Opinion
Civil Action No.: 6:16-3244-BHH-KFM
04-06-2017
Dervick L. Parker, #334246, Petitioner, v. Warden, McCormick Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court. Presently before the court are the respondent's return and motion for summary judgment (doc. 25), the petitioner's motion for stay and abeyance (doc. 3), and the petitioner's motion to amend (doc. 28).
Motion to Stay
On September 23, 2016, the same day that he filed his petition for habeas relief, the petitioner moved to stay and hold his habeas petition in abeyance to allow him the opportunity to return to state court to litigate his claim in Ground One (doc. 3). Specifically, the petitioner contends that trial counsel provided ineffective assistance of counsel when he failed to object to the trial court's malice instruction, which contained language that was subsequently disapproved of in State v. Belcher, 685 S.E.2d 802, 809-10 (S.C. 2009). The petitioner argues that this claim was not perfected for appeal because his PCR counsel failed to file a motion pursuant to Rule 59(e), SCRCiv.P. when the PCR court's order of dismissal did not address this issue. The respondent opposes the motion to stay as frivolous (doc. 29 at 2).
In Rhines v. Weber, 544 U.S. 269 (2005), the Court indicated that a district court has discretion to stay a mixed petition to allow a petitioner to present his unexhausted claims to the state court and then return to federal court for review of his perfected petition. The Court stated that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." 544 U.S. at 277. The Court further stated that "even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id.
Upon review, the court finds that the petitioner fails to show that a stay is warranted under Rhines. Here, all of the petitioner's claims, including the one that he now seeks to return to state court to litigate, have been exhausted for purposes of federal review as South Carolina's statute of limitations for PCR actions and its limitation of successive PCR applications prevent the petitioner from returning to state court to challenge his defaulted § 2254 claims. See, e.g., S.C. Code Ann. § 17-27-45 (establishing one-year period of limitation on filing of PCR); S.C. Code Ann. § 17-27-90 (providing that all grounds for relief available to an application under this chapter must be raised in his original, supplemental or amended application). As such, the stay option outlined in Rhines does not apply. See McClure v. Ozmint, No. 2:06-cv-1076-HMH-RSC, 2007 WL 1656227, at *25 (D.S.C. June 5, 2007) (holding that where all claims in a § 2254 petition were at least technically exhausted, Rhines does not apply and thus the stay was not warranted). The petitioner has also failed to demonstrate good cause for his failure to exhaust his claims in state court and has not shown that his claims are potentially meritorious. See Martinez v. Ryan,132 S.Ct. 1309, 1317 (2012) (finding that attorney error during appeals from initial-review collateral proceedings does not constitute good cause for failure to exhaust initial collateral review claims.)
As the petitioner has not shown good cause for his failure to exhaust and has not set forth that his claim is potentially meritorious, it is recommended that the petitioner's motion to stay be denied.
MOTION FOR SUMMARY JUDGMENT
Background
The petitioner is currently incarcerated at McCormick Correctional Institution in the South Carolina Department of Corrections ("SCDC") (doc. 1). The petitioner was indicted by the Dorchester County Grand Jury on April 21, 2008, for assault and battery with intent to kill (Indictment No. 2008-GS-18-0481) (app. 783-84). At trial, the petitioner was represented by Mark L. Archer (app. 1). The petitioner proceeded to a jury trial on April 13-16, 2009, before the Honorable Diane Goodstein, Circuit Court Judge. The petitioner was found guilty as charged, and Judge Goodstein sentenced him to a term of imprisonment of 20 years (app. 1-662, 683).
The appendix can be found at Docket Entry Numbers 24-1 through 24-5.
Underlying Case Facts
On the evening of February 28, 2008, Sgt. Shawn Gibbons, an officer with the Dorchester Sheriff's Office who worked in the Summerville Metro Narcotics Unit, was conducting surveillance at an apartment complex as part of an ongoing narcotics investigation (app. 86-87). He was alone inside an apartment, and other officers were positioned nearby (app. 90-92). At some point, Sgt. Gibbons determined that he had been compromised and alerted other officers that he was leaving the apartment (app. 92-93). As Sgt. Gibbons was attempting to exit the complex, two men yelled at him from another building (app. 94.) As he continued walking on the sidewalk, he saw the men running between the buildings in his direction and that they had guns (app. 94-96). He indicated that he saw that one of the men, who was wearing a red sweatshirt, had a small automatic weapon and that the other man wearing a camouflage hoodie sweatshirt, who he recognized through the ongoing investigation as the petitioner Derrick Lamont Parker, also had a gun. (app. 96). At that point, he drew his weapon and held it to his side (app. 99). The men approached Sgt. Gibbons as he continued walking away and began asking him what he was doing there (app. 98). Sgt. Gibbons told the men that he was visiting a friend as he continued walking (app. 97). At no time did he tell the men that he was a police officer because he didn't think that it wise to reveal his identity to the two armed men (app. 145).
After he had been questioned by the men, shots were fired, and Sgt. Gibbons took cover behind a car near a dumpster (app. 100-01). When he looked back, he saw only the man in the red shirt (app. 100). Sgt. Gibbons indicated that he believed that this individual fired the initial shots but that he was not "100 percent sure" (app.101). Thereafter, Sgt. Gibbons looked out again and, seeing no one, attempted to leave the area. While he was exiting, more shots were fired (app. 101). Sgt. Gibbons testified that he looked in the direction of the shots and saw the petitioner firing in his direction (app. 101). Then, Sgt. Gibbons felt numbness in his leg, dropped to one knee, and returned fire on the petitioner who fled (app. 101-02). Sgt. Gibbons was able to get up and leave the area, and another officer arrived at that time (app. 102). Sgt. Gibbons discovered that he had been shot in the right leg (app. 102), and was later was transported to the hospital (app. 103).
Law enforcement conducted an investigation that led to the search of an apartment in the complex where the shooting occurred and the discovery of two firearms, a .380 automatic handgun and a .38 revolver, hidden in a laundry basket (app. 304-305) Officers found that rounds were missing or had been fired from both guns (app. 306-308).
At trial, the petitioner and Quinntavious Davis ("Davis"), who at some point was identified as the man in the red shirt, gave conflicting accounts of the circumstances of the shooting (app. 252-255, 277). Davis testified for the State and was allowed to plead guilty to assault with intent to kill (app. 264-66). Davis admitted that he shot at Sgt. Gibbons because he thought that Sgt. Gibbons was going to shoot him and that he then ran away (app. 261-62; 273). Davis testified that he did not see the petitioner with a gun, but he also testified that he saw the petitioner shooting (app. 257, 266, 275, 277).
The petitioner testified that he pulled his gun out when he saw that Sgt. Gibbons had a gun and held it by his side (app. 523). The petitioner testified that he never fired his gun (app. 522). He also testified that he told Davis that Sgt. Gibbons had a gun and that Davis ran after him and fired his gun (app. 520). Both the petitioner and Davis indicated that Sgt. Gibbons did not approach them and that he did not point a gun at them (app. 254, 539). The petitioner also admitted to not being truthful with the police when he told them that another person had shot at Sgt. Gibbons (524-527).
At the close of the evidentiary phase of the trial, defense counsel moved for a directed verdict which was denied (app. 549). Judge Goodstein then instructed the jury on the applicable law and, when she failed to charge the jury on the law of self-defense, defense counsel objected to the failure to give this charge (app.642). The trial judge explained why she did not give this instruction and denied the objection (app. 643). During jury deliberations, defense counsel discovered that Davis had prior convictions not revealed prior to trial and moved for a mistrial (app. 648-655). Following arguments, Judge Goodstein denied the motion. (app. 655 ). The jury returned a verdict of guilty, and defense counsel renewed motions for a new trial, mistrial, and judgment notwithstanding the verdict (app. 662). Judge Goodstein denied the motions (app. 674).
Direct Appeal
The petitioner filed a notice of appeal on April 24, 2009 (doc. 24-6). He was represented by Deputy Chief Appellate Defender Wanda H. Carter of the South Carolina Commission on Indigent Defense Division of Appellate Defense (doc. 24-7). On May 25, 2010, with the assistance of counsel, the petitioner filed the final brief of the appellant, in which he raised the following issues:
1. The lower court erred in failing to charge the jury on the law of self-defense because there was evidence presented at trial establishing that the victim was the aggressor in the case and that appellant had no other means of avoiding the life threatening danger.(Doc. 24-7). The State filed its final brief on May 12, 2010 (doc. 24-8). The State counter-stated the issues as follows:
2. The lower court erred in denying appellant's motion for a mistrial upon learning during jury deliberations that the alleged co-perpetrator (state's witness) had a prior conviction, which could have been used against him effectively on cross-examination for the purpose of impeachment; because the omission prejudiced appellant in that had this witness been properly impeached, then the case would have rested on appellant's testimony versus the victim's testimony.
I. The trial judge did not err in failing to instruct the jury on self-defense because no testimony or evidence was presented supporting the required elements for a charge on the law of self-defense. However, the issue is likely not preserved for appellate review.
II. The trial judge properly denied Appellant's motion for mistrial following the discovery of a prior conviction of a State's witness during jury deliberations.
III. Any alleged errors in either the trial judge's refusal to charge the jury on self-defense or [in] the trial judge's denial of Appellant's motion for a mistrial were harmless in light of the overwhelming evidence of Appellant's guilt.(Doc. 24-8).
On February 16, 2011, the South Carolina Court of Appeals affirmed the petitioner's conviction and sentence. See State v. Dervick Lamont Parker, 201l-UP-060 (S.C. Ct. App., Feb. 16, 2011) (doc. 24-9). The Court of Appeals issued the remittitur on March 24, 2011 (doc. 24-10).
PCR
On December 7, 2011, the petitioner filed an application for post-conviction relief ("PCR") (2011-CP-18-2453) in which he raised the following claims (verbatim):
10.(a) Ineffective Assistance of Counsel, to wit:
Violation of 4th, 5th, 6 & 14th Constitutional Amendments, as listed below.
11.(a) Ineffective Assistance of counsel (See Attach. A, B, C)
Allegation I: (a)
Ineffective assistance of Trial Counsel
This Applicant, Dervick L. Parker, #334246, Asserts that his Sixth Amendment Right to competent Trial Counsel was grossly violated when Trial Counsel proceeded to allow Applicant to go to Trial without adequate documentation of all facts of the case, thereby depriving the Applicant [of] the opportunity of a fair Trial
Allegation I: (b)
Ineffective Assistance of Trial Counsel & violation of Fourteenth Constitutional Amendment
(App. 686-705). On April 12, 2012, the State filed its return and partial motion to dismiss (app. 706-712). Charles Brooks, III, represented the petitioner in the action.This Applicant, Dervick L. Parker, #334246, being fully informed as to the strict guidelines of the South Carolina Rule of Criminal/Civil Procedures as well as to the high integrity held of both State as well as Federal Constitutional Law and Statute, no wherein asserts that his Sixth and Fourteenth Amendment Rights have been maliciously and flagrantly violated by the Dorchester County, South Carolina Judiciary and it's Attending officers.
Allegation I (c):
Ineffective Assistance of Trial Counsel:, & Violation of Applicants Fifth and Fourteenth Constitutional Amendment Rights Collectively
This Applicant, Dervick L. Parker, # 334246, now asserts (under Ineffective Assistance of Trial Counsel) that his Fifth, Sixth, and Fourteenth U.S. Constitutional Amendment Rights were grossly violated when it was discovered during Trial and on the Legal Record that the State's two (2) most prominent witnesses (Donnell Campbell and Quinntavious Davis) were allowed by the Court to present glaringly apparent conflicting testimony against the Defendant with Defense Counsel failing to object and subsequently motioning for mistrial and the Trial Judge abused her discretion in allowing such obviously inadmissible evidence and failing to halt the illegal and highly unconstitutional proceeding herself.
On April 28, 2012, the petitioner, with the assistance of counsel, filed an amendment to the application for PCR, asserting the following amended claims (verbatim):
Applicant contends and claims of error of omission of ineffective assistance of trial counsel that he was denied due
process clause of the Fourteenth Amendment of the United State Constitution, in a cumulative effect, Applicant's trial [counsel's] representation fell below the normal objective standard of reasonableness as it was held in Strickland v Washington 104 S. ct 2055, when . . . trial counsel opened the door during cross examination concerning an alleged statement given to the police, see tr. Page 524, line 15, 16. This omission of trial counsel was unreasonable performance that prejudiced the applicant's defense clause of the Sixth Amendment and also rendered the applicant with ineffective assistance of counsel in violation of the Applicant's Sixth Amendment rights, in a cumulative effect, for failing to object to the prosecutor's incriminating lines of soliciting cross examination of the Applicant in regards to an alleged statement, see Tr. Page 526, line 1 and 2, also Tr. Page 533, line 1; Tr. Page 533 ,line 14, I5, Tr. Page 533, line 21, Tr. Page 534, line 4, 6. Trial counsel should have made a contemporaneous objection to the admission of this alleged incriminating statement and move[d] for a [suppression] hearing to challenge the voluntariness of this statement, as it was held in Jackson v Denno 84 S.ct 1784 (9) "a fair hearing in which both the underlying factual issues a voluntariness of his confession" [(sic)], also in support of State v Silver 431 S. E. 2d 251 held that a defendant need not show custody entitled to Jackson v Denno Hearing on voluntariness because of Applicant's trial counsel's failure to object to the admission of this incriminating testimonial statement and move for a Jackson v Denno suppression hearing to challenge the voluntariness of this statement rendered Ineffective assistance of trial counsel and deprived the Applicant of due process clause of the Fourteenth Amendment right of the United States Constitution. By not moving for a suppression hearing to challenge the voluntariness of this statement where the Court could have made its own Independent determination on the voluntariness of this statement, where the Court could have made its own independent determination on the voluntariness of this statement before allowing this type lines of soliciting incriminating statement testimony evidence be submitted to the jury through cross examination, Tr. Page 526, line 1,2, Tr, Page 533, line 1, Tr. Page 533 line 14, 15, Tr. Page 533, line 21, Tr.
Page 534 line 4, 6. Because of trial counsel's unreasonable performance for failing to object to the admission of this incriminating soliciting statement testimonial evidence and move for a Jackson v Denno suppressing hearing to challenge the voluntariness of this statement rendered trial counsel's performance to fall below the normal objective standards of reason through the omission described above prejudiced the applicant based on such deficient performance the Applicant's conviction and sentence should be reversed and remanded for a new trial.
Applicant contends in his second amended claim of error of omission when applicant's trial counsel failed to object to the trial judge for failing to charge the jury on the mandated jury Instruction on voluntariness of the statement that was proffered at trial as it was held in State v Drayton 337 S.E. 2d 216, also Stevenson v Bole 331 F.2d 931 (1) deprived of due process by trial judge failure to instruct jury explicitly that before they could accept confession, they must believe beyond reasonable doubt that it was given on his own volition. Because the trial judge failed to give this mandated jury instruction in this case at the bar when a statement of the applicant has been proffered during trial proceeding through soliciting cross examination for the jury to consider. Such failure of the trial judge not giving the jury the voluntariness jury instruction denied applicant due process because this alleged statement was placed before the jury during cross examination, Tr. Page 526, line 2, Tr. Page 533, line 1, Tr. Page 533, line 14, 15, Tr. Page line 12, Tr. Page 534, line 4 and 5. Due to this highly [prejudicial] incriminating soliciting untested statement being injected to the applicant's jury for consideration as described, a voluntariness jury instruction should have been given in this case by the Court as [it] was held in Steverson v Bole 331 F. 2d 939 (1). Because the trial judge failed to give this mandated standard jury instruction, applicant's due process was denied as it was held in State v Drayton 337 S.E. 2d 216. The Supreme Court held that failure of trial court to instruct jury that [it] must find beyond a reasonable doubt that the statement was freely and
voluntarily given before it could consider it in its deliberation was error requiring reversal and new trial.
Applicant asserts due to trial counsel's unreasonable performance fell below the Norman [(sic)] objective standard of reasonableness, when applicant's trial counsel failed to object to the trial judge not charging the jury on voluntariness. Such unreasonable omission of trial counsel's performance clearly has satisfied both [prongs . . . [of the] . . . test of Strickland v Washington 104 S.ct 2055. [Based] on such performance, clearly prejudiced the applicant, applicant's conviction, and sentence must be reversed and remanded for a new trial because of the omission outlined.
Applicant contends in his third amended claim of error of omission of Ineffective assistance of counsel occurred when trial counsel's performance fell below the Norman objective standard of reasonableness. [(Sic)] Trial counsel's performance was unreasonable for failing to object to the chain of custody, custodian Individual receipt certification of the conveyance of tag evidence, as South Carolina Rules of Criminal Procedure , Rule 6 (b) required and on the holding in State v Sweet 647 S.E. 2d 202, and in support of this contention in a cumulative effect, the applicant's trial counsel should objected to the admissibility of evidence based on the defect in the chain of custody custodian certification of the conveyance of evidence, especially when this evidence is being proffered at trial, Tr. Page 390, line 11, Tr. Pg. 394, line 6, Tr. Page 392 line 18, 15, Tr. Page 393, line 20. Also in support of this contention Tr. Page 57 line 19, 21 where the trial court asked trial counsel if he was going to object to the chain of custody, Tr. Page 57, line 19, 25, which trial counsel's response was "I'm not objecting to the chain, of custody". Trial counsel's performance was unreasonable and [prejudicial] for failing to object to the defect in the chain of custody custodian certification on the conveyance of the evidence in this case at bar as it was held in State v Sweet 647 S. E. 2d 202 and State v Valentine 689 S. E. 2d 608. Because trial counsel's unreasonable performance fell below the normal standard of reasonableness for failing to
object to the defect in the chain of custody custodian conveyance of the tag evidence as South Carolina Rules of Criminal Procedure, Rule 6 (b) required, and in support of this contention the holding outlined in supra State v Sweet, when trial counsel failed to object to the admissibility of this chain of custody evidence when it was proffered at trial as it held in supra State v Sweet, such unreasonable representation of trial counsel's omission certainly have satisfied both prong test of Strickland v Washington, and the Applicant's conviction and sentence must be reversed and remanded for a new trial as a matter of law.
Applicant contends error of omission of ineffective assistance of counsel occurred when the applicant's trial counsel performance fell below the Norman [(sic)] objective standard of reasonableness failing to do a reasonable factual investigation in this case at bar, as it was held in Ard v Cato 642 S. E. 2d 590 (7,9). If trial counsel would have done a reasonable factual investigation In this case at bar then counsel would have discovered the eminent domain custodian illegal interrogation fear and threats that was employed during applicant's custodian interrogation to achieve the compelling incriminating statement. Based on the fear and threat custodian interrogation illegal tactic that was employed during the applicant's custodian interrogation to achieve a compelling incriminating statement, the custodian compelling Illegal fear and threats eminent domain forceable [(sic)] tactic such as threatening the applicant if he did not give them a statement that they would talk with the solicitor and judge to make sure applicant got a very high bond and the use of eminent domain custodian interrogation officers telling the applicant that if he did not give a statement they would make it very difficult for him, based on the factual circumstance surrounding the fear and threat custodian interrogation, the applicant trial counsel was ineffective for failing to do a factual investigation. If trial counsel would have discovered the illegal custodian interrogation fear and threats tactic that was employed by the eminent domain, trial counsel should have objected to any use of the applicant's custodian Interrogation compelling statement and challenged this
custodian Interrogation statement based on the holding outlined in Miranda v Arizona 86 S.Ct 1602 "whether statement obtained from an individual who is subject to custodian police interrogation, the court further held that without proper safeguards the process of custodian Interrogation of person suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's and to compel him to speak" also in support of this claim Steverson v Bole 331 F 2d 939 "held where three police officers custodian interrogation tactic use of fear and threats and promise rendered the defendant confession was made involuntary and inadmissible".(App. 713-20).
Applicant submits that his trial counsel was ineffective for failing to make a pretrial preliminary suppressing hearing motion pursuant to Miranda v Arizona and Steverson v Bole, whereas the court could hold a preliminary hearing based on the safeguard procedure on the custodian interrogation to determine the threats and fear tactic employed by the eminent domain use in the applicant's case to compel a statement from the applicant. Such omission of trial counsel prejudiced the applicant and rendered trial counsel representation to fall below the Norman [(sic)] objective standard of reasonableness as it was held in Strickland v Washington 104 S.ct 2052 which the applicant has certainly proven both of the two prong test of Strickland v Washington based on such unreasonable omission outlined above the applicant's conviction and sentence must be reversed and remanded for a new trial based on the holding outlined In Steverson v Bole supra, as a matter of law.
On May 22, 2014, the petitioner, with assistance of counsel, filed an amended application for PCR, asserting the following allegations.
1. The Applicant is informed and believes that Attorney Mark Archer represented the Applicant with regards to his General Sessions charges in Dorchester County.
2. The Applicant is informed and believes that trial counsel, Archer, was ineffective as counsel for the Applicant specifically in allowing the violation of the Applicant's Sixth and Fourteenth Amendment Rights as outlined by the United States Constitution and also by the South Carolina Constitution Article 1 Section 14 and also the South Carolina Code of Laws, as amended, Section 17-23-60.(App. 721-22).
3. The Applicant is informed and believes that trial counsel's performance fell below the normal objective standard of reasonableness and thereby prejudiced the Applicant through the trial counsel's deficient performance, specifically when trial counsel felled to object to the Judge's erroneous jury charge instruction on the permissive inferred malice instruction.
4. The Applicant is informed and believes that he will submit this type of Judge Doctrine jury language infers malice instruction through the use of a deadly weapon is permissive and erroneous and that such language is not in line with South Carolina jurisprudence modem malice instruction, as outlined in State v. Belcher, Opinion No. 26729.
5. The Applicant is informed and believes that the deficiency of trial counsel's performance was unreasonable and prejudice and rendered the Applicant with an ineffective trial counsel.
6. The Applicant is informed and believes that the errors and omissions of trial counsel in the above-stated paragraphs has satisfied the prong test(s) of Strickland v. Washington, 104 S.Ct 2052 based on the deficiency of trial counsel's performance as evidenced by his failure to object to the Judge's erroneous malice instructions to the jury.
On May 28, 2014, the Honorable Maite Murphy held an evidentiary hearing at the Dorchester County Courthouse. The petitioner was present with counsel Charles Brooks, III. On September, 16, 2014, the PCR judge issued an order of dismissal (app. 770-82), and the petitioner appealed the denial of relief.
PCR Appeal
Deputy Chief Appellate Defender Wanda H. Carter represented the petitioner on appeal (doc. 24-12 at 1). On April 20, 2015, Carter filed a petition for writ of certiorari and requested to be relieved as counsel pursuant to Johnson v. State, 364 S.E.2d 201 (1988). The petitioner's appeal raised the following issue: "Trial counsel erred in failing to move for a Biggers identification hearing prior to trial and in failing to request that Telfair identity charge be included as a jury instruction in the case" (doc. 24-12). On August 5, 2015, the South Carolina Supreme Court entered its order denying the petition of certiorari and granting counsel's request to be relieved (doc. 24-13). The remittitur was entered on August 21. 2015 (doc. 24-14).
Federal Petition
On September 23, 2016, the petitioner filed his Section 2254 petition (doc. 1). On December 19, 2016, the respondent filed a motion for summary judgment (doc. 25) and a return and memorandum (doc. 24). As the petitioner is proceeding pro se, a Roseboro order was entered on December 20, 2016, advising the petitioner that he had 34 days to file any material in opposition to the motion for summary judgment (doc. 26). The petitioner was specifically advised that if he failed to respond adequately, the motion for summary judgment may be granted, thereby ending his case.
On January 3, 2017, the petitioner filed a "Notice And Motion Enlarge Of Time and failure to Comply Answer Motion for Stay Abeyance" (doc. 28). In this motion, the petitioner requested the court to "withhold the 28 U.S.C. 2254 Petition" until after the court rules on his pending motion to stay, and he also requested a 45 day extension. Id. On January 17, 2017, the respondent filed a response (doc. 29). The respondent opposed the motion to stay but did not oppose the motion for an extension of time. Id. On January 20, 2017, the court granted the petitioner's request for an extension of time but denied his request that he not be required to submit a response to the motion for summary judgment until after the court rules on the motion to stay (doc. 31). Thereafter, on January 30, 2017, the petitioner filed a document entitled "Reply and Notice of Motion After Amend (sic) Pleading to Return and Memorandum Support of Motion for Summary Judgment," which was docketed as both a response in opposition to summary judgment and as a motion to amend and/or correct (docs. 35, 36). Notably, in this pleading, the petitioner does not set forth any opposition to the respondent's arguments in support of summary judgment. Instead, the petitioner suggests that the respondent has misconstrued Ground Three of his petition and appears to be asking permission to substitute an issue presented to the South Carolina Supreme Court in the petitioner's appeal of the PCR judge's denial of relief. On February 6, 2017, the respondent filed a response and asserted that the proposed new claim lacked merit and was procedurally barred (doc. 38).
It is unclear from the petitioner's response to summary judgment whether he is abandoning the remaining claims in his petition or whether he is merely attempting to substitute or supplement his claim in Ground Three. In an abundance of caution, the court will address all claims as originally presented.
In the petitioner's federal petition for a writ of habeas corpus, the petitioner raises the following issues:
GROUND ONE: PCR attorney was ineffective for not filing for a 59(e) motion and 52(A) on the issue of malice which was raised, but not preserved.
SUPPORTING FACTS: PCR counsel Charles T. Brooks received an amended Application May 19, 2014, and was filed May 22, 2014 dealing with malice instruction charge. PCR counsel Charles T. Brooks questions trial counsel Mark Archer on malice instruction charge [Tr. Pg. 767, 9-10]. Attorney General for the State Megan E. Harrigan questions trial counsel on malice instruction charge [Tr. Pg. 767, 9-10]. When Order of Dismissal was drafted September 8, 2014, PCR attorney failed to move for a 59 (e) motion and 52 (A) on the Order of Dismissal on the ground so that all grounds can be preserved for Appellate review.
GROUND TWO: Ineffective Assistance of Counsel of trial counsel for failing to object [to] malice instruction jury charge where there was evidence presented to a jury question on self-defense so it can be reviewed (SCAC).
SUPPORTING FACTS: At the time of my conviction the Judge used the use of a deadly weapon can bring about malice, but there was other supporting evidence to prove there was no inferred malice. (1) There was and still is no evidence to prove I shot the victim; (2) the facts of the ABWIK case proved all 3 defendants stood their ground with weapons drawn; (3) co-defendant Qunntavious Davis admitting on [the] stand that he started the shooting.
GROUND THREE: I was never positively identified as the main suspect by the [victim]. He could not say that I was the one who shot him.(Doc. 1 at 5-10).
SUPPORTING FACTS: By the Affidavit two [subjects] armed with handguns and both fired multiple times at the victim. Even though victim admitted Parker fired shots at the victim, but don't know 100% who started firing at him. The defendant (Parker) was only identified by victim from other contact during his time as an investigator. At one point the victim said only person was following behind was a man in a red shirt, which is not the defendant.
GROUND FOUR: The evidence that the State presented does not support my conviction for ABWIK and there was evidence to support stand your ground.
SUPPORTING FACTS: 1) I was not positively identified as the person who shot the victim; 2) the victim was shot once in the leg; 3) the victim who turned out to be a cop never identified himself as law enforcement, but was seen leaving an empty apartment brandishing a weapon; 4) the victim and the two defendants was faced with a situation where he had to stand his ground because he believed his life could have been in danger if returned; 5) There was evidence presented that could mitigate, excuse, reduce or justify the ABWIK; and 6) it was never produce which was the assault weapon that strike the victim.
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The courts shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "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." Id.
Habeas Corpus Standard of Review
Because the petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997). Under the AEDPA, federal courts may not grant habeas corpus relief on any claim that was adjudicated on the merits in state court unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d). "[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 v. Taylor, 529 U.S. 362, 411 (2000). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Exhaustion
Before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203, SCACR; S.C. Code Ann. §§ 17-27-10,-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 South Carolina Code § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP to preserve the issue for appellate review. Marlar v. State, 653 S.E.2d 266, 267 (S.C.2007).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C.2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C.1990). In McKennedy, the South Carolina Supreme Court specifically held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court "outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan [v. Boerckel, 526 U.S. 838 (1999) ]." 559 S.E.2d at 854. Accordingly, a claim would not be procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the South Carolina Court of Appeals, either after a direct appeal or after pursuing relief in a PCR petition.
A habeas petitioner must first present his claim to the court in a manner in which it may be reviewed on the merits. Harris v. Reed, 489 U.S. 255, 262 (1989); Coleman v. Thompson, 501 U.S. 722, 735 (1991). It is well settled in South Carolina that "[i]ssues not raised and ruled upon in the trial court will not be considered on appeal." State v. Dunbar, 587 S.E.2d 691, 693-94 (S.C.2003). Moreover, it is not enough that the argument presented stems from the same factual scenario; rather, the legal argument must be the same as the argument presented below. See, e.g., State v. Haselden, 577 S.E.2d 445, 448 (S.C.2003) (finding differing ground for objection did not preserve issue presented for review: defendant's objection on relevancy did not preserve argument the evidence was improper character evidence); State v. Caldwell, 662 S.E.2d 474, 482 (S.C. Ct. App.2008) ("Because the argument raised on appeal does not appear to have been specifically raised below, it may not be preserved on appeal.").
Here, the petitioner timely filed a notice of appeal after sentencing and received review in the South Carolina Court of Appeals (doc. 24-6). Therefore, he exhausted his available direct appeal remedies. The petitioner also timely filed and exhausted his one PCR (app.686-705; 713-723) action, and he appealed the denial of his application for PCR (doc. 24-12). Accordingly, the respondent acknowledges that the petitioner has technically satisfied the exhaustion requirement even though the petitioner did not exhaust all of his claims in state court, as he no longer has any state court remedies available (doc. 24 at 14-17).
Non-Cognizable Claim
In Ground One, the petitioner contends that his PCR attorney was ineffective for not filing a Rule 59(e) motion and Rule 52(A) motion on the issue of malice that was raised but not preserved (doc. 1 at 5). The respondent argues that this claim was procedurally defaulted because the petitioner never presented it in state PCR proceedings and that this claim fails to state a claim upon which federal habeas corpus relief may be granted (doc. 24 at 19). The petitioner has not challenged the respondent's arguments.
Independent ineffective assistance of PCR counsel claims are not cognizable in a federal habeas corpus action. "The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." 42 U.S.C. § 2254(i); see also Martinez, 132 S. Ct. at 1320 (wherein the United States Supreme Court stated that "while § 2254(i) precludes [a petitioner] from relying on the ineffectiveness of his post-conviction attorney as a 'ground for relief', it does not stop [a petitioner] from using it to establish cause.'") Therefore, the petitioner is not entitled to federal habeas relief as to Ground One because it is not a cognizable federal habeas claim.
Procedural Bar
The respondent asserts that the petitioner is not entitled to relief because his remaining claims are procedurally defaulted and barred from federal habeas review (doc. 24 at 17, 19-20). The court agrees.
The petitioner has not challenged the respondent's assertion that his claims are procedurally barred, except as to Ground Three that he seeks to alter or amend.
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief on an issue after he failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state court. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Procedural bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
If a prisoner has failed to file a direct appeal or an application for PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court has explained:
[State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
"[A] federal court ordinarily may not consider claims that a petitioner failed to raise at the time and in the manner required under state law unless 'the prisoner demonstrates cause for the default and prejudice from the asserted error.'" Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012) (quoting House v. Bell, 547 U.S. 518, 536 (2006)). To show cause, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule," Murray v. Carrier, 477 U.S. 478, 488 (1986), or that "the factual or legal basis for the claim was not reasonably available to the claimant at the time of the state proceeding." Roach v. Angelone, 176 F.3d 210, 222 (4th Cir. 1999). "Alternatively, Petitioner may prove that failure to consider the claims will result in a fundamental miscarriage of justice." McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000) (citing Coleman, 501 U.S. at 750)). A fundamental miscarriage of justice equates to the conviction of someone who is actually innocent. However, "actual innocence" requires "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
In Ground Two, the petitioner asserts that his trial counsel was ineffective for failing "to object [to] malice instruction jury charge where there was evidence presented to a jury question on self-defense so it can be reviewed (SCAC)." This claim was raised in the petitioner's second amended PCR petition and discussed at the PCR hearing; however, it was not addressed in the PCR Judge's order of dismissal, and PCR counsel did not file a Rule 59(e) motion to have the issue addressed by the PCR court (app. 770-82). See Marlar v. State, 653 S.E.2d 266 (S.C. 2007) (failure to file Rule 59 Motion to have unaddressed issues addressed will preclude appellate review in the state appellate courts). Thus, this claim is procedurally barred unless the petitioner can show both cause for the procedural default and prejudice as a result of the alleged constitutional violation or that failure to review the constitutional violation will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50; Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (holding that absent a showing of cause and actual prejudice, a federal court is barred from considering a claim); Matthews v. Evatt, 105 F.3d 907, 915 (4th Cir. 1997) (in such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply).
Grounds Three and Four challenge the sufficiency of the evidence used to convict the petitioner (doc. 1 at 7-13). In Ground Three, the petitioner alleges that "I was never positively identified as the main suspect .. . He could not say that I was the one who shot him" (doc. 1 at 8). In Ground Four, the petitioner alleges that there was insufficient evidence to convict him of ABWIK and that there was evidence presented to "support stand your ground" (doc. 1 at 10). Grounds Three and Four were procedurally defaulted because the petitioner failed to raise them on direct appeal, even though trial counsel had preserved a directed verdict motion in the trial court (app. 499; 549-50). Accordingly, these grounds were not fairly presented to the South Carolina appellate courts and are procedurally barred from federal habeas review absent a showing of cause and prejudice. Coleman, 501 U.S. at 749-50.
Cause and Prejudice
A petitioner may overcome a procedural default and have his claims addressed on the merits by showing both cause and prejudice for the default, or that a fundamental miscarriage of justice would result from the lack of such review. Id. Here the petitioner has not alleged or shown cause and prejudice, or actual innocence to excuse the default. As such, the petitioner has failed to establish cause to excuse the default of Grounds Two, Three, and Four.
In Ground Two, in order to overcome the petitioner's failure to assert his claim that trial counsel was ineffective for failing to object to the trial judge's malice instruction, the petitioner must "show that [PCR or collateral] counsel's representation during the post-conviction proceeding was objectively unreasonable, and that, but for his errors, there is a reasonable probability that Petitioner would have received relief on a claim of ineffective assistance of trial counsel in the state post-conviction matter." Sexton v. Cozner, 569 F.3d 150, 1157 (9th Cir. 2012). See Strickland v. Washington, 466 U.S. 668, 667 (1984) (stating that in order to demonstrate ineffective assistance of counsel, a petitioner must show that (1) counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment of the United States Constitution and (2) that petitioner was prejudiced).
In this matter, as part of the trial judge's instructions to the jury, the trial judge instructed the jury that "[m]alice may be inferred from the conduct showing a total disregard for human life. Inferred malice may also rise when the deed is done with a deadly weapon" (app. 634). The petitioner was tried in April 2009 and, at that time, the malice instruction given by the trial court was still the correct law (doc. 24-1 at 3). However, in October 2009, the South Carolina Supreme Court decided the case of State v. Belcher, 685 S.E.2d 802 (S.C. 2009), in which the court held that the inference of malice from the use of a deadly weapon was no longer to be instructed in cases where the defendant offers evidence that mitigates the crime or that he was acting in self-defense because the charge may be confusing to the jury. The Belcher decision was rendered several months after the petitioner's trial had concluded. Trial counsel is to be judged as the time of representation. Washington, 466 U.S. at 690. An attorney is not ineffective for failing to anticipate ruling of an appellate court that will overrule established precedent. Kornahrens v. Evate, 66 F.3d 1350 (4th Cir.1995). Therefore, because trial counsel was not ineffective for failing to object to the trial court's instruction, collateral counsel cannot be ineffective for failing to argue that trial counsel was ineffective. Here, the petitioner has not shown that trial counsel's performance was deficient and that there is a reasonable probability that, but for counsel's errors, he would not have been convicted.
To the extent the petitioner intends to make an argument pursuant to Martinez to excuse the default of Ground Two based upon ineffective assistance of PCR counsel, he has failed to allege sufficient facts to establish that the underlying ineffective assistance counsel claim is meritorious. See Martinez 132 S.Ct. 1318-20. As the petitioner has not demonstrated cause for trial counsel's failing to object to the trial judge's malice instruction, this ground is procedurally defaulted.
In Grounds Three and Four, petitioner challenges the sufficiency of the evidence used to convict him. A claim of insufficient evidence is cognizable on collateral review in a federal habeas corpus action; however, federal review of the sufficiency of the evidence "is 'sharply limited.' " Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998) (quoting Wright v. West, 505 U.S. 277, 296 (1992)). A federal court's review of the sufficiency of the evidence to support a state court conviction is not a means "to consider anew the jury's determination of guilt or to replace the state's system of direct appellate review." Id. at 405- 406. Thus, a federal court must give great deference to the state court's ruling on the sufficiency of the evidence. Jackson v. Virginia, 443 U.S. 307, 324 (1979). When reviewing the sufficiency of the evidence to support a conviction, the court must view the evidence in the light most favorable to the prosecution. Wilson, 155 F.3d at 406. As such, a petitioner is entitled to federal habeas relief on a claim of insufficient evidence "only if 'no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Id. (quoting Jackson, 443 U.S. at 324).
Here, the court is barred from considering the merits of petitioner's sufficiency of the evidence claims presented in Grounds Three and Four because he failed to raise them at the time and in the manner required under state law and because he has not presented any argument to demonstrate cause for the default and prejudice from the alleged error or a fundamental miscarriage of justice. Teleguz, 689 F.3d at 327 (quoting House v. Bell, 547 U.S. 518, 536 (2006)).
Motion to Amend
On January 30, 2017, the petitioner filed a motion to alter or amend (doc. 36). In this motion, the petitioner contends that the respondent misconstrued his claim in Ground Three as a challenge to the sufficiency of the evidence. Now, the petitioner submits that his claim in Ground Three is actually a claim for ineffective assistance of counsel based upon trial counsel's failure to request a pretrial hearing under Neil v. Biggers, 409 U.S. 188 (1972) of Sgt. Gibbons' in-court identification of him:
Trial Counsel erred in failing to move for a "Biggers Identification hearing" prior to trial and in failing to request that
a Telfair Identity charge be included as a jury instruction in this case.(Doc. 36 at 2).
It is unclear whether the petitioner seeks to add this text to Ground Three or if he is seeking replace the text of Ground Three with this new language.
Federal Rule of Civil Procedure 15 provides that leave to amend a pleading should be given freely when justice so requires. Fed. R. Civ. P. 15(a)(2). However, "[t]he law is well-settled 'that leave to amend a pleading should be denied when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile.'" Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir.1999) (citing Foman v. Davis, 371 U.S. 178 (1962), Johnson v. Oroweat Foods Co., 785 F.2d 503, 509-10 (4th Cir.1986)). The respondent argues that the proposed amended claim is exhausted but that this claim is procedurally defaulted.
The petitioner argues that the proposed amended allegation is not procedurally defaulted because it was raised in the PCR appeal (doc. 35 at 1-2). However, it was not presented as a claim in the petitioner's PCR application (app. 686-705), and it was not presented in either of his amendments to the PCR application (app. 713-20, 721-22). Therefore, the South Carolina Supreme Court would not have addressed the issue that the petitioner seeks to now submit because of an independent and adequate state rule of appellate procedure. See State v. Freiburger, 620 S.E.2d 737, 741 (2005) (issue must be raised and ruled upon in the trial court to be preserved for appellate review).
To the extent the petitioner may seek to rely upon Martinez in an effort to excuse the procedural default of the proposed ground for relief, the underlying claim is not meritorius, and thus it cannot establish cause for the procedural default. Martinez, 132 S. Ct. at 1319 ("When faced with the question whether there is cause for an apparent default, a State may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards.").
Based upon the foregoing, allowing the petitioner to amend his petition to assert this amended claim would be futile, and therefore it is recommended that the motion to amend be denied.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, it is recommended that the respondent's motion for summary judgment (doc. 25) be GRANTED and the petition for habeas corpus relief (doc. 1) be DENIED and that the petitioner's motions to stay (doc. 3) and to amend (doc. 36) be DENIED.
s/ Kevin F. McDonald
United States Magistrate Judge April 6, 2017
Greenville, South Carolina
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 of Court
United States District Court
300 East Washington Street — Room 239
Greenville, South Carolina 29601
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).