Opinion
C/A No. 0:18-673-BHH-PJG
10-15-2018
James Edward Johnson, Jr., Petitioner, v. Charles Williams, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner James Edward Johnson, Jr., a self-represented state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and subsequently amended his petition. (ECF No. 24.) This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. (ECF No. 34.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. (ECF No. 38.) Petitioner filed a response in opposition. (ECF No. 38.) Having carefully considered the parties' submissions and the record in this case, the court finds that Respondent's motion should be granted and the Amended Petition be denied.
BACKGROUND
Petitioner was indicted by Spartanburg County Grand Jury for three counts of armed robbery, three counts of possession of a weapon during the commission of a violent crime, four counts of kidnapping, failure to stop a motor vehicle when signaled by an officer, and two counts of attempted armed robbery (12-GS-42-4474A; -4475; -4476; -4477; -4478; -4481; -4482; -4483; -4484; -4485; -5167). (App. at 145, ECF No. 33-1 at 147.) Petitioner was represented on the charges by Andrea Leah Price, Esquire. (App. at 1, ECF No. 33-1 at 3.) On December 18, 2012, Petitioner pled guilty as charged in the Spartanburg County Court of General Sessions and was sentenced to an aggregate term of thirty years' imprisonment, consecutive to his probation revocation. (App. at 5-9, 36-37, ECF No. 33-1 at 7-11, 38-39.) Petitioner did not appeal his convictions and sentences.
Petitioner filed an application for post-conviction relief ("PCR") in the Spartanburg County Court of Common Pleas on April 29, 2013. (App. at 40, ECF No. 33-1 at 42.) A hearing was held on the application in which Petitioner was represented by J. Brandt Rucker, Esquire. (App. at 56, ECF No. 33-1 at 58.) The court denied Petitioner's application at the hearing and by order dated March 26, 2015. (App. at 114-123, 127, ECF No. 33-1 at 116-125, 129.)
Petitioner filed a pro se appeal of the denial of his PCR application by filing a petition for a writ of certiorari in the South Carolina Supreme Court. (ECF No. 33-3.) The court denied the petition. (ECF No. 33-5 at 1.) This action followed.
FEDERAL HABEAS ISSUES
The Amended Petition for a writ of habeas corpus raises the following issues, quoted verbatim:
Ground One: The PCR erred in denying relief to petitioner when the court erroneously found counsel was not ineffective for failing to provide adequate advice concerning the state's ability to prove "intent to permanently deprive" element of the charges against him. Violating state and federal constitutional right to effective assistance of counsel.
Ground Two: The PCR court erred in denying relief to petitioner when the court erroneously found that counsel was not ineffective for failing to challenge the validity of the armed robbery indictments before advising petitioner to plead guilty to said
indictments. Violating state and federal constitutional rights to effective assistance of counsel.(Pet., ECF No. 1 at 7; Am. Pet., ECF No. 24 at 1.)
Ground Three: The PCR erred in denying relief to petitioner, when the court erroneously found that counsel's failure to research/investigate possible defenses had no impact on the intelligent and voluntary nature of the plea. Violating his state and federal constitutional right to effective assistance of counsel.
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, 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, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), 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, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Habeas Corpus Standard of Review
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas corpus relief unless the decision was "contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States," or the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1), (2). When reviewing a state court's application of federal law, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 410 (2000); see also White v. Woodall, 572 U.S. 415, 419 (2014) (describing an "unreasonable application" as "objectively unreasonable, not merely wrong" and that "even clear error will not suffice") (internal quotation marks and citation omitted); Harrington v. Richter, 562 U.S. 86, 100 (2011); Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005); McHone v. Polk, 392 F.3d 691 (4th Cir. 2004). Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
"A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White, 572 U.S. at 419-20 (stating that " '[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' ") (alteration in original) (quoting Harrington, 562 U.S. at 103). Under the AEDPA, a state court's decision "must be granted a deference and latitude that are not in operation" when the case is being considered on direct review. Harrington, 562 U.S. at 101. Moreover, review of a state court decision under the AEDPA standard does not require an opinion from the state court explaining its reasoning. See id. at 98 (finding that "[t]here is no text in [§ 2254] requiring a statement of reasons" by the state court). If no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. Id. Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories supported or could have supported the state court's decision; and then (2) ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of the United States Supreme Court. Id. at 102. "If this standard is difficult to meet, that is because it was meant to be." Id. Section 2254(d) codifies the view that habeas corpus is a " 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
C. Respondent's Motion for Summary Judgment
Petitioner raises three grounds of ineffective assistance of plea counsel in the Amended Petition. A defendant has a constitutional right to the effective assistance of counsel. To demonstrate ineffective assistance of counsel, a petitioner must show, pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), that (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating that "the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims"). To satisfy the first prong of Strickland, a petitioner must show that plea counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution. With regard to the second prong of Strickland, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. However, to prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, the Strickland test is "some what different." Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000). To establish the prejudice prong of the Strickland test, a habeas petitioner who pled guilty must show " 'that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)) (discussing the Strickland v. Washington standard to establish ineffectiveness of counsel in the context of a guilty plea).
The United States Supreme Court has cautioned federal habeas courts to "guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)." Harrington, 562 U.S. at 105. The Court observed that while " '[s]urmounting Strickland's high bar is never an easy task[,]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The Court instructed that the standards created under Strickland and § 2254(d) are both " 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, "[t]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
The Supreme Court has held that a decision containing a reasoned explanation is not required from the state court. As stated above, if no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. In the case at bar, this court has the benefit of the PCR court's written opinion, certiorari review of which was denied by the South Carolina Supreme Court, which may provide reasons or theories that the appellate court could have relied upon in summarily denying Petitioner's petition. See Wilson v. Sellers, 138 S. Ct. 1188, 1194-97 (2018) (holding that a federal habeas court should "look through" the unexplained decision to the last related state court decision that does provide a relevant rationale, and presume that the unexplained decision adopted the same reasoning, unless the State can rebut the presumption). Therefore, the court turns to the question whether the PCR court's order unreasonably misapplied federal law or was based on an unreasonable determination of the facts. Having reviewed the PCR court's order pursuant to the § 2254 standard, the court finds for the reasons that follow that the state court did not unreasonably misapply the Strickland test in determining that no Sixth Amendment violation occurred.
1. Petitioner's Ground One
In Ground One, Petitioner argues plea counsel was ineffective for failing to properly advise him about the elements of armed robbery. Respondent argues he is entitled to summary judgment on this ground because the PCR court's decision on this issue is not contrary to, or an unreasonable application of, clearly established federal law. The court agrees.
Petitioner's charges stemmed from his participation in a 2012 armed robbery of a Family Dollar store in Spartanburg, South Carolina. (App. at 22, ECF No. 33-1 at 24.) Petitioner and his co-defendant entered the store wearing masks and carrying guns, forced employees to open the store safe, and took cash and cell phones from people inside the store. (Id.) They were apprehended that day after leading the police on a car chase. (Id.)
At the PCR hearing, Petitioner testified that he pled guilty to armed robbery, and while he still believed he committed a crime, he no longer believed his actions constituted armed robbery. (App. at 64-65, 68, ECF No. 33-1 at 66-67, 70.) Specifically, Petitioner testified that an element of armed robbery is the "intent to permanently deprive," which he believed was not met by the facts of this case because Petitioner only kicked the cell phones away from the victims, and he never took the cell phones out of the store. (App. at 65-67, ECF No. 33-1 at 67-69.) Petitioner testified that plea counsel erred by advising him to plead guilty to armed robbery when he did not meet the elements of the offense. (App. at 71, ECF No. 33-1 at 73.)
Plea counsel testified that she did not believe that Petitioner had a viable defense to the armed robbery charges based on his testimony that he only kicked the cell phones away from the victims. (App. at 102-03, ECF No. 33-1 at 104-05.) She testified that she believed the State could have presented evidence at trial that would have shown Petitioner and the co-defendant picked the phones up from the ground and placed them in trash cans. (App. at 105, ECF No. 33-1 at 107.)
The PCR court found plea counsel's performance was not deficient for advising Plaintiff to plead guilty to armed robbery. (App. at 119-20, 138, ECF No. 33-1 at 121-22, 140.) The PCR court found that South Carolina's case law is clear that the defendant does not have to have complete possession of the property to meet the elements of armed robbery, and that the "slightest removal" of property is sufficient. (App. at 120, 138, ECF No. 33-1 at 122, 140.)
The court finds the PCR court's decision is not contrary to, or an unreasonable application of, clearly established federal law. Under South Carolina law, an element of armed robbery is asportation—the act of carrying-away or removing property. State v. Keith, 325 S.E.2d 325, 326 (S.C. 1985). "Although '[t]he asportation of the stolen property is an indispensable element of the offense . . . the slightest removal of the [property] with felonious intent fulfills this requirement.' " State v. Moultrie, 322 S.E.2d 663, 664 (S.C. 1984) (quoting State v. Tindall, 50 S.E.2d 188, 190 (S.C. 1948)) (alterations in original). Thus, plea counsel accurately testified that Petitioner's claim that he only kicked away the cell phones was no defense to the armed robbery charge. Accordingly, Petitioner fails to show that the PCR court's finding as to plea counsel's performance was contrary to federal law or unreasonable.
Importantly, the indictments also charged Petitioner with taking cash during the robbery, which itself would be sufficient to meet the asportation element of armed robbery, and Petitioner has offered no defense to this fact.
2. Petitioner's Ground Two
In Ground Two, Petitioner argues plea counsel was ineffective for failing to challenge the State's armed robbery indictments as duplicitous. Respondent moves for summary judgment as to this ground, arguing the PCR court's decision on this issue is not contrary to or an unreasonable application of federal law. The court agrees.
Petitioner pled guilty to three counts of armed robbery. Two of the indictments charging armed robbery indicated that Petitioner took property in the form of money and cell phones. (App. at 146, 148, ECF No. 33-1 at 148, 150.) Each of those two indictments listed a different individual employee of the store as the victim, and each indictment noted that the money belonged to the store. (Id.)
At the PCR hearing, Petitioner testified that the two armed robbery indictments listing individual employees were defective in two ways. First, Petitioner testified that both indictments charged him for the single act of robbing the store, and therefore, he pled guilty to that single act twice. (App. at 93, ECF No. 33-1 at 95.) Second, Petitioner testified that each indictment charged him with taking the personal property of the individual employees (the phones) and the store's property (the money), which are separate offenses. (App. at 93, 96, ECF No. 33-1 at 95, 98.) Plea counsel testified that Petitioner was indicted twice for the single robbery incident because each employee from whom Petitioner took property constituted a separate offense. (App. at 100-01, 111-12, ECF No. 33-1 at 102-03, 113-14.)
The PCR court found there was no basis upon which the armed robbery indictments could have been challenged by plea counsel. Specifically, the PCR court found that the two employees were separate victims in this case, and the store was not a victim. Accordingly, the PCR court found the indictments properly charged two distinct counts of armed robbery against the two individuals. (App. at 118-19, 137-38, ECF No. 33-1 at 120-21, 139-40.)
The court finds the PCR court's decision is not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. Under South Carolina law, duplicitous indictments, which allege two distinct and separate offenses in the same count, are generally considered defective and may be dismissed on that ground. State v. Samuels, 743 S.E.2d 773, 776 (S.C. 2013). As to Petitioner's argument that each indictment includes separate offenses because the phones belonged to the individuals and the money belonged to the store, ownership of the property taken is not an element of armed robbery. See State v. Mitchell, 675 S.E.2d 435, 437 (S.C. 2009) (defining armed robbery as the felonious or unlawful taking of money, goods, or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear, while either armed with a deadly weapon or alleging to be armed by the representation of a deadly weapon) (citing S.C. Code Ann. § 16-11-330). Thus, the PCR court found that each indictment included only one offense of armed robbery because the offense is against the person, regardless of the actual owner of the property that was taken from them. For the same reasons, Petitioner's argument that he pled guilty to the same offense twice because both indictments charged him with taking the store's money is without merit. Because the armed robbery indictments were not duplicitous under state law, the PCR court reasonably found that plea counsel had no basis upon which to challenge them. Accordingly, Petitioner fails to show that the PCR court's finding on this ground was contrary to federal law or unreasonable.
"Duplicitous indictments implicate a defendant's rights to notice of the charge against him, to a unanimous verdict, to appropriate sentencing and to protection against double jeopardy in a subsequent prosecution. For example, such indictments present the risk that a jury divided on the two separate offenses in one count could nevertheless convict through a general verdict on the one count. Duplicitous indictments also can create sentencing problems, such as where a jury's general verdict leaves the sentencing judge unsure as to whether the defendant is guilty of and subject to punishment for multiple offenses." Id. (internal quotation marks and citations omitted).
3. Petitioner's Ground Three
In Ground Three, Petitioner argues plea counsel was ineffective failing to adequately research defenses, and thus, he did not enter his plea intelligently, knowingly, and voluntarily. Respondent moves for summary judgment as to this ground, arguing the PCR court's decision on this issue is not contrary to, or an unreasonable application of federal law. The court agrees.
See Hill, 474 U.S. at 56 ("The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' ") (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)); Boykin v. Alabama, 395 U.S. 238, 243-44 (1969) (establishing that a defendant's guilty plea must made on the record, and is valid only if it was made voluntarily and knowingly, meaning the defendant had a full understanding of the consequences of his plea and the charges against him).
At the PCR hearing, Petitioner testified that plea counsel told him that he had no defense and he should not go to trial because he could face a sentence of life without the possibility of parole. (App. at 63, ECF No. 33-1 at 65.) Plea counsel testified that she told Petitioner that she did not believe he had any defenses to his charges. (App. at 101-02, ECF No. 33-1 at 103-04.) She testified that she advised Petitioner that it would be in his best interest to plead guilty to avoid being served with a notice that the State would seek a sentence of life without the possibility of parole due to his prior convictions. (Id.)
The PCR court found Petitioner failed to present any testimony that he had a defense available to assert against his charges, and thus, Petitioner failed to meet his burden of showing his plea was involuntary based on any deficiency of counsel. (App. at 117, 140, ECF No. 33-1 at 119, 142.) The court finds that the PCR court's decision is not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of fact. As discussed above, Petitioner had no meritorious bases upon which he could have objected to the indictments, and Petitioner has not pointed to any other evidence in the record that would show he had defenses to his charges at trial. See Beaver v. Thompson, 93 F.3d 1186, 1195 (1996) ("[A]n allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced."). Consequently, Petitioner fails to show that the PCR court's finding on this ground was contrary to federal law or unreasonable.
RECOMMENDATION
For the foregoing reasons, the court recommends Respondent's motion for summary judgment (ECF No. 34) be granted and the Amended Petition be denied.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE October 15, 2018
Columbia, South Carolina
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).