Opinion
C. A. 5:21-2603-BHH-KDW
09-15-2022
Roosevelt Sabb, Jr., Petitioner, v. Warden of Broad River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Roosevelt Sabb, Jr. (“Petitioner”) is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 27, 28. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 29. Petitioner filed a response on December 20, 2021, ECF No. 32, to which Respondent filed a reply on December 29, 2021. ECF No. 33.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
Petitioner was indicted by the Clarendon County grand jury in the October 2014 term of court for murder. App. 77-78. On October 3, 2017, Petitioner appeared before the Honorable George M. McFadden, Jr. for a plea hearing. App. 1-11. Petitioner was represented by Attorney Shaun C. Kent and Assistant Solicitor Christopher DuRant appeared on behalf of the State. Id. According to the facts presented by the solicitor, Petitioner and the victim, Keith Allen Smith (“Smith”), who was Petitioner's first cousin, were visiting their family on July 4. App. 6. Petitioner and Smith had been together throughout the day and later that evening they went to a nightclub. Id. Petitioner and Smith had an argument after they left the club, and they had another argument once they arrived at their uncle's house. Id. The two began to fight in the yard, wrestling and hitting each other. App. 6-7. Family members broke up the fight, and Smith went inside their uncle's house, while Petitioner remained outside in his vehicle. App. 7. A short while later, Smith went back outside slamming his uncle's door in anger, and his uncle followed Smith to confront him. Id. Their uncle was on the stoop, Smith was in the grass in front of the house, and Petitioner was in the car. Id. Petitioner revved the motor in his vehicle and accelerated forward pinning Smith between Petitioner's car and another vehicle parked by the house. Id. Petitioner then backed up his vehicle, drove out of the driveway, pulled into a vacant lot across the street, and exited his vehicle to wait for law enforcement to arrive. Id. Smith was pronounced dead on the scene. App. 8. After the solicitor recited the facts of the case, Petitioner indicated the facts recited by the solicitor were substantially and essentially correct and that he still wished to plead guilty. App. 9. Petitioner entered a negotiated guilty plea to voluntary manslaughter and Judge McFadden sentenced him to 15 years imprisonment. App. 9-11. Petitioner did not file a direct appeal. ECF No. 1 at 2.
Citations to “App.” refer to the Appendix for Petitioner's guilty plea transcript and Post- Conviction Relief (“PCR”) Proceedings and the page numbers on the top of the page. That appendix is available at ECF No. 27-1 in this habeas matter.
Petitioner filed an application for post-conviction relief (“PCR”) on March 29, 2018, in which he alleged he was being held unlawfully due to ineffective assistance of counsel. App. 13-21. The State filed a return on August 6, 2018. App. 22-26. A PCR evidentiary hearing was held before the Honorable Kristie F. Curtis, Circuit Court Judge, on March 27, 2019. App. 28-61. Petitioner was present and represented by Attorney Timothy L. Griffith, and Attorney Janelle H. Gregory appeared on behalf of the State. See id. Petitioner and his trial counsel Shawn Kent testified at the hearing. Id. On May 7, 2019, Judge Curtis filed an order dismissing Petitioner's PCR application with prejudice, making the following findings of fact and conclusions of law:
This Court viewed the testimony presented at the evidentiary hearing, observed the witnesses presented at the hearing, passed upon their credibility, and weighed the testimony accordingly. Further, this Court has reviewed the Clerk of Court records regarding the subject convictions, the plea transcript, and Applicant's records from the South Carolina Department of Corrections, the application for post-conviction relief, and the legal arguments made by the attorneys. Set forth below are the relevant findings of fact and conclusion of law as required by S.C. Code Ann. § 17-27-80 (2003).
Ineffective Assistance of Counsel
This Court finds Applicant has failed to meet his burden of proving he is entitled to post- conviction relief on any of his allegations of ineffective assistance of counsel. Applicant has failed to prove both deficiency on the part of Counsel and any prejudice therefrom. Moreover, this Court notes the record reflects the knowing and voluntary nature of Applicant's guilty plea. Furthermore, after observing the witnesses and passing on their credibility, this court finds Counsel's testimony to be credible. By contrast, this Court finds Applicant's testimony lacks credibility.
Counsel failed to meet with Applicant and review discovery
Applicant testified Counsel failed to meet with him for the thirty-four months before the guilty plea. Applicant testified he met with Counsel the day before the guilty plea and Counsel wrote “10-12 years” on the board. Applicant testified he only reviewed partial discovery with Counsel, which included the MAIT animation.
MAIT is South Carolina's Multidisciplinary Accident Investigation Team within the South Carolina Department Public Safety Highway Patrol Division. See https://scdps.sc.gov/schp/contact/troop9 (last visited May 12, 2022).
However, Counsel testified he could not meet with Applicant in person because Applicant was a commercial truck driver and constantly out of town. Counsel testified he did communicate with Applicant over the phone while the case was pending. Counsel testified when he was provided notice that Applicant's case was coming up for trial, he called Applicant and told him to come home. Counsel testified there was little movement on his case from 2014-2017, but he was still working it during that time. Counsel testified he met with Applicant to discuss his case and get Applicant's consent to approach the solicitor for a plea. Counsel testified the meetings he had with Applicant lasted three to four hours. Counsel testified he reviewed all of the discovery with Applicant, which included more than the animation. Counsel testified he has notes indicating Applicant received all of the discovery Counsel had in the case.
This Court finds Counsel's testimony with respect to this allegation very credible, whereas- Applicant's testimony is not credible. Based on the foregoing, this Court finds Applicant has failed to establish Counsel was deficient or any resulting prejudice from Counsel's alleged deficiency. Therefore, this allegation is denied and dismissed with prejudice.
Counsel failed to investigate Applicant's charge
Applicant contends Counsel was ineffective for failing to investigate. “Criminal defense attorneys have a duty to undertake a reasonable investigation, which at a minimum includes interviewing potential witnesses and making an independent investigation of the facts and circumstances of the case.” Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60, 64 (2011) (citations omitted). “‘Although counsel should conduct a reasonable investigation into potential defenses, Strickland does not impose a constitutional requirement that counsel uncover every scrap of evidence that could conceivably help their client.'” Tucker v. Ozmint, 350 F.3d 433, 442 (4th Cir. 2003) (quoting Green v. French, 143 F.3d 865, 892 (4th Cir. 1998)). “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Strickland, 466 U.S. at 691; Wiggins v. Smith, 539 U.S. 510, 521-22 (2003). Moreover, “failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to result.” Porter v. State, 368 S.C. at 385-86, 629 S.E.2d at 357, abrogated on other grounds by Smalls, 422 S.C. 174, 810 S.E.2d 836 (citing Moorehead v. State, 329 S.C. 329, 334, 496 S.E.2d 415, 417 (1998)).
Here, Counsel testified he went to the scene with his investigator and met with the lead investigator from the law enforcement agency that was assigned to Applicant's case. Counsel testified he consulted with an expert in accident reconstruction regarding the MIAT [sic] investigator's animation and findings and the consultation confirmed the MAIT investigator's animation and findings were accurate. Counsel testified Applicant could not maintain the incident was an accident because of the swerve marks and the engine revving. This Court further finds there was no reasonable basis for Counsel to believe any additional investigation would have been beneficial.
This Court further finds Applicant has failed to establish any resulting prejudice from the alleged deficiency. Applicant failed to testify as to what additional investigation Counsel should have conducted or what benefit he could have realized from any additional investigation. Applicant's bare assertions, without more, do not give rise to the level of proof required for Applicant to meet his burden. See Porter, 368 S.C. at 385-86, 629 S.E.2d at 357 (‘‘Failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to result.”). Accordingly, this allegation must be denied and dismissed with prejudice.
Applicant accepted the State's plea offer because Counsel failed to prepare for trial.
Applicant alleges Counsel did not prepare his case for trial and that led to Applicant accepting the State's plea offer. Specifically, Applicant alleges Counsel did not meet with any witnesses, or evaluate any possible defenses or mitigating factors in his case. Applicant testified he had to accept the State's plea offer because he did not feel Counsel was prepared for trial. As an initial matter, this Court finds Counsel's testimony with respect to this issue very credible, whereas Applicant's testimony is not credible.
This Court finds Applicant has failed to establish Counsel was deficient. “There is a strong presumption counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decision in the case.” Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007). Moreover, when there is evidence that counsel met with Applicant in preparation for trial and there is no evidence additional preparation on the part of counsel would have affected the outcome at trial, counsel cannot be said to have been ineffective. See Harris v. State, 377 S.C 66, 659, S.E.2d 140 (2008), abrogated on other grounds by Smalls v. State, 422 S.C. 174, 810 S.E.2d 836 (2018). To establish counsel was inadequately prepared, an applicant must present evidence of what counsel could have discovered or what other defenses could have been pursued had counsel been more fully prepared. Jackson v. State, 329 S.C. 345, 495 S.E.2d 768 (1998).
Here, Counsel testified, although he was unable to meet with Applicant in person while the case was pending due to Applicant's job, he was able to discuss Applicant's case with him over the phone. Counsel also testified when Applicant's case was noticed for trial, he met with Applicant multiple times and those meetings lasted three to four hours. Counsel testified he reviewed Applicant's charges with him and discussed the MAIT report and the findings of his accident reconstruction expert. Counsel testified based on his investigation, Applicant would not have been successful at trial with the defense that the incident was an accident. Counsel testified he was not able to locate any favorable witnesses to testify on Applicant's behalf at trial. Counsel testified it was Applicant's decision to plead guilty and he believed that was in Applicant's best interest. Counsel testified had Applicant wanted to proceed to trial, he would have taken the case to trial.
This Court finds this allegation is without merit, and Applicant has failed to carry his burden of proving that Counsel was deficient in preparing his case for trial. This Court finds Applicant entered his guilty plea freely and voluntarily. This Court also finds Applicant has failed to establish any resulting prejudice from the alleged deficiency. “A guilty plea generally acts as a waiver of all non-jurisdictional defects and defenses.” State v. Thomason, 341 S.C. 524,526, 534 S.E.2d 708, 710 (Ct. App. 2000) (citing State v. Munsch, 287 S.C. 313, 338 S.E.2d 329 (1985)). Additionally, Applicant waived his right to a jury trial, his right to remain silent, and his right to put up a defense to this charge. (GP Tr. 5.) Applicant indicated he understood his constitutional rights and, understanding those rights, still wanted to enter a guilty plea. (GP Tr. 6.) Applicant further testified Counsel had answered all of his questions, reviewed discovery with him, and had done everything Applicant wanted him to do during his representation. (GP Tr. 4.) Based on Applicant's solemn admission of guilt at the plea, this Court finds Applicant has failed to establish any resulting prejudice from this alleged deficiency. Accordingly, this allegation must be denied and dismissed with prejudice.
CONCLUSION
Based on the foregoing, the Court finds and concludes Applicant has not established any constitutional violations or deprivations that would require this Court to grant his application. Therefore, this application for post-conviction relief must be denied and dismissed with prejudice.App. 70-76.
PCR counsel filed a Notice of Appeal on December 5, 2019. ECF No. 27-2. Appellate Defender Taylor D. Gilliam of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. ECF No. 27-3. Attorney Gilliam filed a Johnson petition for writ of certiorari in the South Carolina Supreme Court on September 8, 2020, raising the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors of Anders v. California, 386 U.S. 738 (1967), to post-conviction appeals). Anders requires that counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
Whether the PCR court erred in denying relief, where trial counsel only met with Petitioner on the eve of trial, where Petitioner did not believe counsel was prepared for trial, and where Petitioner had no choice but to plead guilty?Id. at 3. Petitioner's counsel asserted the petition was without legal merit and requested permission to withdraw from further representation. Id. at 11.
On October 26, 2020, Petitioner filed a pro se brief in which he raised the following issues:
1-2 The PCR court erred in denying relief where trial counsel only met with the petitioner on the eve of trial, and where petitioner had no choice but to plead guilty.
3. The PCR court erred in offenging relief when counsel failed to conduct a thorough and independent investigation of the facts of the case solely relying on the integrity and infavorability of the police investigation.
4. The PCR court erred in denying petitioner's claim that counsel failed to proved the state's case with a meaningful adversarial challenge where counsel admittedly did nothing except negotiate a plea.
5. The PCR court in denying relief where PCR counsel failed to file a timely notice of Appeal in denial of relief and after the petitioner requested an Appeal.
6. The PCR court erred in denying relief where PCR counsel failed to file a motion to alter or amend judgment.
7. The PCR court erred in denying relief where the PCR court failed to make the required finding of fact concerning his claims of ineffective assistance of counsel.
8. The PCR court erred in denying relief where counsel gave bad advice about
animation and sentence.
9. The PCR court erred in denying the petitioner's claim that the plea is invalid because counsel answered for the petitioner during the plea colloquy, violating Federal Rule 11.ECF No. 27-4 at 2 (errors in original).
The South Carolina Supreme Court transferred Petitioner's appeal to the Court of Appeals on October 29, 2020. ECF No. 27-5. On April 28, 2021, the Court of Appeals denied the Petition for Writ of Certiorari. ECF No. 27-6. The Remittitur was issued on May 18, 2021. ECF No. 27-7. This Petition followed on August 13, 2021. ECF No. 1.
Petitioner filed a second PCR Application on December 9, 2019, in which Petitioner raised an ineffective assistance of PCR counsel claim pursuant to Austin v. State asserting his PCR counsel failed to file an appeal of the PCR court's order. ECF No. 27-8 at 6, 8. Petitioner also alleged his PCR counsel failed to amend his PCR application to include all his PCR grounds, and failed to raise these additional grounds at his hearing. Id. at 8-9. Petitioner also raised additional ineffective assistance of counsel claims. Id. at 9-17. On November 3, 2021, the State filed a Return and Motion to Dismiss. ECF No. 27-9. On November 5, 2021, the Chief Administrative Judge for the Third Judicial Circuit filed a conditional order of dismissal finding that the ineffective assistance of PCR counsel claims concerning the appeal was not supported by the record, that the remaining claims were without merit, and the PCR application was untimely and successive. ECF No. 27-10.
Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991)
II. Discussion
A. Federal Habeas Issues
Petitioner states the following ground in his petition:
Ground One: Petitioner's plea was accepted contrary to rules governing plea's.
Supporting Facts: (a) the state courts acceptance of petitioner's plea is contrary to clearly established Federal law and determined by the supreme court to violate the rules governing plea colloquies, where during the plea when the court asked petitioner if he was pleading guilty because he was guilty, the petitioner remained silent. Counsel then answered instead of petitioner and the court hurriedly accepted the plea without curing the defect.
(b) The petitioner requested PCR counsel amend this issue to his application, PCR counsel refused. Petitioner then raised this issue verbally at PCR hearing and in his pro se brief for writ of certiorari. Both times the state ignored petitioner claim, denying due process.
Ground Two: Counsel put his faith in the infavorability of the police investigation.
Supporting Facts: (a) The state courts ruling that counsel reasonably investigated was an unreasonable application of clearly established Federal law and determined by the supreme court that counsel's testimony confirmed petitioner's claim that counsel's decisions not to investigate was based in his faith in the integrity and infavorability of the police investigation.
Ground Three: The state court did not rule with finding of facts and conclusion's of law.
Supporting Facts: (a) The state court ruled contrary to clearly established Federal law as determined by the supreme court by passing on petitioner's credibility at presentment of his claims without stating expressly its finding of facts and conclusions of law.
Ground Four: Counsel failed to abide by guidelines set for lawyers.
Supporting Facts: (a) The state courts ruling that counsel was not ineffective when he acted against the guidelines set by the American Bar Association and clearly established Federal law, when he decided not to regularly meet with petitioner to investigate the case, develope strategy or keep petitioner informed was an unreasonable determination of the facts in light of evidence presented in state court, where counsel testified that the petitioner was not at fault for his decisions not to follow the rules.
Ground Five: Counsel gave bad advice about length of sentence
Supporting Facts: (a) The state courts ruling that counsel did not deprive the petitioner of critical information needed to make a knowing and intelligent plea, when he gave wrong information about length of sentence. This was an unreasonable determination of the facts in lights of the evidence presented in court, where petitioner raised that counsel advised him the plea would get him home in ten to twelve years which was erroneous because the minimum is twelve years nine months, counsel conceded this issue and counsel notes corroborate petitioner's claims verbatim.
Ground Six: Counsel failed to hire or discuss hiring an expert witness.
Supporting Facts: (a) The state courts ruling that counsel hired an expert witness was an unreasonable application of clearly established Federal law as decided by the supreme court where counsel testified in hindsight he should have hired an expert, which is ineffective and no showing of prejudice is necessary.
Ground Seven: The state court unreasonably applied Strickland when petitioner raised claims under Cronic.
Supporting Facts: (a) The state court ruling involved an unreasonable application of clearly established Federal law where petitioner raised that counsel failed to provide the states case to meaningful adversarial testing. Where counsel testified he did not conduct an independent investigation, he did not regularity consult with petitioner, he made no pretrial motions or challenges, he did not investigate or interview witnessesm he developed no strategy he did not discuss any defenses and he gave bad advice.
ECF No. 1 at 5-17 (errors in original).
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly 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. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-405 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[,]” it “must be objectively unreasonable,” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to statecourt factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential,” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
Where allegations of involuntary guilty pleas are concerned, the United States Supreme Court has held that a guilty plea is constitutionally valid if it “‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Hill v. Lockhart, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. at 31). “Where, as here, 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.” Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). A plea is knowingly and intelligently made if a defendant is “‘fully aware of the direct consequences' of his guilty plea and not induced by threats, misrepresentation, including unfulfilled or unfulfillable promises, or by “‘promises that are by their nature improper as having no relationship to the prosecutor's business'” Brady v. United States, 397 U.S. 742, 755 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957)). Because a guilty plea is a solemn, judicial admission of the truth of the charges against an individual, a criminal inmate's right to contest the validity of such a plea is usually, but not invariably, foreclosed. Blackledge v. Allison, 431 U.S. 63, 74-75 (1977). Therefore, statements made during a guilty plea should be considered conclusive unless a criminal inmate presents reasons why he should be allowed to depart from the truth of his statements. Crawford v. United States, 519 F.2d 347 (4th Cir. 1975), overruled on other grounds by United States v. Whitley, 759 F.2d 327, 350 (4th Cir. 1985); Edmonds v. Lewis, 546 F.2d 566, 568 (4th Cir. 1976). Insofar as the review of claims of ineffective assistance of counsel raised by persons who pleaded guilty is concerned, the United States Supreme Court has stated,
Hindsight and second guesses are also inappropriate, and often more so, where a plea has been entered without a full trial ....The added uncertainty that results when there is no extended, formal record and no actual history to show how the charges have played out at trial works against the party alleging inadequate assistance. Counsel, too, faced that uncertainty. There is a most substantial burden on the claimant to show ineffective assistance....Premo v. Moore, 562 U.S. 115, 132 (2011).
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[,]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
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 (S.C. 1976). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains: [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case. Reed v. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule[,]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
1. Procedurally-Barred Grounds
Respondent argues Petitioner's Grounds Two and Three are procedurally barred because Petitioner failed to raise these claims to the PCR court. ECF No. 27 at 21-22. In Response, Petitioner claims Grounds Two and Three were raised in accordance with 28 U.S.C. § 2254 (e) and “are a direct result of evidence presented a PCR ruling.” ECF No. 32 at 2. In Ground Two Petitioner claims his plea counsel put his faith in the “infavorability of the police investigation.” ECF No. 1 at 9. In Ground Three, Petitioner alleges the state court “did not rule with finding of facts and conclusions of law.” Id. at 11. The undersigned finds Petitioner's Ground Two and Three claims were not ruled upon by the PCR court and therefore are not preserved for review. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (holding issue not properly raised to state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas); Pruitt v. State, 423 S.E.2d 127 (S.C. 1992) (holding issue must be raised to and ruled on by the PCR judge in order to be preserved for review). Consequently, federal habeas review of the Petitioner's Ground Two and Three claims are barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Matthews v. Evatt, supra.
2. Cause and Prejudice
Petitioner has not shown sufficient cause and prejudice to excuse the default of his Ground Two and Three claims. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim 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.
The existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's procedural rule. Murray, 477 U.S. at 488. Petitioner fails to articulate cause for procedurally defaulting his Ground Two and Three claims. Petitioner had a plea hearing in which he raised no objection, a PCR hearing, and a PCR appeal in which to raise these issues. However, he failed to raise them, raise them properly, or preserve the issues for habeas review. Accordingly, Petitioner cannot establish cause and prejudice. See 28 U.S.C. § 2254; Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990) (“Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court.”); Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir. 1996) (holding that to show prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different).
In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). To pass through the actual-innocence gateway, a petitioner's case must be “truly extraordinary.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The court's review of the record does not support a showing of actual innocence. Therefore, the procedural bar applies to Petitioner's Ground Two and Three claims.
3. Merits Review
In his habeas Petition Grounds One, Four through Seven, Petitioner alleges (a) his plea was accepted contrary to rules governing pleas when plea counsel answered for Petitioner at his plea hearing concerning whether Petitioner was pleading guilty because he was guilty; (b) counsel failed to abide by guidelines for lawyers when he failed to meet with Petitioner regularly, investigate the case, develop strategy, or keep Petitioner informed of his progress; (c) counsel gave Petitioner bad advice when he gave Petitioner the wrong information about the length of his possible sentence; (d) counsel failed to hire or discuss hiring an expert witness; and (e) the state court unreasonably applied Strickland when Petitioner raised a claim under Cronic that counsel failed to subject the state's case to a meaningful adversarial testing. ECF No. 1 at 6-17.
At the PCR evidentiary hearing, Petitioner testified he first met with plea counsel in 2014. App. 33. Petitioner stated after he was granted bail, he did not see his plea counsel for 34 months. App. 34. Petitioner said a few days before he entered his plea, counsel called him and told him to come into the office. Id. Petitioner testified he went to the office on Thursday and counsel only showed Petitioner the animation part of his discovery. Id. Petitioner stated counsel then told him to go home and spend time with his family and counsel would talk to Petitioner next Thursday. Id. Petitioner said counsel called him the next day and told Petitioner to come in Monday or Tuesday, the day before the plea hearing. Id. Petitioner stated when he returned to the office, counsel wrote 10 to 12 years on the board and told Petitioner if he accepted the 15-year plea deal that he would be home “in as little as ten years.” App. 34-35. Petitioner said he told counsel the State's animation was inaccurate and counsel told Petitioner he understood but there was nothing counsel could do about it. Id. at 35. Petitioner stated he also asked about a lesser charge and counsel told him there was nothing he could do. Id. Petitioner said he did not think he had any other option but to accept the plea as he did not see how counsel would be prepared for trial as they had not discussed anything. Id. Petitioner stated counsel did not show him the rest of his discovery, and counsel told him if they went to trial the animation would be played repeatedly and that would be bad. Id. Petitioner said he did not recall if counsel discussed the possibility of him being convicted. App. 35-36. Petitioner claimed counsel told him he would serve 10 years on a 15-year plea, but he learned that was not true as he would have to serve 12 years, nine months at the minimum. App. 36. Petitioner stated he understood his plea to voluntary manslaughter carried a lesser sentence than murder. Id. Petitioner said he would have gone to trial if he knew the information that counsel gave him about the animation was not correct. App. 37. Petitioner stated counsel did not share with him any other evidence the State had, but he was aware that his uncle was a witness but his uncle was “out of his mind at that time” due to brain cancer and would not have been able to testify. Id. Petitioner said he believed counsel could have hired their own expert to challenge the State's case, or ask for a lesser charge, or gone to trial and argued the death was an accident. App. 38. Petitioner stated:
I would prefer him challenge everything from the beginning, elements, you know, motions to suppress. He didn't challenge anything. He didn't interview anybody. He didn't hire an expert witness. He didn't oppose anything.Id. Petitioner stated the solicitor's recitation of facts was false so he stopped answering the court and his counsel answered for him when the court asked Petitioner if he was pleading guilty because he was guilty. App. 40.
Petitioner's plea counsel testified he met with Petitioner numerous times while he was incarcerated, but after Petitioner was released on bond, they did not meet in person a lot. App. 43. Counsel stated Petitioner
was a commercial truck driver, so he was actually not living in Clarendon County, . . . so, candidly, he was never in town. Not through any fault of his own, he had to work. So he actually wasn't in town. He made his payments through the mail through his truck driving service. So we actually talked on the phone several times. But as far as meeting actually in person, we weren't able to meet a lot of times because he just didn't live in town.Id. Counsel stated he reviewed the discovery with Petitioner, which included an animation, and Petitioner understood the discovery. App. 43-44. Counsel explained the animation video was a video prepared by the MAIT team. App. 45. Counsel stated Petitioner was mistaken about the animation being admissible at trial, but they were worried about it. App. 45. Counsel said he had a friend who does accident reconstruction review the animation and his friend believed it was accurate based on the measurements and dimensions taken from the scene. App. 45. Counsel stated
The MAIT team came out. They indicated that not only did it rev, but they were able to see acceleration marks where the tires were basically spinning. The MAIT team was able to indicate from the tire marks because it was a wetter day that they were able to see a swerve pattern, which indicated that the vehicle swerved toward the house and then came back towards the victim.
The MAIT team throughout the discovery -- and we discussed all of this with Mr. Sabb. The MAIT team's belief was that Mr. Sabb swerved to come across and come back at the victim, eliminating the theory and the thought process of accident in that the vehicle the revved, they saw acceleration marks. The theory was, acceleration marks, then saw the vehicle going towards the house and then coming back as if the victim was trying to get out of the way to dodge, then he was pinned against the vehicle. The vehicle then backed up and then parked across the street. And those are the facts of what we were faced with.
App. 46-47. Counsel stated he discussed this version of facts with Petitioner and Petitioner maintained that it was an accident. App. 47. Counsel indicated Petitioner was correct that his uncle, who was the number one witness, was not mentally stable and would not have been the best witness for the State. Id. Counsel stated the problem was there were two witnesses, but the witnesses were “not as important as the science of the accident.” App. 47. Counsel said he informed Petitioner that the solicitor really wanted a murder charge because they believed the evidence “did not support accident.” App. 48. Counsel explained that he went and looked at the scene of the incident with his investigator and talked to the lead investigator. Id. Counsel stated he spoke with Petitioner several times about his story and reviewed the discovery and he explained to Petitioner that the science in the case was what concerned him the most. App. 48-49. Counsel testified he could not find any favorable witnesses. App. 49. Counsel stated when the case was called for trial, he spoke with Petitioner and informed him that they did not get a favorable judge, and if they lost at trial, he could potentially get a life sentence. App. 50. Counsel said he had several discussions with the solicitor's office and they finally agreed to a plea to voluntary manslaughter with a 15-year sentence. App. 50-54. Counsel stated one of the reasons the solicitor agreed to such a low sentence was due to the death of one of his principal investigators on the case. App. 54. Counsel testified Petitioner did not want the deal and he wanted counsel to get a better deal. Id. Counsel said he told Petitioner that was the best deal he could get and they could ask for a continuance and go to trial. Id. Counsel stated he informed Petitioner they could argue accident at trial but that would be difficult to prove because of the acceleration marks. App. 54-55. Counsel said the expert he conferred with said “the acceleration marks were spot on and accurate, also, and it looked like a person who had paused, accelerated, thought about it and hit somebody.” App. 55. Counsel testified it was Petitioner's decision to plead guilty to the negotiated sentence, and he would have gone to trial if Petitioner wanted. App. 55-56.
In rejecting Petitioner's ineffective assistance of counsel claims, the PCR court found Petitioner failed to show he was entitled to relief on any of his ineffective assistance of counsel allegations. App. 70. The PCR court found Petitioner failed to establish his counsel was deficient or that he was prejudiced from any alleged deficiency. Id. The court also found plea counsel's testimony to be credible and Petitioner's testimony to not be credible. App. 71. Addressing Petitioner's contention that counsel failed to meet with him and review discovery, the court found more believable counsel's testimony that Petitioner was an out-of-town truck driver which limited the opportunities to discuss the case, however counsel did speak with Petitioner on the phone while the case was pending. App. 71. The court further noted counsel had Petitioner come into the office once he received notice the case was coming up for trial, and counsel met with Petitioner and had 3 to 4 hour long discussions where they reviewed the discovery and discussed possible defenses. Id. The court also noted counsel testified Petitioner gave him permission to approach the solicitor about a plea. Id. The court found Petitioner failed to establish deficiency or prejudice. Id. As to Petitioner's claim that counsel failed to investigate his charge, the court found counsel did investigate the accident and as a result of the investigation, i.e. the swerve marks and revving of the engine, counsel concluded the evidence did not support Petitioner's accident claim. App. 7273. The court found counsel had a reasonable basis to believe there was no benefit to do further investigation. App. 73. The court also found Petitioner failed to establish prejudice as he did not offer any evidence about how an additional investigation would have helped. Id.
The PCR court also found Petitioner's involuntary plea claim to be without merit. Id. The court found Petitioner failed to offer sufficient evidence to support his claim that he only took the plea because counsel was not prepared for trial. App. 73. The court found counsel's testimony to be more credible that he investigated the case, met with Petitioner on multiple occasions, reviewed Petitioner's charges and discussed the MAIT report and the findings of the accident reconstruction expert. App. 73. The court also found counsel's testimony to be credible that he discussed with Petitioner the unlikelihood of success at trial, that he was prepared to proceed to trial if that was Petitioner's choice, and as a result of this investigation and discussions with Petitioner, Petitioner decided on his own to accept the plea. App. 74. The court reviewed Petitioner's testimony at the plea hearing and found Petitioner admitted his guilt during the plea, he understood and waived his constitutional rights, and understood the terms of the plea and entered into it freely and voluntarily. App. 74-75.
In support of his summary judgment motion, Respondent contends the PCR court reasonably found Petitioner failed to prove as to Ground One and Grounds Four through Seven that his plea counsel was deficient or that he suffered prejudice from these alleged deficiencies. ECF No. 27 at 22-24. Respondent further argues Petitioner cannot demonstrate his plea was not freely or voluntarily made. Id. at 24-25.
In response, Petitioner argues the PCR court did not adjudicate his Ground One claim on the merits and the court's ruling that his plea was knowing and voluntary is contrary to FRCP 11, and “inconsistent with the rudimentary demand for fair procedure.” ECF No. 32 at 2-3. Petitioner argues the violation took place when the court allowed plea counsel to respond for him in the affirmative when the trial court asked if Petitioner was pleading guilty because he was guilty. Id. at 3. Petitioner contends “the state court is presenting a fraud to this court by rewriting the transcript to support its claim.” Id. Petitioner alleges the court's ruling on his Ground Four claim is contrary to clearly established federal law. Id. Petitioner argues there was “no evidence to support how counsel could fulfill his duties with close to zero consultations.” Id. at 4. Petitioner claims that although the State argues it was Petitioner's fault “for counsel's decision not to consult him,” Petitioner cites to the PCR transcript and argues plea counsel took full responsibility for this failure. Id. Petitioner references his Ground Five claim and argues the evidence in the record does not support the PCR court's ruling that Petitioner failed to establish counsel gave him bad advice about the length of his sentence. Id. Petitioner says the PCR court ruled that counsel telling Petitioner he had to serve 85% fully informed Petitioner. Id. Petitioner argues counsel conceded this issue and therefore there is no evidence to support this conclusion. Id. at 5. As to his Ground Six claim, Petitioner argues the court's finding that counsel hired an investigator was an unreasonable application of federal law. Id. Petitioner contends this ruling is also unreasonable in light of counsel's testimony that he did not let Petitioner speak to an investigator, and he probably should have. Id. Petitioner contends the PCR court's ruling on his Ground Seven claim was unreasonable in light of the evidence presented in court. Id. at 6. Petitioner argues his counsel stated he consulted with Petitioner close to zero times during the pretrial phase. Id.
The undersigned finds the PCR court addressed Petitioner's Ground One claim that his guilty plea was defective. To the extent the court agrees with Petitioner's contention that his Ground One claim was not adjudicated on the merits, Petitioner's Ground One claim would be defaulted. See Coleman v. Thompson, 501 U.S. 722 (1991) (holding issue not properly raised to state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas); Pruitt v. State, 423 S.E.2d 127 (S.C. 1992) (holding issue must be raised to and ruled on by the PCR judge in order to be preserved for review).
Addressing Petitioner's claims, the undersigned finds the evidence presented at the hearing supports the PCR court's findings that (a) counsel's in-person meetings with Petitioner were minimal due to Petitioner's truck driving job but counsel met with Petitioner multiple times for three to four hours on the days leading up to the plea; (b) counsel's discussion with Petitioner included a review of all the discovery and the possibility of a plea deal; (c) counsel went to the scene with his investigator and consulted with an accident reconstruction expert concerning the MAIT investigator's findings and his expert found the findings to be accurate; (d) counsel reviewed Petitioner's charges with him and they discussed the MAIT report and the findings of the accident reconstruction experts; (e) counsel was not able to find any favorable witnesses, (f) it was Petitioner's decision to plead guilty and he believed it was in Petitioner's best interest; and (g) counsel would have taken the case to trial if Petitioner's chose to. App. 70-74. The undersigned further finds the PCR court reasonably found that Petitioner failed to show his guilty plea was induced by ineffective assistance of counsel as Petitioner failed to carry his burden that counsel was deficient in preparing the case for trial. App. 75. The PCR court's factual findings are based, in part, on its assessment that counsel's testimony was more credible than that of Petitioner. The PCR court's credibility determination is entitled to deference in this action. Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.”); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”). Petitioner may overcome this presumption of correctness only by showing “‘clear and convincing evidence to the contrary.'” Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Petitioner has shown no cause to discount the PCR court's credibility determination and the undersigned can find no basis in the record on which to overturn the state court decision.
Addressing Petitioner's involuntary plea claim, the undersigned finds the PCR court's finding that Petitioner failed to establish counsel's investigation or trial preparation was deficient was supported by the evidence in the record. App. 73-75. Additionally, at the plea hearing, Petitioner stated he wished to plead guilty to voluntary manslaughter; that he talked to his counsel about everything that happened; that counsel answered all his questions to his satisfaction; that he did not have any complaints about the way his counsel handled his case; that counsel shared with him the discovery information or evidence; he understood his constitutional rights and that entering a plea gave up those rights; that the facts recited by the solicitor were substantially and essentially correct; Petitioner was pleading guilty freely and voluntarily; and he entered his plea freely, voluntarily, and knowingly. App. 3-6, 9-10. In light of the evidence presented, the undersigned finds the PCR court made reasonable findings of fact and reasonably applied federal law in denying Petitioner's involuntary guilty plea claim.
The undersigned finds Petitioner's ineffective assistance of counsel and involuntary guilty plea arguments are insufficient to satisfy the Strickland test. Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination in finding Petitioner was not prejudiced by trial counsel's purported failure to meet with Petitioner, review discovery, investigate Petitioner's charge, and prepare for trial. Petitioner has also failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding his ineffective assistance of counsel and involuntary guilty plea claims. Accordingly, Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of these issues. Williams v. Taylor, 529 U.S. 420 (2000); Bell v. Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000); 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). The undersigned recommends Petitioner's habeas petition be dismissed.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's Motion for Summary Judgment, ECF No. 28, and the Petition be denied.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 2317
Florence, South Carolina 29503
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).