Opinion
C/A No.: 1:18-2904-RMG-SVH
05-16-2019
Gregory Thomas Pencille, #312332, Petitioner, v. Aaron Joyner, Respondent.
REPORT AND RECOMMENDATION
Gregory Thomas Pencille ("Petitioner") is an inmate at the Lee Correctional Institution of the South Carolina Department of Corrections. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 21, 22]. 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 by March 25, 2019. [ECF No. 23]. After obtaining an extension [ECF No. 26], Petitioner filed a response on March 28, 2019 [ECF No. 28], to which Respondent replied on April 15 and 16, 2019 [ECF Nos. 35-37]. Petitioner filed a sur-reply on April 24, 2019. [ECF No. 38].
Respondent filed its reply on April 15, 2019 [ECF No. 35] and subsequently amended the reply twice [ECF Nos. 36, 37]. The purpose of the first amendment is unclear. However, the second amended reply corrects two misstatements of fact. [See ECF No. 37 at 1 n.1]. Any reference to the reply in this Report and Recommendation refers to the second amended reply [ECF No. 37].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted. I. Factual and Procedural Background
In November 2008, the Horry County grand jury indicted Petitioner for two counts of criminal sexual conduct in the first degree ("CSC") (Indictment Nos. 2008-GS-26-4686 and 2009-GS-26-5014) and two counts of kidnapping (Indictment Nos. 2008-GS-26-4687 and 2009-GS-26-5015). [ECF No. 21-1 at 5, 13-14, 51]. On December 2, 2009, the State notified Petitioner of its intent to seek a sentence of life without parole ("LWOP"). [ECF No. 1-1 at 43].
On August 9, 2010, Petitioner, represented by G. Scott Bellamy, pled guilty to one count of CSC (Indictment No. 2008-GS-26-4686). [ECF No. 21-1 at 5]. In exchange for his guilty plea, the State nolle prossed the other three charges, withdrew the LWOP notice, and recommended a thirty-year sentence. Id. at 13-16. The Honorable Larry B. Hyman, Jr., Circuit Court Judge, conducted a full plea colloquy; heard statements from Petitioner's attorney and father asking for a lighter sentence; heard from the victim; and sentenced Petitioner to the statutory maximum, thirty years' imprisonment. Id. at 5-27. Petitioner did not object at any point during his plea colloquy or sentencing. See id.
On August 10, 2010, Petitioner sought reconsideration of his sentence. [ECF No. 21-1 at 30]. On April 3, 2012, after a full hearing, Judge Hyman denied Petitioner's motion. Id. at 34-50.
Petitioner filed a timely notice of appeal and, on September 17, 2012, Appellate Defender Robert M. Pachak perfected the appeal with an Anders brief raising the following issue:
Anders v. California, 386 U.S. 738, 744 (1967), 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.
Whether the plea court erred in taking into account other charges that appellant may have had but were not convictions in deciding to sentence him to thirty (30) years imprisonment?[ECF No. 21-2 at 4]. Pachak certified the appeal was without merit and asked to be relieved as counsel. Id. at 9. The South Carolina Court of Appeals ("Court of Appeals") dismissed the appeal on June 5, 2013. State v. Pencille, Op. No. 2013-UP-235 (S.C. Ct. App. June 5, 2013) (unpublished). The remittitur issued on June 21, 2013. [ECF No. 21-4 at 1].
On November 8, 2013, Petitioner filed the relevant application for post-conviction relief ("PCR") pro se and asserted the following grounds:
This was Petitioner's second PCR application. However, the state court dismissed his first application without prejudice pending a decision in his direct appeal action. In addition, since filing this habeas action, Petitioner filed a third PCR application, raising grounds unrelated to the issues before the court. [See ECF No. 21-9].
I. The Guilty Plea is invalid in that it was taken in violation of the Fourteenth Amendment where it was not entered knowingly, voluntarily and intelligently, and entered because of the Ineffective Assistance of Counsel as alleged and shown below:
(a) Counsel failed to object to Petitioner not being informed of his Constitutional rights to confront the accused and any witnesses against him and that he was waiving those rights by pleading guilty, when Petitioner was not aware of those rights.
(b) Counsel failed to object to the fact that Petitioner was not adequately informed or the nature of the charge(s) that he was facing and Petitioner did not otherwise know and/or understand the true nature of the charge(s) against him.
(c) Counsel failed to object to changes and additions being made to the sentencing sheet after Petitioner signed the sheet at his counsel's request.
(d) Counsel failed to inform Petitioner that the Solicitor would be permitted to argue for the trial judge to sentence Petitioner to thirty (30) years, as opposed to stating only that there was to be a cap of thirty (30) years and misled Petitioner as to the nature of any alleged plea bargain.
(e) Counsel was ineffective in failing to ensure that Petitioner was provided with a written plea agreement after Petitioner requested same on more than one (1) occasion and in failing to advise Petitioner to accept the first plea offer.
(f) Petitioner was not provided with any reasonable choice of entering a guilty plea whereas his trial counsel refused to make any type of an investigation into the matter after being repeatedly informed that Petitioner had consensual sex with the alleged victim.
(g) Counsel failed to inform Petitioner that a plea of guilty under the law, is an admission to all of the facts to the offense for which he was pleading guilty.[ECF No. 21-1 at 54-70]. The State filed a return on June 10, 2014. Id. at 71-88. The Honorable Thomas A. Russo held an evidentiary hearing on November 9, 2015, Id. at 90-165, at which Petitioner was represented by Daniel A. Selwa and Plaintiff and plea counsel testified. On January 15, 2016, Judge Russo issued an Order of Dismissal ("PCR Order"), denying and dismissing the PCR application with prejudice. Id. at 166-73. Petitioner did not move to alter or amend the PCR Order under SCACR Rule 59.
(h) The trial judge improperly participated in the proceedings and was bias whereas the trial judge asked questions to elicit responses from Petitioner that would assist trial counsel in preparing a defense to later assertions of his ineffectiveness instead of simply assuring that the guilty plea was knowing, voluntary and intelligent.
(i) The trial judge improperly participated in the proceedings and was bias whereas the trial judge virtually guaranteed Petitioner that he would have an appeal and a lawyer to perfect the appeal even though he was pleading guilty, however, no appeal was forthcoming or the lawyer never ensured that Petitioner's appeal was a reality.
II. Petitioner was deprived of his Sixth and Fourteenth Amendment rights to the Effective Assistance of Counsel.
(a) Petitioner was deprived of his Sixth and Fourteenth Amendment rights to the Effective Assistance of Counsel because of the combined actions and inactions of counsel as state[d] and/or contemplated in this Petition and any other amended or supplemental Petition.
On October 14, 2016, Petitioner appealed the PCR Order to the South Carolina Supreme Court with a Johnson petition for a writ of certiorari, filed by Appellate Defender Katherine H. Hudgins that raised the following issue:
Did the PCR judge err in refusing to find that the guilty plea was rendered involuntary by plea counsel's failure to advise Petitioner that the guilty plea to criminal sexual conduct could subject Petitioner to civil confinement, after the service of the criminal sentence, pursuant to the Sexually Violent Predator Act?[ECF No. 21-5 at 3]. Hudgins certified the petition was without merit and requested to be relieved as counsel. Id. at 10.
On January 3, 2017, Petitioner filed a pro se brief in response to the Johnson petition, asserting four additional issues:
1. How can any question of law be ascertained with an inaccurate record?[ECF No. 21-6 at 3 (errors in original)]. The South Carolina Supreme Court transferred the case to the Court of Appeals, which denied the petition for a writ of certiorari on June 6, 2018 and granted Hudgins's request to withdraw as counsel. [ECF No. 21-7]. The remittitur issued on June 22, 2018. [ECF No. 21-8]. Petitioner did not further appeal and filed this federal habeas petition on October 25, 2018. [ECF No. 1]. II. Discussion
2. Did the Common Pleas Court err in holding that Petitioners trial counsel was not ineffective in failing to inform Petitioner the elements of the crime in which he pled guilty?
3. Did the Common Pleas Court err in holding that Petitioners PCR counsel was ineffective in failing to object to Petitioners self-representation and withdraw representation considering client-attorney arguments?
4. Did the Common Pleas Court err in holding that Petitioners trial counsel was not ineffective in failing to reasonably assist petitioner?
A. Federal Habeas Issues
Petitioner raises the following grounds: Ground One: Pencille was denied the right to petition for redress of grievances under the First Amendment to the United States Constitution when the appeal court refused to hear his complaints during the appeal process. In Pencille's appellate claims, South Carolina practice and procedure created an as-applied violation of Pencille's rights to petition under the First Amendment, as extended to the states under the Fourteenth Amendment, by forcing him to choose between his right to representation (Sixth Amendment) and his right to petition (First Amendment). During all Pencille's efforts to petition for redress, he labored under the disability of an undiagnosed communication disorder; Pencille still suffers from this disability. Ground Two: Pencille was denied the right to effective assistance of counsel under the Sixth Amendment to the United States Constitution when trial counsel made no attempt to discover or inform him that the LWOP sentence enhancement was an illegal ex post facto application of the law, but instead led [] him to rely on a misadvise to form his decision to plead guilty. Absent counsel's deficient performance—failing to advise Pencille of his true legal circumstances vis-à-vis the LWOP enhancement that coerced his plea of guilty—Pencille would have not pled guilty but would have exercised his rights and gone to trial. Ground Three: Pencille was denied the right to effective assistance of appellate counsel under the Sixth Amendment to the United States Constitution when appellate counsel failed to discover that the LWOP sentence enhancement that caused Pencille to unintelligently and involuntarily plead guilty was an illegal ex post facto application of the law or derive from the reconsideration proceeding that Pencille was faced with Hobson's choice and forced to proceed pro se when entitled to counsel. Absent appellate counsel's deficient performance—failing to discover and brief Pencille's true legal circumstances vis-à-vis the LWOP enhancement that coerced his plea of guilty and the clear violation of the Sixth Amendment right to counsel—Pencille would have gained successful appellate review and had his conviction and sentence vacated. Ground Four: Pencille was denied the right to be informed of the nature and cause of the accusation against him under the Sixth Amendment to the United States Constitution when the State substituted a CSC First charge for the Kidnapping charge which had been agreed in the plea agreement the week prior to the morning of the plea on August 9, 2010. This denial was a result of defective representation by counsel that fell clearly below the threshold of required competence, prejudicing Pencille and causing him to surrender his constitutional rights when, absent the defective representation, he would have exercised his rights and gone to trial. Ground Five: Pencille was denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution when trial counsel failed to prepare a defense. Absent counsel's deficient performance, Pencille would have not pled guilty but would have exercised his rights and gone to trial. Trial counsel's failure included a complete lack of preparation for sentencing, which, since by counsel's admission he believed from the beginning that he would be producing a plea, should have been the primary thrust of his preparations. Instead, counsel was completely unprepared to assist his client even during the sentencing procedure. Ground Six: Pencille was denied due process of law under the Fourteenth Amendment to the United States Constitution when faced with the choice of asserting his constitutional right to trial when any conviction would result in a mandatory LWOP sentence, which is in all essentials a death sentence; this choice was forced onto him by the ineffective assistance of his counsel, in violation of the Sixth Amendment. Ground Seven: Pencille was denied due process of law under the Fourteenth Amendment to the United States Constitution when the solicitor engaged in a vindictive course of conduct that began by illegally enhancing the penalty for the pending charges (by placing a "Notice of Intention to Seek a Sentence of Life Without Parole" before the court) after Pencille refused plea offers over a several month span; making unsubstantiated accusations at the plea hearing; and then illegally modifying the sentencing sheet with additional illegal and unwarranted penalties after the plea. Pencille suffered prejudice when his trial and appellate counsel failed to discern and challenge the prosecutorial misbehavior, violating his Sixth Amendment right to effective representation by counsel. Ground Eight: Pencille was denied his due process rights under the Fourteenth Amendment when the trial court found the elements required for CSC First without a factual inquiry to determine corroboration, and arrived at the sentencing figure with no measurement against the material facts, based purely upon Pencille's stage-managed confession of guilt at a negotiated guilty plea. The court should not have accepted plea to CSC First when the material facts did not suggest it—a plea of guilt is not actual guilt; even a plea requires corpus delicti, or actual terms of the crime committed, and to accept a plea without determining if the pled crime occurred is a plain error of law. Pencille suffered prejudice when his trial and appellate counsel failed to discern and challenge the due process violation, violating his Sixth Amendment right to effective representation by counsel. [ECF No. 1-1 at 1-18 (errors in original)].
B. Standard for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States[,]" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural 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 the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
28 U.S.C. § 2254.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). 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 result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007, decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
The United States Supreme Court has held that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"—which includes "petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court "both the operative facts and the controlling legal principles" associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). That is to say, the ground must "be presented face-up and squarely." Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court "outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan." 559 S.E.2d at 854. As such, it is an "extraordinary" remedy under O'Sullivan, "technically available to the litigant but not required to be exhausted," Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals without more is sufficient to exhaust state remedies, 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.
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with the state rule[,]" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986), superseded by statute on other grounds (AEDPA).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a "fundamental miscarriage of justice" has occurred. Murray, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of "cause," the court is not required to consider "actual prejudice." Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
Respondent asserts all eight of Petitioner's grounds are technically exhausted, but procedurally barred. [ECF No. 21 at 21-34]. In the Petition, Petitioner indicates he did not raise any of his grounds on direct appeal; did not raise grounds one through three in his PCR application; and raised grounds four through eight in his PCR application, but not on appeal from the denial of his PCR application. [ECF No. 1-1 at 2, 4, 5, 8-9, 13, 15, 17, 23-25]. Thus, Petitioner's habeas grounds are procedurally barred absent a showing of cause and prejudice, actual innocence, or that his confinement constitutes a miscarriage of justice.
In the Response, Petitioner equivocates over whether his grounds are defaulted. However, Petitioner admits "that the matters [his grounds for relief] were not ruled upon [by the state courts], being only presented—to the extent that they were presented—in a form that the state court could not or would not recognize as a claim." [ECF No. 28 at 2]. Thus, Petitioner substantively admits procedural default.
1. Cause and Prejudice
Petitioner asserts a variety of alleged causes for the default, including ineffective assistance of counsel at various levels of state court review, which he attributes, in part, to his own ignorance of the law and an alleged communication disability. [See ECF No. 1-1 at 3, 4, 5-6, 8-9, 13, 15, 17-18, 23-25; ECF No. 14 at 11-14, 22, 36, 40]. Petitioner also alleges Ground One is a novel issue [ECF No. 1-1 at 3] and that Grounds Two, Three, and Seven "surfaced during the legal analysis that accompanied preparation" of the habeas petition [Id. at 23]. In addition, Petitioner contends "South Carolina law and procedure creates an as-applied impediment to the exercise of First Amendment rights to present petitions for redress of grievances" [Id.], and thus, "circumstances exist that render South Carolina process ineffective to protect his rights" under 28 U.S.C. § 2254(b)(1)(a)(ii) [ECF No. 28 at 5].
a. Ineffective Assistance of Counsel
Throughout his briefing, Petitioner casts blame for the procedural default on his plea counsel, appellate counsel, PCR counsel, and PCR appellate counsel.
"An attorney error does not qualify as 'cause' to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel." Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). "Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default." Id. (citing Coleman v. Thompson, 501 U.S. 722 (1991)). However, under a narrow exception, ineffective assistance of PCR counsel can constitute "cause to overcome the default of a single claim—ineffective assistance of trial counsel—in a single context—where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal." Id. at 2062-63 (citing Martinez v. Ryan, 566 U.S. 1 (2012)). That exception does not extend to appellate or PCR appellate counsel or to any claims beyond ineffective assistance of trial counsel. See Martinez, 566 U.S. at 16 (expressly declining to "extend [its holding] to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial"); Davila, 137 S. Ct. at 2065 ("Petitioner asks us to extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner's state postconviction counsel provides ineffective assistance by failing to raise that claim. We decline to do so.").
In his Response, Petitioner states, "The Respondent incorrectly states that Pencille claims ineffective assistance of PCR counsel is the cause of his procedural default, pursuant to Martinez v. Ryan . . . , but plainly Pencille does not cite Martinez at any time in his Application or Memorandum," and avers "Respondent's effort at this point in the Return is to misdirect the Court's attention to an inappropriate standard of review." [ECF No. 28 at 5]. The undersigned includes this Martinez analysis despite Petitioner's contention because he has clearly and repeatedly asserted ineffective assistance of counsel as cause for the default and Martinez is the only avenue through which the court may address those assertions.
Thus, Petitioner's allegations of ineffective assistance of counsel may only constitute cause to excuse the default where he has alleged default due to ineffective assistance of his PCR counsel for failing to raise a claim of ineffective assistance of his plea counsel. This only applies to Ground Two.
While Petitioner also asserts ineffective assistance of plea counsel in Grounds Four, Five, and Eight, Petitioner states these grounds were raised in his PCR application, but defaulted on PCR appeal. [ECF No. 1-1 at 9, 13, 23]. Thus, the alleged fault lies with PCR appellate counsel, not PCR counsel.
To establish cause for the default of Ground Two based on PCR counsel's inadequate assistance in not raising this claim, Petitioner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that . . . the claim has some merit," Martinez, 566 U.S. at 14, and that his PCR counsel were ineffective under Strickland for not raising that claim. As applied to guilty pleas, Strickland's deficiency prong remains the same, but to prove prejudice, Petitioner must show "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." Hill v. Lockhart, 474 U.S. 52, 59 (1985). This inquiry "focuses on a defendant's decisionmaking" and does not turn on the outcome of a defendant's actual criminal proceeding or potential outcome had a defendant chosen to proceed to trial. Lee v. United States, 137 S. Ct. 1958, 1966 (2017).
In Ground Two, Petitioner asserts ineffective assistance of counsel because his plea counsel "made no attempt to discover or inform him that the LWOP sentence enhancement was an illegal ex post facto application of the law, but instead led him to rely on a misadvise to form his decision to plead guilty." [ECF No. 1-1 at 3]. Essentially, Petitioner alleges he was never subject to an LWOP sentence under the applicable statute, his plea counsel was ineffective for not knowing and informing him he could only receive a maximum of thirty years in prison, and Petitioner would have chosen to proceed to trial if he had known he was not subject to LWOP. [ECF No. 14 at 15-20]. Petitioner contends, under State v. Gordon, 588 S.E.2d 105 (S.C. 2003), he could not receive an LWOP sentence under S.C. Code Ann. § 17-25-45(F) until after he completed the sentence he was serving at the time of his CSC conviction. [Id. at 17-18]. Respondent claims this ground is without merit because Petitioner was, in fact, facing an LWOP sentence. [ECF No. 21 at 46-54].
The relevant portion of S.C. Code Ann. § 17-25-45 requires an LWOP sentence "upon a conviction for a most serious offense" if the defendant has one or more prior convictions for a most serious offense. See S.C. Code Ann. § 17-25-45(A)(1)(a). Section 17-25-45(F) further constrains the prior convictions that may be considered. Since enacting the provision in 1982, the South Carolina General Assembly has amended and clarified the requisite conditions several times. See Bryant v. State, 683 S.E.2d 280, 282-83 (S.C. 2009).
In 2004, the year of Petitioner's crime, § 17-25-45(F) provided:
For the purpose of determining a prior conviction under this section only, a prior conviction shall mean the defendant has been convicted of a most serious or serious offense, as may be applicable, on a separate occasion, prior to the instant adjudication.S.C. Code Ann. § 17-25-45(F) (Supp. 1995).
The South Carolina Supreme Court decided Gordon in 2003 and held "§ 17-25-45 and § 17-25-50 must be construed together in determining whether crimes committed at points close in time qualify for a recidivist sentence." Gordon, 588 S.E.2d at 154. The court reasoned "the recidivist statute is aimed at career criminals, those who have been previously sentenced and then commit another crime, not at those whose recidivist status is premised solely upon acts which occur at times so closely connected in point of time that they may be considered one offense." Id.
Section 17-25-50 defines when closely-connected offenses are considered as one offense. See S.C. Code Ann. § 17-25-50.
In 2006, after Petitioner's alleged crime, but two years prior to his indictment, the South Carolina General Assembly again amended S.C. Code Ann. § 17-25-45(F) to read:
For the purpose of determining a prior or previous conviction under this section and Section 17-25-50, a prior or previous conviction shall mean the defendant has been convicted of a most serious or serious offense, as may be applicable, on a separate occasion, prior to the instant adjudication. There is no requirement that the sentence for the prior or previous conviction must have been served or completed before a sentence of life without parole can be imposed under this section.S.C. Code Ann. § 17-25-45(F) (Supp. 2006).
In September 2009, prior to the State notifying Petitioner of its intent to seek an LWOP sentence and almost a year prior to his guilty plea, the South Carolina Supreme Court found "the last sentence in subsection (F), added in 2006, confirms the timing feature contained in the first sentence and repudiates Gordon's contrary interpretation." Bryant, 683 S.E.2d at 531-32. Thus, the court found S.C. Code Ann. § 17-25-45(F), as it existed before 2006, did not require a defendant to have completed the sentence for his prior conviction before qualifying for LWOP.
Because Petitioner had already been convicted of a separate, most-serious offense, i.e., kidnapping, he was subject to an LWOP sentence under S.C. Code Ann. § 17-25-45, despite not yet having completed the sentence for that conviction. Accordingly, Petitioner has not shown his plea counsel misadvised him in this regard and has, therefore, failed to show constitutionally-deficient performance under Strickland and sufficient cause to excuse the procedural default of Ground Two.
In addition, to the extent Petitioner argues his alleged communication disorder contributed to the procedural default of any of his grounds for relief, the undersigned finds this argument unpersuasive. Petitioner was represented by counsel at every stage of his state court proceedings. Thus, Petitioner's allegations regarding his communication disorder relate to his inability to communicate with counsel. However, as discussed above, Petitioner has failed to show the procedural default of his habeas grounds can be excused by ineffective assistance by any of his counsel.
b. New and Novel Issues
As cause to excuse the default, Petitioner asserts Ground One is a novel issue [ECF No. 1-1 at 3, 23] and Grounds Two, Three, and Seven "surfaced during the legal analysis that accompanied preparation of the application for habeas corpus" [Id. at 23].
A claim that "is so novel that its legal basis it not reasonably available to counsel" may constitute cause for a procedural default. Reed v. Ross, 468 U.S. 1, 16 (1984).
In Ground One, Petitioner asserts that during his appeals, "South Carolina practice and procedure created an as-applied violation of [his] rights to petition under the First Amendment . . . by forcing him to choose between his right to representation (Sixth Amendment) and his right to petition (First Amendment)." [ECF No. 14 at 9]. Although Petitioner frames his argument as a complicated interplay between the First and Sixth Amendments, Petitioner merely complains about South Carolina's appellate system and his attorneys' performance. Petitioner alleges he suggested issues for his plea counsel to raise on appeal and in his motion for reconsideration, but counsel refused to assert those issues. [Id. at 10-13]. In addition, Petitioner contends his appellate counsel "failed to advance any of the meritorious claims embedded in" his case. [Id. at 11, 14-15]. These issues are far from novel.
[See, e.g., ECF No. 14 at 13 ("Pencille was faced with Hobson's choice, which creates the as-applied violation: shall he proceed pro se and consequently with no guidance to his thoughts (which will then emerge in a manner incomprehensible to the court's legal requirements) or accept counsel (who will refuse, as here, to consider his complaints and provide them with the proper framework that the court will understand)?")].
Further, "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for procedural default." Murray v. Carrier, 477 U.S. 478, 486-87 (1986).
Grounds Two and Three allege ineffective assistance of plea and appellate counsel, respectively, for failing to discover Petitioner was not subject to an LWOP sentence, and Ground Seven alleges prosecutorial misconduct for illegally seeking an LWOP sentence. Petitioner does not assert these grounds are novel, but rather that he did not discover them until composing his habeas petition. The factual and legal basis for these claims was readily discoverable throughout Petitioner's state proceedings. That he failed to raise the claims at the appropriate time is not reason to excuse the default. Moreover, as discussed above, these three grounds lack merit.
c. South Carolina's Procedures
Petitioner's overarching contention is that South Carolina's judicial system and procedures prevented him from raising his grounds at the appropriate time, or at all, in state court. [See ECF No. 1-1 at 23-25; ECF No. 28 at 2-3]. He asserts "South Carolina procedures were designed to prevent his petitions" by: (1) "appointing counsel that would not attempt to understand [his] arguments or advance them properly"; (2) "forcing him to proceed pro se when he was entitled to counsel"; (3) failing to correct his "ignorance" of the law; and (4) "fail[ing] to have adequate and effective procedures, instead of using procedural arrangements to ignore Petitioner's repeated attempts at communication." [ECF No. 28 at 3].
Petitioner specifically challenges South Carolina's process regarding his criminal proceedings. [See ECF No. 38 at 2 ("[T]he Petitioner's challenge to the South Carolina process hinges upon the application of that process—this is an as-applied challenge.")]. In support, Petitioner raises several grievances, including his attorneys' refusal to present issues, the trial court's denial of his motion for reconsideration, and the PCR court's denial of a motion to amend his petition and alleged stifling of his attempts to argue those issues at the evidentiary hearing. [See ECF No. 1-1 at 23-25].
For more than 42 years, the United States Court of Appeals for the Fourth Circuit has upheld South Carolina's Uniform Post-Conviction Procedure Act as a viable state-court remedy. See Miller v. Harvey, 566 F.2d 879, 880-81 (4th Cir. 1977); Patterson v. Leeke, 556 F.2d 1168, 1170-73 (4th Cir. 1977). Although Petitioner purports to bring an as-applied challenge, the only systemic deficiencies he alleges are actually claims of ineffective assistance of counsel or disagreements with state court rulings, neither of which constitute cause to excuse the procedural default.
Petitioner asserts his "challenge to the South Carolina state criminal process doesn't involve the Uniform Post Conviction Procedure Act directly, because that subsection of the South Carolina process is statutorily incapable of correcting the specific constitutional violations that arose in Petitioner's plea and direct appeal process." [ECF No. 38 at 4]. However, the majority of Petitioner's alleged constitutional violations arise from ineffective assistance of his plea and appellate counsel—exactly the type of issues the PCR process was designed to address.
2. Actual Innocence and Miscarriage of Justice
In addition, Petitioner has failed to show that he is actually innocent and that his conviction and sentence constitute a miscarriage of justice. See Bousley v. United States, 523 U.S. 614, 623 (1998); Schlup v. Delo, 513 U.S. 298, 327 (1995). Petitioner has had the benefit of a direct appeal, a PCR proceeding, and a PCR appeal and has been represented by counsel at every stage. Petitioner pled guilty; did not object, and in fact agreed, to the facts of his crime as recited by the solicitor during his plea colloquy; and did not dispute the DNA evidence connecting him to the crime. Any conclusory allegation of innocence fails in light of this record. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Respondent's motion for summary judgment be granted and the petition be dismissed with prejudice.
IT IS SO RECOMMENDED. May 16, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).