Opinion
C. A. 9:21-cv-01620-CMC-MHC
01-24-2022
Michael Fitzgerald Wiggleton, Petitioner, v. Jonathan Nance, Warden, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United State Magistrate Judge
Petitioner Michael Fitzgerald Wiggleton (“Petitioner”), a state prisoner proceeding pro se, petitions the court for a writ of habeas corpus under 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 15, 16. On September 30, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's motion by November 1, 2021. ECF No. 17. Petitioner was granted an extension of time to respond, and the Court received and docketed his Response on December 6, 2021. ECF No. 22. Respondent then filed a Reply on December 13, 2021. ECF No. 23.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 16, be granted, and the Petition, ECF No. 1, be dismissed.
I. BACKGROUND
In December 2013, the Spartanburg County Grand Jury indicted Petitioner for possession with intent to distribute cocaine within half a mile of a school. ECF No. 15-1 at 120-21. Shortly 1 thereafter, in January 2014, the Spartanburg County Grand Jury indicted Petitioner for trafficking in cocaine of 400 grams or more, possession of a firearm during the commission of a violent crime, and trafficking in cocaine ten or more grams, second offense. ECF No. 15-1 at 122-25. On October 18, 2016, a hearing was convened before the Honorable J. Derham Cole, Circuit Court Judge, where the State made a record of the plea offer that had been extended to Petitioner. ECF No. 15-1 at 5-16. Petitioner was represented by counsel, John Belton White, Jr., and Ryan Frederick McCardy. ECF No. 15-1 at 3-16. On October 21, 2016, Petitioner accepted the plea offer and pled guilty to the charges of trafficking, second offense, and possession with intent to distribute. ECF No. 15-1 at 18-30. Judge Cole sentenced Petitioner to the negotiated sentence of twelve years for trafficking, consecutive to thirty months for possession with intent to distribute, allowing for Petitioner to complete the thirty months in home confinement. ECF No. 15-1 at 29- 30. Judge Cole also revoked Petitioner's bond on another conviction and set the revocation to run concurrently. ECF No. 15-1 at 29. The remaining charges were dismissed as part of the negotiated plea.
Petitioner did not file a direct appeal.
On April 18, 2017, Petitioner filed a pro se application for post-conviction relief (“PCR”) alleging the following claims:
10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) Ineffective Assistance of Counsel
(b) Coerced into a plea of guilty
(c) Counsel did not impart to the applicant an understanding of the law on the relation of the facts
11. State concisely and in the same order the facts which support each of the grounds set out in (10):
(a) Counsel failed to articulate 4th amendment violation2
(b) Counsel did not familiarize himself with the facts of the case.
(c) Counsel failed to take me to trialECF No. 15-1 at 33-34. On November 7, 2018, after briefing by the State, the Honorable J. Mark Hayes, III, Circuit Court Judge, held an evidentiary hearing, at which Petitioner was represented by Rodney W. Richey (“PCR Counsel”). ECF No. 15-1 at 47-97. At the start of the hearing, PCR counsel informed the court that Petitioner wished to add the claim that plea counsel was ineffective for failing to advise Petitioner of his right to appeal. ECF No. 15-1 at 51. The court heard testimony from Petitioner and plea counsel, Ryan McCarty. ECF No. 15-1 at 48. On January 22, 2019, the PCR court denied Petitioner's PCR application and dismissed it with prejudice. ECF No. 15-1 at 99-108. The PCR court then issued an amended order finding the same on January 25, 2019. ECF No. 15-1 at 109-18.
Petitioner timely appealed. Appellate Defender Victor R. Seeger appealed the PCR court's decision through a Johnson petition for writ of certiorari and presented one issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors in 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 plea counsel provided ineffective assistance of counsel when he failed to inform Petitioner, prior to pleading guilty, that he could have challenged the legality of the pat down search during the traffic stop, where the police officers who conducted the search gave contradictory reasons as to why reasonable suspicion existed to search Petitioner's person, and where the rest of the evidence against Petitioner stemmed from that illegal search?ECF No. 15-3 at 3. Petitioner also filed a pro se brief raising the following issues:
1. Was the Petitioner afforded an entire PCR circumstance where his defense counsel refused to either his (Pet.) Amended Application (APCR) or the (59(e)) Motion to Reconsider being submitted as part of the Appellate record?3
2. Did the PCR court err in its assessments and rulings rendered in its Final Order of Dismissal?ECF No. 15-5 at 3. The Supreme Court of South Carolina transferred the case to the Court of Appeals. ECF No. 15-6. The Court of Appeals denied certiorari on November 25, 2020. ECF No. 15-7. The remittitur was issued on December 15, 2020, and it was filed with the Spartanburg County Clerk of Court on December 23, 2020. ECF No. 15-8.
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To 4 survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). However, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep 't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
B. Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). ECF No. 1. Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under § 2254(d):
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the State court proceeding.5 28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, ” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”).
A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under § 2254(d)(1) focuses on what a state court knew and did, ” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus, ] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 410. Further, factual findings “made by a State court shall be 6 presumed to be correct, ” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
C. 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. Id. The separate but related theories of exhaustion and procedural default/bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before a petitioner has appropriately exhausted available state-court remedies or after a petitioner has otherwise defaulted/bypassed seeking relief in the state courts will be dismissed absent unusual circumstances, as detailed below.
1. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies. See 28 U.S.C. § 2254(b)-(c). The statute requires that, before seeking habeas corpus relief, a petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Stated plainly, in the interest of giving state courts the first opportunity to consider alleged constitutional errors in state proceedings, a § 2254 petitioner is required to “exhaust” all state remedies before a federal district court can entertain his claims. Thus, a federal habeas 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. 7 Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will generally result in the application of a procedural bar by the South Carolina Supreme Court. See Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009) (discussing procedural bar and noting the “general rule” in South Carolina is that where a party fails to file a Rule 59(e) motion, the argument is forfeited). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45. In South Carolina, a claim is not procedurally barred from review in this Court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals. See Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (S.C. 1990) (“[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”).
2. Procedural Default/Bypass
When a federal habeas petitioner has failed to raise a claim at the appropriate time in state court and has no further means of bringing that issue before the state courts, the claim will be considered procedurally defaulted, and he will be procedurally barred from raising the issue in his federal habeas petition. Smith v. Murray, 477 U.S. 527, 533 (1986). This situation is sometimes referred to as procedural bypass, as the petitioner has “bypassed” his state remedies. In other words, procedural default/bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Id. Procedural default/bypass can occur at any level of the 8 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. See, e.g., Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. 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). If a federal habeas petitioner has procedurally defaulted his opportunity for relief in the state courts, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear. Teague v. Lane, 489 U.S. 288, 297-98 (1989).
3. Cause and Actual Prejudice
Notwithstanding the foregoing, a federal court may consider claims that have not been presented to the highest South Carolina court with jurisdiction in very limited circumstances. See Granberry v. Greer, 481 U.S. 129, 131 (1987). Indeed, because the requirement of exhaustion is 9 not jurisdictional, this Court may consider claims that have not been presented to the state's courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or by “prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008).
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. Murray v. Carrier, 477 U.S. 478, 488-97 (1986). Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (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. 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. Id. at 496.
III. DISCUSSION
Petitioner raises the following grounds for relief in his Petition:
Ground One: Due Process Violation(s) - 14th Amendment - illegal search and seizure, during a pat-down
Supporting Facts: a.) Petitioner was involved in a - moving violation - traffic stop. (Terry)
b.) During the stop, the also involvement of the Petitioner was participation in a pat-down (alleged) Frisk, where drugs were found on his person, and confiscated.
c.) During the initial stages, the Petitioner was asked for consent to be searched and consent was Denied.
Ground Two: Due Process violation: illegal search & seizure of properties in the Petitioner's residence.10
Supporting Facts: a.) After the alleged illegal detainment and arrest the Petitioner's vehicle was seized, along with a set of keys to 296 Pine Lake Ct. (See Att.).
b.) After procurement of a search warrant officers with the Spartanburg Co. Police executed seizure of various articles - (legal and illegal), without service upon the Petitioner.
c.) After seizures, a forfeiture form was offered. Unbeknownst Then, the Petitioner avers that: As the arrest pursuant to the traffic stop was illigitimate, the ensuing search of the premises, and any confiscations thereto, are and should be considered, “Fruit of the Poisonous Tree.”
Ground Three: Ineffective Assistance of Counsel - (Trial) Defense
Supporting Facts: a.) During the course of representation, before the Petitioner's General Sessions appearance, defense counsel prepared and presented a summized portfolial, depicting the illegitimacy of the property search warrant.
b.) Yet, there was no illegality proposed with the traffick stop.
c.) Subsequently, Petitioner pled guilty, with no argument thereto.
Ground Four: Due Process Violation - (PCR - Level)
Supporting Facts: a.) Barring the premise of “hybrid representation it was the Petitioner's intention to have submitted both his Memorandum of Law In Support of his (APCR), prior to the hearing, and
b.) the 59(e) Motion to Reconsider the ruling of the Final Order of Dismissal.ECF No. 1 at 5-10 (errors in original).
Respondent asserts that Ground Three is the only ground that is properly before the court for habeas review, as both Grounds One and Two are barred by Stone v. Powell, 428 U.S. 465 (1976), and Ground Four is not cognizable. ECF No. 15 at 1.
A. Grounds One and Two
In Ground One, Petitioner alleges his Fourth Amendment rights were violated by an illegal pat down that was initiated after he was pulled over for a traffic violation. ECF No. 1 at 5. In 11 Ground Two, Petitioner asserts that his Fourth Amendment rights were again violated when the police subsequently searched his residence. Id. at 6-7. Respondent argues that both Ground One and Ground Two are barred from federal review by the Stone doctrine and are procedurally defaulted. ECF No. 15 at 1, 12-13.
Under the Stone doctrine, a federal court will not grant habeas relief based on a Fourth Amendment violation if the State provided an opportunity for full and fair litigation of the claim. See Stone v. Powell, 428 U.S. 465, 482 (1976). Here, Petitioner had the opportunity to raise his Fourth Amendment claims during a trial, but he elected to plead guilty to avoid a potential sentence of life without parole. See ECF No. 15-1 at 5-16, 20-30. Petitioner did not raise any freestanding Fourth Amendment claims; however, in his PCR action, Petitioner argued that plea counsel were ineffective for failing to advise him that there were Fourth Amendment claims he could have raised regarding the initial pat down and the search of his residence. See ECF No. 15-1 at 115. In his response, Petitioner indicates that he seeks to have the Court consider his freestanding Fourth Amendment claims and his claim that plea counsel were ineffective for failing to raise the alleged Fourth Amendment violations. ECF No. 22 at 8-9. However, Petitioner does not address the Stone doctrine, and he offers no basis for the Court to consider his freestanding claims. The ineffective assistance of counsel claim was properly raised to and ruled upon by the PCR court and will be addressed below. As to Petitioner's freestanding Fourth Amendment claims, they are both procedurally defaulted and barred by the Stone doctrine, and the Court thus recommends granting Respondent's Motion for Summary Judgment as to Ground One and Ground Two.
B. Ground Three
As referenced above, in Ground Three, Petitioner alleges plea counsel were ineffective in how they handled a potential Fourth Amendment claim. ECF No. 1 at 8. Specifically, Petitioner 12 indicates that plea counsel prepared arguments as to why the search of his residence was illegal, but they did not prepare arguments as to any constitutional violations that occurred pursuant to the traffic stop. Id. In any event, Petitioner notes he eventually pled guilty, and no Fourth Amendment arguments were ever made. Id. Respondent contends that the PCR court properly considered and rejected Petitioner's arguments that plea counsel were ineffective for failing to raise arguments against the searches and seizures that followed Petitioner's traffic stop. ECF No. 15 at 24-26.
Some background information from Petitioner's guilty plea proceedings is helpful in putting this claim into context. Because of his prior drug-related convictions, Petitioner was facing life without parole had he been convicted of the trafficking charges against him in this case. ECF No. 15-1 at 5-16. He was offered a negotiated sentence of fourteen and a half years, with two and a half of those years to be on home detention, and he was given a deadline to accept the guilty plea. Id. at 11. On October 21, 2016, Petitioner accepted the offer from the State and pled guilty to trafficking in cocaine, second offense, and possession with intent to distribute cocaine within half a mile of a school. Id. at 21. The prosecutor recited the following facts as to those charges:
This dates to June 28th of 2013. Officers with the city police department, Spartanburg City, were on patrol in the area of Arch Street and Howard Street. They got behind the vehicle being given [sic] by the defendant. He turned left without using a turn signal. Then they paced him at going 45 in a 30-mile-per-hour zone.
They initiated a traffic stop. Based on his actions, it appears that he was trying to hide something under the seat. They got him out and were questioning him about that, which led to a patdown of his person. And they found a bulge in his pocket which they immediately believed to be narcotics. They weighed it out on the street at 16 grams. In the lab it weighed out at 13.73 grams of cocaine.
He has prior drug convictions in 1990 for trafficking in cocaine, possession with intent to distribute crack cocaine; also, 2012 possession of cocaine; 2012, possession with intent to distribute within a half mile. Therefore making these at least a second offense.
This stop was within a half mile of the Woodland Heights Elementary School on John White Boulevard, which gives rise to the half-mile charge.13
Other convictions on his record are driving under suspension, three counts, 1990; also, false information to police and failure to stop for a blue light in 1990.
Your Honor, in exchange for this plea we're also dismissing a second count. There was a search warrant done at the defendant's residence pursuant to this traffic stop and other information. Another large quantity of drugs were found, but based on this negotiated plea that would be dismissed.Id. at 26-27. Petitioner told the plea court that he agreed with what the prosecutor had stated. Id. at 27.
At the PCR evidentiary hearing, Petitioner testified that he believed the pat down conducted by the police after pulling him over was unlawful because their search should have been limited to weapons. Id. at 57-58. Petitioner additionally testified that police did not have probable cause to search him. Id. at 59. According to Petitioner, plea counsel never advised him of any such defense. Id. at 56. On cross-examination, Petitioner testified that plea counsel had told him he had a “zero percent chance at winning[, ]” Id. at 65, and he was initially very happy with the plea deal counsel had secured, Id. at 66. However, he stated, “if they would have told me this could be illegal search and seizure, you have a Fourth Amendment violation, I would have never pled guilty. They didn't mention it. They didn't tell me nothing about it.” Id. at 66.
During Plea Counsel McCarty's testimony, he indicated that Petitioner's understanding of Terry was “kind of a common lay person's understanding, ” but McCarty and the other attorney representing Petitioner believed there was precedent in both state and federal law that rendered the pat down reasonable. Id. at 77-79. Specifically, McCarty noted, “[I]f the conclusion was that [the officer] recognized, and based on his training and experience, what the object was that he could make that determination and retrieve that item based on him believing that it was a controlled substance or something like that.” Id. at 79. As to the search of Petitioner's residence, McCarty testified, “I felt that had we challenged the search warrant based on the affidavit of the search 14 warrant we may have prevailed on that issue.” Id. at 89. He testified that he advised Petitioner of as much. Id. at 88-89. However, even if the defense team had been successful in challenging the search of Petitioner's residence, McCarty saw no defense to the traffic stop, which meant Petitioner was still facing a trafficking charge that would result in a sentence of life without parole if Petitioner was found guilty. Id.
The PCR court denied and dismissed this claim based on the following:
Applicant alleges Counsel rendered ineffective assistance of counsel, because Counsel did not explain how the search of law enforcement violated his 4th amendment rights. Applicant alleges that if he had known he would have a possible defense of the traffic stop and subsequent search, he would not have pleaded guilty. Applicant has failed to show Counsel rendered deficient performance. Applicant testified that the search of his person by law enforcement following his traffic stop was a violation of 4th amendments rights, but failed to show why it was a violation. Counsel testified that although he believed Applicant had a viable challenge to the later search of his home, there was no legal challenge to the initial stop and frisk of Applicant by law enforcement. This Court finds Counsel's testimony on this allegation credible.
Assuming, arguendo, Applicant was unaware that he could have challenged the Terry search after the traffic stop and his lack of said knowledge was the fault of his lawyers, no showing has been made that such a challenge would have been successful in excluding the evidence. Therefore, Applicant has not successfully established the prejudicial element necessary for ineffective assistance of counsel. Applicant has failed to meet his burden of proof. The allegation is denied and dismissed with prejudice.Id. at 115. As set forth above, the PCR court's decision depends, in part, on the determination that plea counsel credibly testified that he believed there was no viable challenge to the traffic stop. Petitioner has failed to show any reason this court should question the PCR court's credibility finding. See Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (noting, absent “stark and clear” error, federal habeas courts cannot overturn a state court's credibility determination, and have no license to redetermine credibility of witnesses whose demeanor has been observed by the state court); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives 15 federal habeas courts no license to redetermine the 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)). He has not done so.
Nor has Petitioner shown that the PCR court's decision is contrary to, or demonstrates an unreasonable application of, federal law. Here, the PCR court considered the two prongs of an ineffective assistance of counsel claim as required by the applicable Supreme Court law in Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985). Under Strickland, a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-96. A court's evaluation under this standard must be “highly deferential, ” so as to not “second-guess” counsel's performance. Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks and citation omitted). To show prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In the context of a guilty plea, prejudice equates to a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial. Hill, 474 U.S. at 59. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 16
Petitioner focuses his arguments primarily on the challenge he believes plea counsel should have made to the pat down. He asserts, “Petitioner will show this Court that Officer Morrow manipulated Petitioner's pocket and the contents by ‘rubbing' Petitioner's pocket rather than properly adhering to Terry frisk procedures by ‘patting' Petitioner down for weapons.” ECF No. 22 at 13. Petitioner now offers the incident report from the traffic stop where cocaine was found in his pocket. See ECF No. 1-1 at 4-5. Even if the court were to consider that evidence and assume it to be true, the evidence referenced by Petitioner does not demonstrate that the police officer's pat down was unconstitutional. Indeed, as recognized in Minnesota v. Dickerson, 508 U.S. 366 (1993), one of the cases on which Petitioner relies,
Petitioner references a supplemental narrative statement by Officer Morrow, but it does not appear that he included that statement in the attachments to his petition.
“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). It does not appear this same evidence was presented to the PCR court, but even if it had been, it does not show that there was merit to Petitioner's Fourth Amendment claim.
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.508 U.S. at 375-76. Only when an officer conducts a search that goes beyond what Terry prescribes, such as by over-manipulating an object in a suspect's pocket that has already been determined not to be a weapon, is the search rendered unconstitutional under Dickerson. Id. at 378-79. While Petitioner asserts he “will show” this court that the police rubbed his pocket rather than patted him down in searching for weapons, he did not present such evidence at his PCR evidentiary hearing, and even now, the evidence he points this court to does not demonstrate that the pat down conducted by police in his case violated Dickerson. As such, the arguments he offers do not demonstrate that the PCR court unreasonably found plea counsel were not deficient for 17 failing to challenge the traffic stop.
For all of the above reasons, Petitioner has failed to meet his burden under § 2254 as to his Ground Three assertion that the PCR court erred in denying his claim of ineffective assistance of counsel. As such, the Court recommends granting summary judgment as to this ground.
C. Ground Four
In Ground Four, Petitioner argues his due process rights were violated at the PCR level- in particular, because he was represented by counsel, he was not permitted to submit a memorandum in support of his PCR application, nor was he able to submit a Rule 59(e) motion to reconsider. ECF No. 1 at 10. Initially, to the extent Petitioner's Ground Four could be construed as a claim that his due process rights were violated by the PCR court, such an alleged infirmity would not be a proper basis for federal habeas relief. See Bryant v. Maryland, 848 F.2d 492, 494 (4th Cir. 1988) (holding claims of error occurring in state post-conviction proceedings cannot serve as a basis for federal habeas relief); see also Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (“An attack on a state habeas proceeding does not entitle the petitioner to habeas relief . . . .”). Similarly, to the extent Petitioner is alleging PCR counsel was ineffective for failing to submit those documents, such claims are disallowed as a basis for habeas relief under the AEDPA. 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”).
In his response, Petitioner indicates that he means to raise this issue under Martinez v. Ryan, 566 U.S. 1 (2012), “seeking to bring to this Court's attention, PCR Counsel's refusal to amend his PCR application, submit his memorandum in support and its attachments for the Court's review in his PCR action.” ECF No. 22 at 16-17. Martinez allows a court to consider such an 18 ineffective-assistance-of-PCR-counsel claim as cause for the procedural default of an ineffective-assistance-of-trial-counsel claim. Martinez, 566 U.S. at 13. Here, Petitioner has failed to identify any procedurally defaulted claim of ineffective assistance of plea counsel that he wants to raise. As such, Martinez is not applicable. Petitioner has failed to articulate a proper basis for habeas relief in Ground Four, and the Court thus recommends granting summary judgment as to this ground.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 16) be GRANTED, and the Petition be DISMISSED with prejudice.
The parties are directed to the next page for their rights to file objections to this recommendation. 19
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). 20