten grams or more but less than 28 grams, third offense. After plea negotiations with the State, Applicant pled guilty to distribution, second offense, and trafficking, second offense; the State allowed him to plea to a lower offense in exchange for his guilty plea. Applicant now alleges in his PCR action that he never had the proper prior convictions to allow the State to enhance his charge to third offense. He argued to the Court that his prior trafficking conviction was just outside of the ten year scope of offenses allowed and should not have been used to enhance his charge. He further argued that the other prior conviction used for enhancement purposes was a marijuana conviction, which under the law cannot be used for enhancement purposes in this case.

At the evidentiary hearing, Applicant testified that he did not tell Plea Counsel about the problems with his enhancement because he assumed they were correct. Plea Counsel testified that he discussed Applicant's prior convictions with him and the effect that they would have on his sentencing if convicted at trial. He stated that Applicant was subject to a potential sentence of Life Without Parole if convicted based on his prior record. Plea Counsel testified that his strategy was to negotiate a plea deal with the State to allow Applicant to plea to a lesser sentence, because he believed that the State could reasonably convict Applicant on all three separate drug buys, which would definitely be three strikes against him, resulting in a life sentence. He stated that there was video evidence of Applicant selling drugs, and the evidence was strong enough that Applicant likely would not prevail at trial. Because of this, Plea Counsel believed a plea deal was in Applicant's best interest, regardless of what his prior convictions were.

Based on Plea Counsel's credible testimony of the strategy behind his negotiations, this Court finds that Plea Counsel was not deficient in failing to challenge Applicant's charges.

Most importantly, this Court further finds that Applicant was not prejudiced by Plea Counsel's failure to challenge the charges against him because Applicant did have the proper prior convictions to enhance his charge to a second offense. Applicant pled guilty on October 12, 2004, to two separate counts of possession of crack. There is no question that these were separate and distinct convictions because the drug buys were on two different dates several months apart, and they resulted in two convictions with two concurrent sentences and sentencing sheets.

South Carolina law provides that an offense under the relevant statute is considered a second or subsequent offense if “the offender has at any time been convicted of a second or subsequent violation of a controlled substance offense provision” other than marijuana. S.C. Code Ann. § 44-53 -470(A) (4) (emphasis added). Neither 2004 conviction was a marijuana conviction. Therefore, one of the 2004 convictions is a “second or subsequent” conviction under the law, and can be properly used to enhance Applicant's 2015 charges, even if they were more than ten years before the current guilty plea.

Although it appears from the guilty plea transcript that the Solicitor used the wrong charge to enhance the conviction (See Tr. 21:11-12, where the Solicitor cites a 2013 possession of a controlled substance conviction that was actually marijuana and unable to be used to enhance under the statute), there is no prejudice because Applicant did have prior convictions to properly enhance his charges to at least a second offense. Applicant pled guilty to trafficking, second offense, and thus his conviction was proper and should not be overturned.

Because Applicant has failed to meet his burden of proving either prong of the Strickland test, this allegation is denied and dismissed with prejudice.

ECF No. 25-1 at 186-88.

Upon review, the undersigned finds that the state court did not apply Strickland unreasonably or base its adjudication on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable).

As an initial matter, regarding deficient performance, the PCR Judge found that Plea Counsel credibly testified that “he investigated this case as well as [Petitioner's] criminal history.” ECF No. 25-1 at 182. The PCR Judge further found that Plea Counsel discussed Petitioner's prior convictions with him and the effect they would have on his sentencing if convicted at trial. This factual determination based on Plea Counsel's testimony is presumed correct, and Petitioner has not rebutted this finding with clear and convincing evidence. See McWee, 283 F.3d at 186 (“This determination of fact made by the state court is presumed correct, see 28 U.S.C. § 2254(e)(1), and McWee has not attempted to rebut this presumption with clear and convincing evidence.”).

In light of Petitioner's criminal record, Plea Counsel aimed to secure a plea agreement with the State, allowing Petitioner to plead to a reduced sentence. Plea Counsel's strategy stemmed from his belief that the State could successfully convict Petitioner for all three separate drug purchases-which would result in a life sentence under the three-strikes rule-since the State had strong evidence for all three separate drug transactions. Indeed, Plea Counsel stated there was video evidence of Petitioner selling drugs on each date, and the evidence was strong enough such that Petitioner likely would not prevail at trial. Because of this, Plea Counsel believed a plea deal was in Petitioner's best interest, regardless of what his prior convictions were. Based on Plea Counsel's credible testimony of the strategy behind his negotiations, the PCR Judge found-and this Court agrees-Plea Counsel was not deficient in failing to challenge Petitioner's charges. See Rose, 252 F.3d at 693 (“When counsel make a reasonable strategic choice based upon an investigation of the facts, this Court must defer to that strategic choice.”); Harrington, 562 U.S. at 110 (“Strickland [] calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.”).

As to prejudice, the PCR Judge concluded that Petitioner did not suffer any prejudice because Petitioner did, in fact, have the proper prior convictions to enhance his charge to a 2nd offense. The PCR Judge considered the South Carolina statute at issue and found that Petitioner's prior convictions satisfied the requirements under state law. This Court is bound by the PCR Judge's interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state law . . . binds a federal court sitting in habeas corpus.”); Richardson v. Branker, 668 F.3d 128, 141 (4th Cir. 2012) (noting the Fourth Circuit has held it is “beyond the mandate of federal habeas courts [ ] to correct the interpretation by state courts of a state's own laws” (citation omitted)).

Consequently, because Petitioner's prior convictions could serve as enhancers (as found by the PCR Judge under state law), the PCR Judge's finding as to prejudice under Strickland was not unreasonable. See, e.g., Goins v. Warden, Perry Corr. Inst., 576 Fed.Appx. 167, 173 (4th Cir. 2014) (finding, in light of being bound by the South Carolina Court of Appeals' interpretation of South Carolina evidentiary rules, “we will not disturb the South Carolina Court of Appeals' conclusion that Appellant was not prejudiced within the meaning of Strickland when his trial counsel failed to make an attempt to introduce inadmissible evidence”); Hill v. Williams, No. CV 5:22-4628-HMH-KDW, 2024 WL 208347, at *4 (D.S.C. Jan. 19, 2024) (finding a PCR Judge's decision was not an unreasonable application of clearly established federal law where the PCR Judge interpreted a South Carolina statute for sentence enhancing purposes and the federal habeas court was “bound by the PCR court's interpretation of South Carolina law”). The undersigned therefore recommends granting Respondent's Motion as to these Grounds.¹²

12 Although the guilty plea transcript suggested an incorrect charge enhancement, where the Solicitor incorrectly cited a 2013 possession of a controlled substance conviction (which was related to marijuana and ineligible for enhancement under the statute), the PCR Judge's prejudice finding was not based on an unreasonable determination of facts. Rather, the PCR Judge's decision was based on his finding that Petitioner had other prior convictions that could properly enhance his charges to at least a second offense under state law (which this Court is bound by). Thus, despite the apparent error in the guilty plea transcript, it ultimately does not change the outcome.

3. Ground Thirteen

Ground Thirteen alleges Plea Counsel was ineffective for failing to have Petitioner's mental competency examined prior to Petitioner pleading guilty. This Ground corresponds to appellate issue one raised in the petition for a writ of certiorari. ECF No. 25-3 at 3. Because the Court of Appeals denied certiorari on appellate issue one, the PCR Judge was the last to address the merits of this claim.

Petitioner and Plea Counsel testified on this issue at the PCR hearing. The PCR Judge accurately summarized Plea Counsel's testimony on this topic as follows:

Plea Counsel testified that there was nothing that made him think that Applicant's mental health was an issue. He stated that he never thought that Applicant did not understand what was going on during his proceedings, and there was no basis to seek a hearing over his mental competency.

ECF No. 25-1 at 180-81.

After considering the testimony, judging the credibility of the witnesses, and reviewing the materials presented, the PCR Judge found, in pertinent part:

Applicant alleges that he was denied due process of law. Applicant's allegation claims infringement of his rights under the Fourteenth Amendment to the United States Constitution based on Plea Counsel's failure to request a mental competency hearing. This allegation is meritless.

The testimony presented at the evidentiary hearing and the record of the guilty plea indicate that Plea Counsel was not deficient in choosing not to challenge Applicant's mental competency. Plea Counsel credibly testified that he believed Applicant always understood what was going on and show no indications of mental issues. He testified that he saw no reason to request an evaluation or challenge his guilty plea based on a lack of competency. This Court finds that Plea Counsel was not deficient in this regard.

Secondly, Applicant has failed to meet his burden of proving prejudice because he has not proven that he actually lack[ed] mental competency. The South Carolina Supreme Court “has repeatedly held a PCR applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to establish prejudice from the witness' failure to testify at trial.” Bannister v. State, 333 S.C. 298, 303, 509 S.E.2d 807, 809 (1998).

“The applicant's mere speculation what the witnesses' testimony would have been cannot, by itself, satisfy the applicant's burden of showing prejudice.” Glover v. State, 318 S.C. 496, 498-99, 458 S.E.2d 538, 540 (1995). Applicant did not present any testimony from a mental evaluator or introduce[] any mental health records or evaluation reports proving that he was incompetent. Therefore, as a matter of law, he cannot prove prejudice.

Applicant has failed to meet his burden of proving any due process violation, and this allegation is denied and dismissed with prejudice.

ECF No. 25-1 at 188-89

Upon review of the PCR Judge's consideration of this issue, the undersigned finds that the PCR Judge did not apply federal law unreasonably or base his adjudication on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

As noted above, the PCR Judge found that Plea Counsel credibly testified there was no indication that Petitioner suffered from any mental issues that would have prevented Petitioner from understanding the proceedings. The PCR Judge's factual finding on credibility is entitled to deference, and Petitioner has not presented any evidence that puts Plea Counsel's testimony into doubt. See 28 U.S.C. § 2254(e)(1); Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (noting “federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them” (citation and quotation marks omitted)). Accordingly, the undersigned finds no error in the PCR Judge's deficiency analysis. See McWee, 283 F.3d at 186 (affording deference to a state court's credibility determination on testimony establishing underlying facts); Jeter v. State, 417 S.E.2d 594, 596 (S.C. 1992) (finding trial counsel not deficient for failing to request mental examination of defendant-which might have formed the basis of an insanity defense or determination that defendant was not competent to stand trial-where trial counsel reasonably relied on his own perceptions that defendant was not mentally deficient).

As to prejudice, the undersigned likewise finds no error in the PCR Judge's analysis. As noted by the PCR Judge, Petitioner did not provide any evidence of his alleged incompetency, such as testimony from a mental health evaluator, mental health records, or evaluation reports showing he was incompetent. Consequently, Petitioner failed to show he was prejudiced by Plea Counsel's alleged failure to investigate his mental health status. See Jeter, 417 S.E.2d at 596 (“In a PCR action, the petitioner bears the burden of proof and is required to show by a preponderance of the evidence he was incompetent at the time of his plea.”); Palacio v. State, 511 S.E.2d 62, 66 (S.C. 1999) (finding that where contents of challenged documents were not presented at the PCR hearing, defendant failed to present any evidence of probative value demonstrating how counsel's failure to obtain the unproduced documents in a more timely fashion prejudiced his defense); Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) (noting that “an allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced”). Consequently, the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding that Petitioner failed to show prejudice. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580. Accordingly, the undersigned recommends that Respondent's Motion be granted as to this Ground in the Petition.

IV. CONCLUSION

Petitioner's and Respondent's Motions for Leave to File Excess Pages, ECF Nos. 38 an 50, are GRANTED.

For the reasons set forth above, it is RECOMMENDED that Respondent's Motion f Summary Judgment (ECF No. 26) be GRANTED and that the Petition be DISMISSED wi prejudice. It is further ORDERED that Petitioner's remaining motions, ECF Nos. 30, 31, 37, 4 43, 44, 55, 56, are DENIED as MOOT.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).