Opinion
C/A 4:21-1540-JMC-TER
09-07-2022
TYRUS RASHAWN WOODRUFF, Petitioner, v. WARDEN, McCORMICK CORRECTIONAL INSTITUTION, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge.
Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 24, 2021. (ECF No. 1). On September 15, 2021, Respondent filed a motion for summary judgment along with a return and memorandum. (ECF Nos. 25 and 26). The undersigned issued an order on September 16, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (ECF No. 27). Petitioner filed a response on December 16, 2021. (ECF No. 39). Respondent filed a reply on December 29, 2021. (ECF No. 40).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
PROCEDURAL HISTORY
Petitioner, Tyrus Rashawn Woodruff, (Petitioner/Woodruff) is currently confined at the McCormick Correctional Institution pursuant to orders of commitment from the Clerk of Court of Spartanburg County. Petitioner was indicted during the August 2015 term of the Spartanburg County Grand Jury Session for attempted murder, possession of a weapon during commission of a violent crime, three counts of armed robbery, and burglary first degree (dwelling). Petitioner was represented by Public Defenders Paul Kreswell Neely, Clay T. Allen, and Suzanne H. White. The case proceeded to trial with the co-defendant, Tavaris Jaquez Dewberry, before the Honorable J. Derham Cole on February 21, 2017. A jury was qualified and selected, then excused for the day to allow in camera matters to be heard. The next day Petitioner opted to waive his right to a jury trial and pleaded guilty to burglary first degree; attempted murder, possession of weapon during the commission of a violent crime, and one count of armed robbery. In exchange for the plea, the State agreed to recommend a 25-year sentence and to nolle pross the two remaining armed robbery charges.
The State set out the facts for the court and Judge Cole asked Petitioner if he agreed or disagreed with the State's recitation of the facts. Petitioner responded that he agreed. (ECF No. 25-1 at 119-123). The State offered fifty-three exhibits prepared for trial and advised the court of Petitioner's criminal record. Petitioner told the court that he agreed that the State's presentation of his criminal history was correct. (Id.). Judge Cole excepted the plea and then heard from plea counsel on mitigation. Judge Cole sentenced Petitioner to a sentence consistent with the plea negotiations: 25 years for attempted murder, 5 years for the weapons charge, 25 years for burglary, and 25 years for armed robbery, to run concurrent. The State nolle prossed the remaining charges as agreed.
Petitioner did not appeal the plea or sentence.
PCR
Petitioner filed his application for post-conviction relief (PCR) on November 7, 2017. Petitioner was represented by Rodney W. Richey, Esquire. An evidentiary hearing into the matter was convened on February 21, 2018, before the Honorable Michael G. Nettles. At the conclusion of the hearing, Judge Nettles held the record open for additional testimony at a later date. In the interim, on February 26, 2018, the State, without objection from PCR counsel, moved to supplement the record with the trial transcript proceedings that occurred before the plea. Judge Nettles reconvened the hearing on May 31, 2018, heard additional testimony, and took the matter under advisement, allowing counsel to submit proposed orders. On August 8, 2018, Judge Nettles granted the motion to supplement the record. By Order filed October 4, 2018, Judge Nettles denied relief and dismissed the PCR application with prejudice.
PCR Appeal
PCR appellate counsel, Laura M. Caudy of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. On April 11, 2019, appellate counsel filed a Johnson petition in the Supreme Court of South Carolina and raised the following issue:
1. Whether Petitioner's guilty plea was not knowingly, intelligently, and voluntarily made when plea counsel failed to conduct a reasonable investigation, including interviewing an available alibi witness whose credible testimony established that Petitioner was with her and others on the day of the burglary and armed robbery, making it physically impossible for Petitioner to have committed the crime, and where Petitioner was prejudiced because if counsel had interviewed this witness and secured her testimony, Petitioner would not have pled guilty, but would have proceeded to trial?(ECF No. 25-5 at 3 of 17).
Appellate counsel filed a petition to be relieved as counsel. By letter dated April 12, 2019, the Clerk of the Supreme Court advised Petitioner of the right to file a pro se response to the Johnson petition. Petitioner filed a pro se brief on July 30, 2019, and argued that:
Petitioner's guilty plea was not knowingly, intelligently and voluntarily made in accordance with (Boykin v. Alabama) Counsel failed to conduct a reasonable and factual investigation, including interviewing available alibi witnesses, where credible testimony established that petitioner was with others on the day of the burglary and armed robbery, making it physically impossible for petitioner to have committed the
crime. The petitioner was highly prejudiced by counsel's deficient performance because had counsel conducted a factual investigation the outcome would have been different because the petitioner would not have plead[ed] guilty and would have proceeded to trial.(ECF No. 25-7 at 2).
The South Carolina Supreme Court transferred the appeal to the Court of Appeals on July 30, 2019. By Order dated January 14, 2021, the South Carolina Court of Appeals denied the petition and granted appellate counsel's request to be relieved as counsel of record. (ECF No. 25-9). The Court of Appeals issued the remittitur on February 12, 2021, which was filed with the Spartanburg County Clerk of Court on February 17, 2021. (ECF No. 25-10)
HABEAS ALLEGATIONS
Petitioner raised the following allegations in his petition:
GROUND ONE: Trial Counsel was ineffective for coercing petitioner to plea Supporting Facts: Trial counsel told defendant to say yes to the pre-trial inquiry because it was Court formality, trial counsel told petitioner nothing of the telephone evidence until after the jury was picked.
GROUND TWO: Trial Counsel failed to investigate Alibi
Supporting Facts: Petitioner told trial Counsel he was not there and had multiple Alibi Witnesses, trial
Counsel did not investigate Alibi Witness. At PCR Alibi Witness testified that petitioner was with her on the day of the Crime and had just dropped him off moments before he was arrested.
Ground Three: Trial Counsel gave erroneous advice to plea Guilty
Supporting Facts: Trial Counsel told petitioner to answer yes to all the judge's plea inquiry and that it was just court formality just plea guilty and get it over with.
In an addendum, Petitioner raised Ground Four:
Ground Four: Trial counsel was ineffective for not objecting to the admissions of jail phone Records that had not been produce[d] in petitioners Rule 5 and the State sought to introduce as evidence.(ECF No. 1).
Petitioner moved to amend his petition on August 10, 2021 to add a fourth ground. Respondent responded that the motion was futile. However, the court issued the following order:
On August 10, 2021, Petitioner filed a motion to amend his petition pursuant to Rule 15 of the Federal Rules of Civil Procedure to add one ground to his petition which he set out within said motion (ECF # 19). The motion was granted, and Petitioner was instructed that he could file one addendum within fifteen days from the date of the Order to be made a part of his petition and that the addendum and original petition would constitute the entire petition. The addendum/response was due September 15, 2021. On September 20, 2021, Petitioner filed a motion for an extension to allow him to file his addendum due to "McCormick Correctional Institution Covid 19 Quarantine restrictions" as well as Institutional "Lock-Down" status. Petitioner attached the addendum to his motion for extension. Therefore, this motion is granted and the addendum is to be made a part of his original petition. This Order should not be construed as addressing or making any ruling as to the merits or procedural issues with regard to the issue raised in this addendum. (ECF No. 31).
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
STANDARD OF REVIEW
In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the requirements set forth in 28 U.S.C. § 2254. 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.
Thus, a writ may be granted if a state court “identifies the correct principle from [the Supreme] Court's decisions but unreasonably applies that principle of law” to the facts of the case. Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)). However, “an ‘unreasonable application of federal law is different from an incorrect application of federal law,' because an incorrect application of federal law is not, in all instances, objectively unreasonable.” Id. “Thus, to grant [a] habeas petition, [the court] must conclude that the state court's adjudication of his claims was not only incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004). Further, factual findings “made by a State court shall be presumed to be correct,” and a Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
ANALYSIS
In Grounds One, Two, Three, and Four, Plaintiff asserts allegations of ineffective assistance of counsel. Therefore, the law with respect to an ineffective assistance of counsel claim is set forth below.
When presented with an application for habeas relief, the first inquiry by the court is to determine whether the claim raised in the petition was “adjudicated on the merits” by the state court. 28 U.S.C. §2254(d). If the claim was properly presented to the state court and the state court adjudicated it, the deferential standard of review set forth in §2254(d) applies and federal habeas corpus relief may not be granted unless the relevant state-court adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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.” Id. § 2254(d)(1),(2); see Williams v. Taylor, 529 U.S. at 398.
The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In the case of Strickland, supra, the United States Supreme Court set forth two factors that must be considered in evaluating claims for ineffective assistance of counsel. A petitioner must first show that his counsel committed error. If an error can be shown, the court must consider whether the commission of an error resulted in prejudice to the defendant.
To meet the first requirement, “[t]he defendant must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Turner v. Bass, 753 F.2d 342, 348 (4th Cir. 1985) (quoting Strickland), reversed on other grounds, 476 U.S. 28 (1986). In meeting the second prong of the inquiry, a complaining defendant must show that he was prejudiced before being entitled to reversal. Strickland requires that:
[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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Strickland, 466 U.S. at 694.
The court further held at page 695 that:
[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . . the court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. (Emphasis added.)Id.; Williams v. Taylor, 529 U.S. 362 (2000)(confirming the Strickland analysis).
Grounds One and Three
In Grounds One and Three, Petitioner alleges ineffective assistance of trial counsel for allegedly instructing Petitioner to answer yes to the questions of the judge during the plea colloquy as it was just court formality. (Petition). Respondent argues that the statements made by the Petitioner during the plea hearing and the standard plea colloquy are telling and at the time when disclosure of issues with counsel could have been made, Petitioner denied any threats and failed to raise any complaints. Thus, Respondent argues that the record supports the PCR court's factual finding and ruling that Petitioner's plea was voluntary, and was a reasonable application of federal law.
This issue was raised and ruled upon by the PCR court at the evidentiary hearing and raised in the PCR appeal. In the order of dismissal, the PCR court summarized the testimony as follows:
Assistant Solicitor Spencer Smith
Spencer Smith is an assistant Solicitor for the Seventh Circuit Solicitor's office. He became involved with the case when Solicitor Barry Barnette, the lead prosecutor, requested his help. Assistant Solicitor Smith summarized the State's evidence, which included three intruders entered the residence of Marlon Davis shortly before noon; the intruders robbed three men in the house and searched the house for drugs and money; the homeowner, Marlon Davis, was shot twice by two of the intruders; Davis' son identified Applicant in a six pack photo lineup; Davis was
never showed a lineup because he was in the hospital being treated for his gunshot wounds but was prepared to identify Applicant in court; when police arrived to the home within minutes after the burglary, one of the victim's claimed they had tracked their stolen iphone; within approximately twenty minutes, an investigator arrived at the residence to which the iphone had been traced (co-defendant Dewberry's home); the investigator saw a black Dodge Avenger outside the residence which matched the description of the car in which the intruders fled; there were also four men standing outside which he observed until backup arrived; no one left the residence during that time; when backup arrived, they went in to arrest the four men since there were allegations three men entered the residence and one man drove the car; they found the wallets (and contents) of the victims, a letterman jacket belonging to a victim, as well as the stolen iphone at the residence and in the black Dodge; Xavier Martin, a co-defendant, who was a paraplegic and confined to a wheelchair, gave a statement that he was the driver of the car; Xavier Martin had dreads, as the driver of the car; Akia Ross, another victim in the home during the burglary, also gave a statement that none of the intruders had dreads; Davis' son identified Applicant as one of the home intruders; there was a jail call from Applicant's account in which he was heard telling a girl to go back to Dewberry's residence and retrieve both the keys to the black Dodge and a gun he had hidden under the refrigerator; Ms. Dewberry, the owner of the residence at which Applicant was arrested, gave a statement that she witnessed all four men arrive at the same time and together in the black Dodge.(ECF No. 25-2 at 45-46 of 64).
In regard to the issue of ineffective assistance of counsel for advising Petitioner to plead guilty, the PCR concluded as follows:
Improper advice to plead guilty
Applicant alleged Counsel was ineffective for advising him to plead guilty. . .
This Court finds Counsel's advice to plea guilty was reasonable and Applicant has failed to prove, by a preponderance of the evidence, that the advice was somehow improper. First, this Court notes the evidence
against Applicant was strong, as outline[d] above in Assistant Solicitor Smith's testimony. Although Counsel may question his decisions in hindsight, at the time of trial, Counsel was faced with pre-trial rulings that were detrimental to Applicant and his entire defense. Counsel disagreed with Judge Cole's rulings, however, he did not believe they would be likely to prevail on appeal. Weighing the risk of continuing trial, with the almost certainty of Applicant being convicted and sentenced to life imprisonment with the uncertainty of prevailing on appeal and the guarantee of a twenty-five year sentence if Applicant plead guilty, he advised Applicant to plead guilty. Counsel may perpetually question that decision, but regardless, this Court finds Counsel's advice to be reasonable in light of the circumstances. Even Co-Counsel, the Chief Public Defender, agreed and supported the advice to plead guilty.
Applicant asserts he is actually innocent of the crimes to which he pled and therefore Counsel should not have advised him to plead guilty. However, Applicant has provided little, if any, evidence to prove this claim. Counsel believed the evidence against Applicant was sufficient to convict Applicant and this Court views the evidence with that same belief. Therefore, the advice to plead guilty was in Applicant's best interest and was certainly reasonable. This allegation is denied and dismissed.(ECF No. 25-2 at 50-52 of 64).
At the time of the plea, Petitioner stated to the court that the facts cited by the State were true and that he was in fact guilty. (ECF No. 25-1 at 123 and 116 of 223). Petitioner further stated that his attorney had explained all of the charges and the potential sentences, that no-one coerced him or threatened him to plead guilty, no-one promised him anything to cause him to make the decision to plead guilty, he understood his rights and the rights he was waving by pleading guilty, and that he was pleading guilty because he was guilty. (Id. at 107-127). At the PCR hearing, Petitioner testified that Counsel had gone over the third-party guilt defense with him and informed him that the trial judge advised that he was going to deny the motion to present the defense. Counsel and co-counsel testified that considering the motion to present a third-party guilt defense was going to be denied and the evidence the State had to present, they thought it in Petitioner's best interest to enter a plea for a twenty-five year sentence as opposed to a potential life sentence. The PCR court did not misapply the law and found that Petitioner failed to meet the first and second prongs of Strickland. The PCR court's factual determinations regarding credibility are entitled to deference in this action. Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, 220 F.3d 306 (4th Cir. 2000). Based upon the record, the PCR court's rejection of the ineffective assistance of counsel ground for relief was not “contrary to, or involved an unreasonable application of, clearly established Federal law; or did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” § 2254(d)(1), (2); Williams, supra. In this case, Petitioner fails to meet the Strickland test.
Additionally, Petitioner testified at PCR that he pleaded guilty in order to avoid receiving a life sentence. (ECF No. 25-1 at 204 of 223).
Additionally, a plea of guilty is considered by the court to be a solemn judicial admission that the charges against the defendant are true. The defendant may not later argue that his plea was invalid except in extremely limited circumstances, Blackledge v. Allison, 431 U.S. 63 (1977) (explaining that in a very limited number of cases the court will allow a defendant's challenge to his plea on the basis that the plea was "the product of such factors as misunderstanding, duress, or misrepresentation by others," though the allegations must be concrete and specific). “The accuracy and truth of an accused's statements at a Rule 11 proceeding in which his guilty plea is accepted are ‘conclusively' established by that proceeding unless and until he makes some reasonable allegation why this should not be so.” Crawford v. United States, 519 F.2d 347, 350 (4th Cir. 1975). Also, Petitioner stated that he was pleading guilty because he was guilty. Accordingly, it is recommended that Respondent's motion for summary judgment with respect to Grounds One and Three be granted.
See also Bemis v. United States, 30 F.3d 220, 222-23 (1st Cir.1994)(observing general rule that a defendant pursuing habeas relief is "ordinarily bound by his or her representations in court" vis-a-vis a plea); United States v. Butt, 731 F.2d 75, 80 (1st Cir.1984)(affirming denial of habeas motion without a hearing, concluding that the movant's allegations that his attorney had mislead him concerning the judge's acceptance of the plea were "unsupported by specific facts and contradicted by the record," the habeas motion being bare of "credible, valid reasons why a departure from [his] earlier contradictory statements is ... justified," citing Crawford v. United States, 519 F.2d 347, 350 (4 th Cir.1975)).
Ground Two
In Ground Two, Petitioner argues that counsel was ineffective for failing to investigate Petitioner's alleged alibi witnesses. Specifically, Petitioner alleges that he told Counsel about the alibi witnesses but that Counsel did not investigate and talk to the alibi witnesses and present them for testimony. Respondent argues that Petitioner failed to demonstrate prejudice for Counsel's failure to contact his alibi witnesses as he failed to present clear and convincing evidence of an alibi. Respondent asserts that Ebony Tubbs merely said Petitioner was with her the night of the incident on Dean Street and the PCR found this testimony lacked credibility and Petitioner failed to produce the two alleged alibi witnesses either prior to trial, prior to his plea, or prior to either of his PCR hearings. Therefore, Respondent asserts that Petitioner's mere speculation what the witnesses' testimony would have been cannot satisfy the burden of showing prejudice.
This issue was raised at PCR and in the PCR appeal. In the order of dismissal, the PCR noted the alibi's testimony from the evidentiary hearing as follows:
Alibi Witness-Ms. Tubbs
Ms. Tubbs testified that she was with Applicant on the night of July 13, 2015, through the morning of July 14, 2015. Ms. Tubbs testified that she was with a group of eight to ten people at Booker's home until she dropped Applicant off at about noon the next day. Ms. Tubbs testified that she and Applicant were “close friends.” Ms. Tubbs testified that her number and address had not changed since the incident. Ms. Tubbs testified that none of the eight to ten people at Booker's home were contacted about Applicant's case.(ECF No. 25-2 at 46 of 64).
With regard to this issue, the PCR court concluded the following:
Failure to present alibi witness Ebony Tubbs
Although Applicant never informed Counsel of Ebony Tubbs' potential use as an alibi witness, she was called to testify at the PCR hearing. Ms. Tubbs testified that she was Applicant's close friend and she was with him the night before the robbery, along with eight to ten other people. Ms. Tubbs testified that she was the person responsible for driving
Applicant during the night before the alleged crime, as well as the next morning. Ms. Tubbs testified that none of the eight to ten witnesses from Dawkins' home were ever contacted by Counsel. Ms. Tubbs testified that she did not have any children in common with Applicant.
This Court finds that Ms. Tubbs testimony is not credible in light of the record, Applicant's testimony, and of Counsel's credible testimony. First, Ms. Tubbs claims to have been at a get together with eight to ten people, including Applicant, on the night before the burglary. Applicant contradicts this claim by alleging he was with Ms. Tubbs and only three other individuals. Next, Ms. Tubbs stated that no-one was contacted by Counsel in order to testify on Applicant's behalf. Counsel testified that he attempted to contact all of the witnesses provided to him and spoke to at least one of the women at the alleged get-together, but the witness never arrived for a meeting.
Ms. Tubbs testified that she was not the mother of Applicant's child, but that she was with Applicant the night before the burglary. Counsel testified that he spoke to the mother of Applicant's child and that she would have testified that she was with Applicant, instead. Counsel found that this testimony contradicted what Applicant had previously told him and chose not to call her as a witness. Ms. Tubbs testified that she dropped Applicant off at noon, which was after the alleged burglary. The record shows that a witness for the State, Ms. Dewberry, would have testified at trial that Applicant arrived at her home around noon in a car with his co-defendants, including her own son.
Finally, Ms. Tubbs testified that she was not contacted by Counsel prior to Applicant's guilty plea. Counsel testified as to the great lengths he went to contact and interview all of the individuals Applicant informed him would be potential alibi witnesses. This included calling multiple phone numbers, driving to multiple addresses, and enlisting the help of his investigator. Applicant never testified that he informed Counsel of Ms. Tubbs' contact information, even though Ms. Tubbs testified that her number and address have not changed. This Court finds that Counsel testified credibility when stating that he attempted to get in contact with all of the potential witnesses provided to him by Applicant.
This Court finds that Ms. Tubbs was not credible in her testimony, as it conflicts with the record, Applicant's own testimony, and the credible
testimony of Counsel. Counsel was not deficient in failing to call Ms. Tubbs as an alibi witness, because Applicant has failed to show that she was offered to Counsel as a potential witness. Applicant has further failed to show any prejudice, as no evidence was presented to show that absent the deficiency of Counsel, Applicant would have proceeded to trial. Applicant testified that he pleaded guilty in order to avoid a life sentence not because of any failure on the part of Counsel. Applicant has failed to meet his burden of proof. The allegation is denied and dismissed.(ECF No. 25-2 at 48-50)
The PCR court found Ms. Tubbs not credible while finding counsel's testimony credible. The PCR court's factual determinations regarding credibility are 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) (for 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, 103 S.Ct. 843, 74 L.Ed.2d 646, (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”). Based upon the record, the PCR court's rejection of the ineffective assistance of counsel ground for relief was not “contrary to, or involved an unreasonable application of, clearly established Federal law; or did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” § 2254(d)(1), (2); Williams, supra. Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, supra; Wilson v. Moore, supra. In this case, Petitioner fails to meet the second prong of the Strickland test. Therefore, it is recommended that Respondent's motion for summary judgment with respect to Ground Two be granted.
Ground Four
In Ground Four which was added as an addendum, Petitioner argues ineffective assistance of counsel for failing to object to the admission of the jail phone records. Respondent argues that this issue has been defaulted. Respondent asserts that Petitioner failed to raise this claim in his PCR application or his PCR evidentiary hearing and it was not ruled upon by the PCR court.
The United States Supreme Court has clearly stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts, Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings, if a state has procedural rules which bar its courts from considering claims not raised in a timely fashion. The two routes of appeal in South Carolina are described above, (i.e., direct appeal, appeal from PCR denial) and the South Carolina Supreme Court will refuse to consider claims raised in a second appeal which 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. 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).
Although the federal courts have the power to consider claims despite a state procedural bar,
. . . the exercise of that power ordinarily is inappropriate unless the defendant succeeds in showing both “cause” for noncompliance with the state rule and “actual prejudice” resulting from the alleged constitutional violation.Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. at 84 (1977)). See also Engle v. Isaac, 456 U.S. 107, 135 (1982).
Stated simply, if a federal habeas Petitioner can show (1) cause for his failure to raise the claim in the state courts, and (2) actual prejudice resulting from the failure, a procedural bar can be ignored and the federal court may consider the claim. Where a Petitioner has failed to comply with state procedural requirements and cannot make the required showing(s) of cause and prejudice, the federal courts generally decline to hear the claim. See Murray v. Carrier, 477 U.S. 478, 496 (1986).
Even if a Petitioner cannot demonstrate cause for failure to raise a claim, he can still overcome procedural default by showing a miscarriage of justice. In order to demonstrate a miscarriage of justice, a petitioner must show he is actually innocent. See Carrier. 477 U.S. at 496 (holding a fundamental miscarriage ofjustice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of someone who is actually innocent”). Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
To exhaust his available state court remedies, a petitioner must “fairly present to the state court both the operative facts and the controlling legal principles associated with each claim.” Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider only those issues which have been properly presented to the state appellate courts with jurisdiction to decide them. Generally, a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth, 377 F.3d 437; see also Coleman v. Thompson, 501 U.S. 722 (1991). As the court held in Fields v. Stevens, 2014 WL 3728163, at *7 (D.S.C. July 25, 2014):
“Under the well-established doctrine of procedural default, a federal habeas court may not review a claim that a state court has found to be clearly and expressly defaulted under an independent and adequate state procedural rule ....” Weeks v. Angelone, 176 F.3d 249, 269 (4th Cir.1999); see also Lawrence, 517 F.3d at 714 (holding that a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted under independent and adequate state procedural rules). A state procedural rule is considered “adequate if it is regularly or consistently applied by the state courts, and it is independent if it does not depend on a federal constitutional ruling.” McNeill v. Polk, 476 F.3d 206, 211 (4th Cir.2007) (citations omitted). As the record reflects that the PCR court dismissed Fields's 2010 PCR application as successive and untimely under state law without ruling on the merits of the application, the court finds that Ground One is procedurally defaulted. See Hutto v. South Carolina, C/A No. 0:08-2188-TLW-PJG, 2009 WL 2983018, at *6 (D.S.C. Sept.14, 2009) (adopting report and recommendation finding claims dismissed by the PCR court as untimely and successive were procedurally barred); Scott v. Bazzle, C/A Nos. 8:05-2690-GRA-BHH, 8:06-2730-GRA-BHH, 2007 WL 2891541, at *5 (D.S.C. Sept.28, 2007) (adopting report and recommendation and noting that the “South Carolina statute of limitations for PCR applications” is an independent and adequate state ground “which acted as a procedural bar to the petitioner's claims”).
This issue was not raised in the PCR court or on Appeal of the PCR decision. Further, Petitioner did not address this issue in his response to the motion for summary judgment. This issue is procedurally barred from federal habeas review. Accordingly, it is recommended that Respondent's motion for summary judgment be granted with respect to Ground Four.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 26) be GRANTED and any outstanding motions be deemed moot.
Respectfully submitted, The parties' attention is directed to the important notice on the next page.