Opinion
2:23-cv-00722-BHH-MGB
08-29-2023
Darrell L. Goss, Sr., #305517, Petitioner, v. Shane D. Jackson, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Darrell L. Goss, Sr., a pro se state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. Nos. 1, 8-1.) This matter is before the Court on Respondent's Motion to Dismiss. (Dkt. No. 11.) Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned United States Magistrate Judge is authorized to review the Petition and submit findings and recommendations to the United States District Judge. For the reasons discussed herein, the undersigned RECOMMENDS that Respondent's Motion to Dismiss (Dkt. No. 11) be DENIED.
The undersigned takes judicial notice of the records filed in Goss's underlying state court action (Case No. 2011-CP-1003782), prior habeas action (Case No. 2:18-CV-02938-BHH-MGB), and currently pending habeas action (Case No. 2:22-CV-00103-BHH) for purposes of the Background and Procedural History sections of this Report and Recommendation. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-CV-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites).
On June 14, 2007, five African American men robbed the Urban Wear clothing store in North Charleston, South Carolina. One of the men, Joy Mack, beat the store's owner, Andy Ayazgok, with a gun, then the men tied the hands and feet of both Mr. Ayazgok and his assistant, and stole money from Mr. Ayazgok's pocket and his wallet, along with merchandise from the store. (Case No. 2:22-CV-00103-BHH, Dkt. No. 48-1 at 1171-78.) Mr. Ayazgok was later able to identify Mack as his assailant but could not describe or identify the other four men. (Id.) However, law enforcement received a tip that Goss and his brother may have been involved. (Case No. 00103, Dkt. No. 48-2 at 20-21.) Fresh fingerprints lifted from the store's door shortly after the robbery matched Goss's and officers were able to obtain a search warrant for Goss's home and any car at the home. (Case No. 00103, Dkt. No. 48-1 at 317-18.) When officers executed the warrant, they found Goss hiding behind a washing machine. (Id. at 325.) They also found some of the stolen merchandise in a bedroom and a revolver covered in Mr. Ayazgok's blood in a car parked outside. (Case No. 00103, Dkt. Nos. 48-1 at 316-28, 48-2 at 28, 61.) Mack and Goss were arrested but the other three men were never identified.
In September 2007, the Charleston County Grand Jury indicted Goss for armed robbery, assault and battery with intent to kill, and kidnapping. (Case No. 00103, Dkt. No. 48-3 at 20510.) Mack and Goss were tried together before the Honorable J.C. Nicholson in February 2009. (Case No. 00103, Dkt. No. 48-1 at 3.) Goss was represented at trial by attorney James Smiley. (Id.) The jury found Goss guilty as charged and Judge Nicholson sentenced him to twenty years imprisonment for each offense, to run concurrently. (Case No. 00103, Dkt. No. 48-3 at 45-46 (verdict), 55-56 (sentence).)
Goss filed a timely appeal presenting two issues:
I. Whether the trial court erred in overruling defense counsel's objection to the solicitor's burden shifting closing argument?
II. Whether the trial court erred in refusing to allow defense counsel to impeach the victim with a pending charge of counterfeiting goods?(Case No. 00103, Dkt. No. 48-3 at 69.) The South Carolina Court of Appeals affirmed Goss's convictions and sentence on May 17, 2011. (Case No. 00103, Dkt. No. 48-3 at 91-92).
Shortly thereafter, Goss filed a pro se application for post-conviction relief (“PCR”) alleging his trial counsel had been ineffective for failing to present an alibi defense, properly investigate the case, present reliable and credible rebuttal witnesses, and provide Goss with discovery material. (Id. at 93-98, 102-09.) Judge Jefferson denied and dismissed Goss's PCR application on November 23, 2011. (Id. at 191-202.) Goss appealed the decision, (id. at 203), and the Court of Appeals affirmed, (Case No. 00103, Dkt. No. 48-4). Goss filed a petition for rehearing, which the Court of Appeals denied. (Case No. 00103, Dkt. No. 48-5.) Goss appealed that decision through a petition for writ of certiorari (Case No. 00103, Dkt. No. 48-6), which the Supreme Court granted on October 19, 2017 (Case No. 00103, Dkt. No. 48-8). The court remanded the matter for a de novo PCR hearing. (Case No. 00103, Dkt. No. 48-9 at 6.)
Before returning to circuit court for his second PCR hearing, Goss unsuccessfully sought relief from this Court and the Fourth Circuit Court of Appeals. See Goss v. Williams, C.A. 2:18-02938-BHH (federal habeas petition filed October 30, 2018 and dismissed without prejudice while Goss pursued PCR remedies on January 31, 2020); Goss v. Williams, No. 20-6181 (4th Cir. Filed Feb. 6, 2020) (appeal to the Fourth Circuit); Goss v. Kendell, 2:20-04133-BHH (federal habeas petition filed November 30, 2020 and summarily dismissed without prejudice on May 17, 2021); Goss v. Kendall, No. 21-6819 (4th Cir. Aug. 7, 2021) (unpublished) (denying Goss's appeal of the District Court's summary dismissal).
On December 8, 2021, the Honorable Jennifer B. McCoy held a second, de novo, PCR hearing. (Case No. 00103, Dkt. No. 48-10.) Judge McCoy granted Goss's motion to relieve his counsel and Goss proceeded pro se. (Id. at 2-11.) Judge McCoy denied and dismissed Goss's PCR application on June 14, 2022. (Case No. 00103, Dkt. No. 48-11.)
Goss filed a pro se notice of appeal to the South Carolina Supreme Court, along with a motion to proceed pro se and to expedite review. (Case No. 00103, Dkt. No. 48-12.) The court denied both motions. (Case No. 00103, Dkt. No. 48-13.) Goss moved the court to reconsider his motion to proceed pro se and was informed the court did not entertain requests for rehearing on non-dispositive matters. (Case No. 00103, Dkt. No. 48-14.) Goss then attempted to file an amended pro se notice of appeal. (Case No. 00103, Dkt. No. 48-15.) On October 24, 2022, the South Carolina Supreme Court dismissed Goss's appeal based on his failure “to submit the name of an attorney or provide[] proof that he has filled out and submitted an affidavit of indigency with the Division of Appellate Defense” as the court had instructed in a September 19, 2022 letter. (Case No. 00103, Dkt. No. 48-16.) The matter was remitted to the lower court on November 9, 2022. (Case No. 00103, Dkt. No. 48-17.)
PROCEDURAL HISTORY
On January 12, 2022, prior to the conclusion of his PCR proceedings, Goss filed a petition for writ of habeas corpus. (Case No. 00103, Dkt. No. 1.) The undersigned initially recommended the petition be summarily dismissed. (Case No. 00103, Dkt. No. 5.) After the South Carolina Supreme Court dismissed his appeal, Goss moved this Court to reconsider its recommendation and filed another habeas petition, which was docketed as a separate action. (Case No. 00103, Dkt. No. 18; Case No. 2:22-CV-04048-BHH-MGB, Dkt. No. 1,). The Court consolidated the two actions and instructed that both petitions be considered as a single pleading. (Case No. 00103, Dkt. No. 24.) Shortly thereafter, Goss filed an amended petition. (Case No. 00103, Dkt. No. 27.) The undersigned entered a text order instructing Goss that he must file a motion to amend along with his amended petition and giving him 30 days to do so. (Case No. 00103, Dkt. No. 28.) Goss filed a motion to reconsider the text order, arguing he was permitted to amend as a matter of course under the rules because he filed his amendment within 21 days of service of the petition and before the Warden filed a response. (Case No. 00103, Dkt. No. 30.) On December 15, 2022, the undersigned granted Goss's motion to reconsider and clarified that the amended petition was now “the controlling petition in this habeas action.” (Case No. 00103, Dkt. No. 31.)
In that amended petition, Goss presented the following grounds for relief (verbatim):
Ground One: Ineffective Assistance of Counsel
Supporting Facts: Trial counsel was ineffective for his improper argument during the directed verdict stage, where he conceded to Petitioner's case being submitted to the jury under the “hand of one, hand of all” theory [of accomplice liability] despite the State's failure to produce “any evidence” of a prior plan or scheme, or, of Petitioner's participation in the crime, which are essential elements of the criminal offense charged.
Ground Two: Ineffective Assistance of Counsel
Supporting Facts: Trial counsel was ineffective for failing to object to the “hand of one, hand of all” jury charge where there was “no evidence” in the record to support the charge. Additionally, the charge did not mention a prior plan or scheme; nor did it include instructions on mere presence.
Ground Three: Unfair Trial/Due Process Violation
Supporting Facts: The State failed to present “any evidence” or “sufficient evidence” of Petitioner's guilt [under the hand of one, hand of all theory] beyond a reasonable doubt.(Case No. 00103, Dkt. No. 27 at 5, 7, 8.)
On March 1, 2023, the Warden filed a return and motion for summary judgment. (Case No. 00103, Dkt. Nos. 48, 49.) Petitioner filed a response and cross-motion for summary judgment on March 27, 2023. (Case No. 00103, Dkt. No. 55.) Petitioner subsequently filed a motion to strike and motion in limine, to which the Warden timely replied. (Case No. 00103, Dkt. Nos. 63, 65, 66.) On August 9, 2023, the undersigned issued an Order and Report and Recommendation ordering that Goss's motion to strike and motion in limine be denied, and recommending that the Warden's motion for summary judgment be granted and Goss's cross-motion for summary judgment be denied. (Case No. 00103, Dkt. No. 71.) The District Judge has not yet ruled on the undersigned's Report and Recommendation.
While Goss's previous habeas petition was still pending, he filed the instant Petition. (Dkt. No. 1.) In the instant Petition, which was filed on February 23, 2023, he alleges one ground for relief: “Due Process Violation.” (Id.; Dkt. No. 8-1.) In support of this ground for relief, Petitioner alleges (verbatim):
A. SCDC erroneously has Petitioner serving more than eighty-five percent (85%) of his sentence. Petitioner was sentenced to twenty (20) years imprisonment. However, under state law, he can be release from custody after seventeen (17) years. June 14, 2024 Petitioner will have completed 17 years day-for-day. But SCDC has miscalculated his time, effecting Petitioner's release date.
B. The state erroneously has pending charges against Petitioner, which is consequently, effecting his eligibility for early release under new state law. Although all of petitioner's charges, including pending charges, were dispose of after his 2009 conviction, those same exact charges are still showing to be active, which is effecting petitioner's prison classification custody level and his early release opportunity.
C. The state erroneously has petitioner classified as a sex offender [due to a kidnapping conviction] which is consequently, effecting his eligibility for early release under new state law. Petitioner's kidnapping conviction do not include acts of sexual misconduct and therefore, doesn't qualify him to register as a sex offender under state law. But that finding wasn't made by the sentencing court as required by state law and therefore, consequently, petitioner is presumed to be a sex offender, which is effecting his prison classification custody level and his early release opportunity.(Dkt. No. 8-1 at 7-8.)
On June 6, 2023, Respondent moved to dismiss the instant Petition for lack of jurisdiction. (Dkt. No. 11.) By order of this Court filed on June 20, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the possible consequences if he failed to respond adequately to Respondent's Motion. (Dkt. No. 12.) On July 5, 2023, Petitioner filed a response in opposition to the Motion. (Dkt. No. 14.) Respondent replied on July 12, 2023. (Dkt. No. 15.) As such, the Motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
Habeas corpus in federal court exists to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation and internal quotation marks omitted). Federal habeas is neither an alternative to state-court relief nor an additional chance to appeal erroneous state-court rulings. See id. That preference for, and deference to, state courts is borne out in the various constraints placed on federal courts. See Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (stating § 2254 “imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases”); see also Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (stating § 2254 “reflect[s] a presumption that state courts know and follow the law” (citation and internal quotation marks omitted)).
Before seeking relief in federal court, state prisoners must first pursue all relief available in the state courts. See § 2254(b)(1). In other words, a state prisoner must present his claims to the highest state court with jurisdiction to decide them. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). This is known as exhaustion of remedies. Id. A federal court cannot grant a prisoner's habeas corpus petition until he exhausts his state-court remedies. § 2254(b)(1), (c). A state prisoner must also ensure that his claims are not procedurally defaulted. A claim may be procedurally defaulted if a prisoner failed to present such claim to the state courts at the appropriate time and has no means of doing so now. Stewart, 701 F.Supp.2d at 790. Federal courts may not consider a procedurally defaulted claim unless the prisoner shows either that he has cause for defaulting and that the alleged violation of federal law prejudiced him or that not addressing the claim would be a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
DISCUSSION
I. Arguments
Respondent moves to dismiss the instant Petition, arguing for dismissal under 28 U.S.C. § 2244(b) and the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). (Dkt. No. 11 at 2.) Respondent first asserts that Petitioner's claims here “have no correlation to Petitioner's outstanding habeas claims.” (Id.) According to Respondent, “[t]he Petition violates the prohibition against filing ‘second or successive' habeas petitions absent authorization from the Circuit Court.” (Id.) Respondent contends that Petitioner has not received the requisite authorization for the Fourth Circuit, so this action must be dismissed. (Id.)
In response, Petitioner asserts that his “first habeas petition is still pending before the Court,” and “there has never been an adjudication on the first petition.” (Dkt. No. 14 at 1.) Petitioner therefore claims that the instant Petition cannot be considered second or successive. (Id.) Rather, Petitioner claims that the Court should instead treat his Petition as an amendment to his original Petition. (Id. at 1-2.)
Respondent argues that “it would be prejudicial to Respondent to permit amendment or consolidation in this matter, so as to permit Petitioner to include three new claims entirely separate from his existing grounds for relief.” (Dkt. No. 11 at 3.) Respondent contends that amendment is inappropriate because “Petitioner's claims do not correspond to any of his direct appeal or PCR claims” and are therefore procedurally defaulted. (Id.)
Respondent further argues that amendment is futile because “Petitioner's allegations would not be cognizable for relief under 28 U.S.C. § 2254.” (Id.) Respondent believes that Petitioner's claims are “only proper under § 2241,” and that because Petitioner “is challenging computations of time and parole eligibility under state court convictions on the basis of state law,” he is not entitled to federal habeas relief. (Id.; Dkt. No. 15 at 1.) Respondent asserts that-even if Petitioner's claims could be considered cognizable-they are barred because he has not exhausted his administrative remedies. (Dkt. No. 15 at 2.)
Petitioner disagrees with Respondent's assertions, stating that “claims regarding the miscalculation of Petitioner's mandatory parole release date, and his early release eligibility, [] are cognizable claims for relief under 28 U.S.C. § 2254,” and that he has “exhausted his claims through the administrative procedure,” making them “ripe for federal habeas review.” (Dkt. No. 14 at 2.) The undersigned considers these arguments, below.
II. Analysis
The undersigned first considers Respondent's assertion that the instant Petition is successive and should therefore be dismissed. Based on the record before the Court at this time, the undersigned finds this assertion unconvincing. As the Fourth Circuit has explained, “[a]lthough Congress did not define the phrase ‘second or successive' in § 2244(b)(3), it does not simply refer to all habeas filings made second or successively in time, following an initial application.” In re Torrence, 828 Fed.Appx. 877, 880 (4th Cir. 2020) (internal quotation and citation omitted). “To decide what qualifies as second or successive, we must ask whether a type of later-in-time filing would have constituted an abuse of the writ, as that concept is explained in [pre-AEDPA] cases.” Id. “Generally, ‘new claims raised in subsequent habeas petitions [are] “abusive” if those claims were available to the petitioner at the time of a prior petition's filing.'” Id. (quoting In re Wright, 826 F.3d 774, 784 (4th Cir. 2016)). Here, the Court simply does not have enough information to make this determination. The Petition does not indicate when Petitioner discovered that he was not eligible for parole, nor whether his claims regarding parole eligibility were available to him at the time he filed his prior petitions. (Dkt. No. 1, 8-1.)
Similarly, the Court does not have enough information to determine whether Petitioner should be allowed to amend his prior Petition or whether such amendment would be futile. With respect to Respondent's claim that Petitioner's sole ground for relief is procedurally defaulted, dismissal on this basis would be premature. Even assuming, arguendo, that the claims in the instant Petition are procedurally defaulted, Petitioner may overcome the procedural default and have his claims considered by this Court if he 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.” Coleman, 501 U.S. at 750. Petitioner must be given an opportunity to make this showing.
In the same vein, dismissing the Petition for failure to exhaust would be inappropriate at this juncture. In his response to the Motion to Dismiss, Petitioner claims that he “exhausted his claims through the administrative procedure,” making them “ripe for federal habeas review.” (Dkt. No. 14 at 2.) Petitioner has not provided the Court with evidence in support of this contention, but Respondent has not provided the Court with evidence refuting it. (See generally Dkt. Nos. 12, 14.) As such, the undersigned recommends that the Court should not dismiss the Petition on this basis and should instead allow the parties to further develop the record.
As for Respondent's contention that Petitioner's allegations are not cognizable because he “is challenging computations of time and parole eligibility under state court convictions on the basis of state law,” the undersigned finds dismissal on this basis premature, as well. (Dkt. No. 15 at 1.) While Respondent is correct that “federal habeas corpus relief does not lie for errors of state law,” Lewis v. Jeffers, 497 U.S. 764, 780 (1990), Petitioner does not allege a mere error of state law-rather, he claims a “Due Process Violation.” (Dkt. Nos. 1, 8-1.)
When analyzing a due process challenge, the Court must “first ask whether there exists a liberty or property interest of which a person has been deprived, and if so [] whether the procedures followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (per curiam). South Carolina has created a liberty interest in parole eligibility. See Torrence v. Lewis, 60 F.4th 209, 215 (4th Cir. 2023) (referencing Furtick v. S.C. Dep't of Prob., Parole & Pardon Servs., 352 S.C. 594, 576 S.E.2d 146, 149 (2003)). Where a liberty interest is present, “the Due Process Clause requires fair procedures for its vindication-and federal courts will review the application of those constitutionally required procedures.” Swarthout, 562 U.S. at 220. However, “[b]ecause the only federal right at issue is procedural, the relevant inquiry is what process [the petitioner] received, not whether the state court decided the case correctly.” Id. at 222. “‘In the context of parole,' the Supreme Court ‘ha[s] held that the procedures required are minimal.'” Torrence, 60 F.4th at 215 (quoting Swarthout, 562 U.S. at 220) (emphasis removed)). “Under the Constitution, all that is required when a prisoner eligible for parole consideration is denied release on parole is that the prisoner be ‘allowed an opportunity to be heard and [be] provided a statement of the reasons why parole was denied.'” Id. (quoting Swarthout, 562 U.S. at 220).
It is possible that Petitioner received sufficient process and his alleged due process claim is fruitless. However, the Court simply does not have enough information to make that determination at this stage in the proceedings.
For these reasons, the undersigned RECOMMENDS that Respondent's Motion to Dismiss (Dkt. No. 11) be DENIED.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that the Court DENY Respondent's Motion to Dismiss (Dkt. No. 11) and order Respondent to file a Return and Memorandum within fifty (50) days of the Court's disposition of the Motion.
IT IS SO RECOMMENDED.