Opinion
CIVIL ACTION NO. 9:18-2066-HMH-BM
01-04-2019
JOSHUA BRANDON PHILLIPS, #00335243, Petitioner, v. WARDEN OF TURBEVILLE CORRECTIONAL INSTITUTION, Respondent.
REPORT AND RECOMMENDATION
Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed pro se on July 25, 2018.
Filing date pursuant to Houston v. Lack, 487 U.S. 266, 270-276 (1988).
The Respondent filed a return and motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on October 19, 2018. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on October 24, 2018, advising Petitioner of the importance of a motion for summary judgment and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case.
Petitioner filed a memorandum in opposition, as well as his own motion for summary judgment, on November 8, 2018. The following day, Respondent filed a reply to the response in opposition to the motion for summary judgment. On November 20, 2018, Respondent filed a response in opposition to Petitioner's motion for summary judgment, to which Petitioner filed replies on November 26, 2018 and December 10, 2018.
This matter is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(c)and (e), D.S.C. Both the Respondent and the Petitioner have filed motions for summary judgment. As these are dispositive motions, this Report and Recommendation is entered for review by the Court.
Procedural History
Petitioner was indicted in Lexington County in October 2012 for the murder [Indictment No. 2012-GS-32-2618] and armed robbery [Indictment No. 2012-GS-32-2620] of Gerald Stewart in April 2005. (R.pp. 146-149). Petitioner was represented by Arie Bax, Esquire, and on December 5, 2012, he pled guilty to voluntary manslaughter and armed robbery. (R.p. 1-36). Petitioner was sentenced to twenty years' imprisonment for each of those charges, with the sentences to run concurrently and Petitioner receiving credit for the time he served from his arrest date in April 2005. (R.pp. 34, 37).
As was explained in the order of dismissal from Petitioner's post-conviction relief action,
[Petitioner] was originally represented on these charges by Elizabeth Fullwood, Esquire, of the Eleventh Circuit Public Defender's Office. [Petitioner] pled guilty on April 16, 2009 to armed robbery and voluntary manslaughter before the Honorable Michelle Childs. In accordance with the plea agreement, the State recommended a ten (10) year sentence for armed robbery, and held the sentence in abeyance for voluntary manslaughter pending [his] cooperation with the State in the trial of [his] co-defendant, Robert Prather. [Petitioner] subsequently refused to cooperate and filed a motion to withdraw his plea as to voluntary manslaughter, and filed an application for post-conviction relief as to the armed robbery (2009-CP-32-5760). The Motion to vacate the plea on his voluntary manslaughter was granted by the Honorable Thomas W. Cooper; [Petitioner's] PCR was consented to by the State, and granted by the Honorable William P. Keesley.(R.p. 129, n.1). See also (R.p. 17).
According to the order of dismissal from Petitioner's post-conviction relief ("PCR") action:
A notice of appeal was filed on Applicant's behalf and perfected by Arie D. Bax, Esq. In an Order filed May 31, 2013, the Court of Appeals dismissed Applicant's appeal pursuant to Rule 203(d)(1)(B)(iv), SCACR. The Court of Appeals denied Applicant's pro se petition for rehearing in an order filed September 3, 2013. The Remittitur was returned on October 21, 2013.(R.p. 129).
Respondent recites this same language verbatim in his memorandum, but the supporting documentation from Petitioner's direct appeal has not been provided to the Court. (See Court Docket No. 13 at 4).
On July 12, 2013 (dated July 9, 2013), Petitioner filed an application for post-conviction relief ("APCR") in state circuit court. Phillips v. State of South Carolina, No. 2013-CP-32-02341. (R.pp. 39-47). The PCR court outlined the issues Petitioner raised in his APCR as follows:
Although the PCR judge outlined all of the issues listed in Petitioner's PCR application, he found that with regard to any issues raised by the Petitioner in his application that were not specifically addressed in his Order, the Petitioner had failed to present evidence regarding those issues and had therefore abandoned them. (R.p. 140).
1. Involuntary guilty plea:
a. Pled by way of coercion and being misled;
2. Ineffective assistance of counsel:
a. "Counsel refused to obtain the relevant documentation that shows defendant Owen has a substantial amount of documentation, showing
his invariable state of mind through the Lexington Mental Health Facility";
(R.p. 129).
3. Intoxication and temporary insanity.
Petitioner was represented in his APCR by Aimee J. Zmroczek, Esquire, and an evidentiary hearing was held on Petitioner's application on June 8, 2015. (R.pp. 67-118). At the conclusion of the hearing, the PCR judge announced that he would deny the application and asked the State to prepare an order. (R.p. 117). Thereafter, in an order filed March 14, 2016 (dated March 3, 2016), the PCR judge denied Petitioner relief on his APCR. (R.pp. 128-141). On March 22, 2016, PCR counsel filed a motion to reconsider pursuant to Rule 56, SCRCP, which was denied. (R.pp. 142-145).
Petitioner then filed a timely appeal of the PCR court's order, in which he was represented by David Alexander of the South Carolina Commission on Indigent Defense. On February 1, 2017, Petitioner's PCR appellate counsel filed a Johnson petition seeking to be relieved as counsel and raising the following issue: "Whether petitioner's guilty plea was unknowing and involuntary because plea counsel failed to fully investigate petitioner's mental competency by obtaining an independent expert and merely accepted the opinions of the government evaluations?" Petition for Writ of Certiorari, p. 1 (See Court Docket No. 13-2, p. 3). The Petitioner also filed his own pro se memorandum on February 16, 2017, raising the following issue: "Petitioner's guilty plea was unknowing and involuntary because plea counsel failed to fully investigate his original plea agreement in 2009 to make sure it was fulfilled." (Court Docket No.13-3, p. 4).
Johnson v. State, 364 S.E.2d 201 (S.C. 1998).
After considering the record as required by Johnson and Petitioner's pro se response, the South Carolina Court of Appeals denied certiorari on March 13, 2018. (See Court Docket No. 13-4). The Remittitur was sent down on March 29, 2018, and filed with the Clerk of Court for Lexington County on March 30, 2018. (See Court Docket No. 13-5; Lexington County Eleventh Judicial Circuit Public Index, https://publicindex.sccourts.org/Lexington/PublicIndex/CaseDetails.aspx?County=32&CourtAgency=32002&Casenum=2013CP3202341&CaseType=V&HKey=7011671107431111075290116858968471191211051191071119948777110673114856688907510811211952114801051125510585).
In the interim (following the conclusion of his PCR hearing on June 8, 2015), Petitioner filed a document purporting to be an amendment to his APCR on October 23, 2015, alleging a number of claims of ineffective assistance of PCR counsel, which was docketed as a new case. Phillips v. State of South Carolina, No. 2015-CP-32-03656. (Court Docket No. 13-6). On March 5, 2018, the State filed a return and motion to dismiss, along with a proposed conditional order of dismissal noting that Petitioner's new APCR was void as successive, had been filed outside of the applicable statute of limitations, and in any event raised an issue (ineffective assistance of PCR counsel) that was not a cognizable claim under the Post-Conviction Procedure Act. (Court Docket Nos. 13-7, 13-8). Petitioner filed an opposition to the proposed order on March 13, 2018. (Court Docket No. 13-9). The PCR judge issued a conditional order of dismissal on October 22, 2018. (See Lexington County Eleventh Judicial Circuit Public Index, https://publicindex.sccourts.org/Lexington/PublicIndex/CaseDetails.aspx?County=32&CourtAgency=32002&Casenum=2015CP3203656&CaseType=V&HKey=116115112778151471041101065111049785587561159088110836953117110651145048755083111726977105877410771115).
This federal habeas Petition was filed by the Petitioner on July 25, 2018, prior to the issuance of the conditional order of dismissal in his second PCR case. In his Petition for writ of habeas corpus filed in this United States District Court, Petitioner raises the following issues:
Ground One: Unknowing and involuntary plea.See Petition, pp. 5-9. Although not presented as a claim for relief, under the "Other Remedies" section of the petition, Petitioner does further assert that "Trial Counsel was ineffective for not getting victim's clothing analyzed to show that Petitioner did not have any involvement of the crime befor [sic] pleading guilty. Therefore Petitioner filed for DNA Testing to get analyzed." Petition, p. 11.
Supporting Facts: Petitioner's guilty plea was unknowing and involuntary because plea counsel failed to fully investigate petitioner's mental compentency by obtaining an independent expert and merely accepted the opinions of the government evaluations. Both the State and Petitioner's trial counsel said competency was an issue and this is also why he couldn't testify against co-defendant in 2009 which the State said he breached.
Ground Two: Counsel informed Petitioner that due to him having knowledge based upon his numerous conflicting statements he was guilty under accomplice liability theory.
Supporting Facts: [M]ere presence at the scene of the crime and knowledge that a crime being committed are not sufficient to make a defendant [a] participant in a crime. The State would have to prove beyond a reasonable doubt that the defendant was present and aided or abeted or assisted or participated in the commission of the crime and was not simply present while a crime was being committed and had knowledge that a crime was being committed.
Ground Three: Involuntary Plea pursuant to numerous conflicting statements under State v. Robert Jared Prather 2017 WL 6327530
Supporting Facts: Trial Counsel told Petitioner that due to the numerous statements by Petitioner, by him having knowledge of the crime and being there while the crime was committed makes Petitioner guilty under the hand of one the hand of all. Petitioner was passed out during the commission of the crime and had no knowledge of the crime and it can be proven under his co-defendant. State v. Robert Jared Prather 2017 WL 6327530
Discussion
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972). However, 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 Social Services, 901 F.2d 387 (4th Cir. 1990). Such is the case here.
Each ground raised in the petition concerns some claim of ineffective assistance of counsel. With regard to Grounds One and Two in the instant action, which were raised as part of the PCR action, Petitioner had the burden of proving the allegations in his petition. Butler v. State, 334 S.E.2d 813, 814 (S.C. 1985), cert. denied, 474 U.S. 1094 (1986). The PCR court rejected these claims, making relevant findings of fact and conclusions of law in accordance with S.C.Code Ann. § 17-27-80 (1976), as amended. See Phillips v. State of South Carolina, No. 2013-CP-32-2341. These issues were also considered on appellate review by virtue of Petitioner's counsel filing a Johnson petition to the State Supreme Court. (See Court Docket No. 13-4). Therefore, these grounds are properly exhausted for consideration by this Court.
With respect to Ground Three, to the extent this claim is a different claim than the claim asserted in Ground Two, it does not appear to have been properly raised and exhausted by Petitioner in his APCR, and is therefore addressed separately. See, discussion, infra.
To the extent that Petitioner attempted to raise additional issues in his pro se response to the Johnson petition that were not considered or ruled upon by the PCR judge, those issues are not properly exhausted for consideration by this Court.
At the PCR hearing, after outlining the testimony of Petitioner and his counsel, the PCR judge found that: 1) Petitioner failed to meet his burden with respect to his claim that trial counsel was ineffective for failing to investigate; 2) Petitioner failed to show any error or omission on counsel's part, or any fact or theory, that counsel could have uncovered through a more thorough investigation; 3) counsel gave extensive and credible testimony regarding his investigation; 4) the PCR court found no deficiency; 5) counsel testified to the extensive number of hours he spent on Petitioner's defense; 6) counsel testified that he remembered meeting with Petitioner a number of times; 7) counsel testified that he was on his fourth or fifth trial notebook when Petitioner decided to plead guilty; 8) counsel obtained funds to hire an expert; 9) counsel went to the expert's house to review her findings; 10) counsel obtained funds to order a copy of Petitioner's co-defendant's transcript; 11) counsel reviewed the transcript thoroughly, particularly those sections that were pertinent to Petitioner's case; 12) Petitioner failed to show either deficiency or prejudice with respect to the allegation that trial counsel was ineffective for a failure to investigate;
13) as to the allegation that plea counsel was ineffective for failing to raise the issue of competency, Petitioner failed to meet his burden of showing either deficiency or prejudice; 14) counsel testified credibly that he had concerns about Petitioner's competency; 15) counsel still had such concerns at the time of the evidentiary hearing; 16) counsel received Petitioner's school records from Petitioner's adoptive parents; 17) those records showed a general functional IQ of between sixty and seventy; 18) counsel said that Petitioner was evaluated by the South Carolina Department of Disabilities and Special Needs ("DDSN") and the Department of Mental Health ("DMH") and was found to be competent by psychiatrists; 19) counsel's concerns were understandable; 20) counsel acknowledged that "psychiatrists say he's competent"; 21) Petitioner failed to present any credible evidence to refute the competency finding or counsel's performance; 22) Petitioner failed to meet his burden of showing ineffective assistance of counsel for a failure to raise a competency issue;
23) Petitioner failed to present any credible or probative testimony that his plea was coerced; 24) counsel testified credibly that Petitioner pled guilty because his co-defendant was convicted, and such testimony was dispositive to the issue of whether Petitioner's plea was voluntary; 25) Petitioner also admitted that he basically pled guilty because his co-defendant was convicted; 26) Petitioner failed to show that his guilty plea was made unknowingly, unintelligently, or involuntarily; 27) Petitioner's allegation that his guilty plea was rendered involuntary by counsel's improper advice on accomplice liability was entirely without merit;
28) Petitioner testified that he passed out during the commission of the crime and only pled guilty because his attorney told him that "because he was present where the crime was committed he was guilty"; 29) that testimony was not credible, particularly in light of counsel's credible testimony and Petitioner's many conflicting statements to law enforcement; 30) counsel testified that Petitioner's statements were the "number one detriment to his case. Period."; 31) counsel said that if Petitioner had exercised his right to remain silent, then he would have had a much stronger case; 32) according to counsel, Petitioner gave at least four statements; 33) the last two of Petitioner's statements were given in anticipation of Petitioner's cooperation in his co-defendant's trial; 34) counsel said that Petitioner implicated himself with an attorney present in the courthouse; 35) counsel said that according to Petitioner's original story, he and his co-defendant were at the victim's house partying with alcohol and cocaine; 36) counsel said that Petitioner and his co-defendant knew the victim as a homosexual; 37) the co-defendant apparently left at one point to get more cocaine; 38) when the co-defendant returned, the victim was standing at the door naked and with an erection; 39) Petitioner was in the bed; 40) later, Petitioner said that at that point he woke up, also mad, because he did not understand how he got there; 41) according to counsel, the problem with Petitioner's story was that it involved Petitioner getting out of bed and participating in the attacks; 42) Petitioner talked about knowingly hitting the victim and smacking him with a fake wood particle board table with which the victim was hit; 43) counsel said that Petitioner took police to where that board was located; 44) counsel said that Petitioner also told law enforcement something about him and co-defendant going to a bar, having a few drinks, and talking about the assault; 45) Petitioner and his co-defendant then went to the hospital and claimed that Petitioner had been raped;
46) there was no credible testimony in support of Petitioner's allegation that he pled guilty due to counsel's improper advice; 47) Petitioner failed to show either deficiency or prejudice as to that claim; and 48) Petitioner did not establish any constitutional violations or deprivations that would require the PCR Court to grant his Petition. (R.pp. 136-141). As previously noted, the South Carolina Supreme Court subsequently denied Petitioner's PCR appeal wherein Petitioner effectively presented these same issues through his counsel's Johnson petition and/or his pro se response brief to the Johnson petition. See Phillips v. State, Appellate Case No. 2016-001288 (Order filed March 13, 2018).
Substantial deference is to be given to the state court's findings of fact. Evans v. Smith, 220 F.3d 306, 311-312 (4th Cir. 2000) ["We . . . accord state court factual findings a presumption of correctness that can be rebutted only by clear and convincing evidence."], cert. denied, 532 U.S. 925 (2001); Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000)(en banc), cert. denied, 112 S.Ct. 74 (2001).
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C. § 2254(e)(1). See also Fisher v. Lee, 215 F.3d 438, 446 (4th Cir. 2000), cert. denied, 531 U.S. 1095 (2001); Frye v. Lee, 235 F.3d 897, 900 (4th Cir. 2000), cert. denied, 533 U.S. 960 (2001). However, although the state court findings as to historical facts are presumed correct under 28 U.S.C. § 2254(e)(1), where the ultimate issue is a mixed question of law and fact, as is the issue of ineffective assistance of counsel, a federal court must reach an independent conclusion. Strickland v. Washington, 466 U.S. 668, 698 (1984); Pruett v. Thompson, 996 F.2d. 1560, 1568 (4th Cir. 1993), cert. denied, 114 S.Ct. 487 (1993) (citing Clozza v. Murray, 913 F.2d. 1092, 1100 (4th Cir. 1990), cert. denied, 499 U.S. 913 (1991)).
Even so, with regard to the ineffective assistance of counsel claims that were adjudicated on the merits by the South Carolina state court, this Court's review is limited by the deferential standard of review set forth in 28 U.S.C. §2254(d), as interpreted by the Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000). See Bell v. Jarvis, supra; see also Evans, 220 F.3d at 312 [Under § 2254(d)(1) and (2), federal habeas relief will be granted with respect to a claim adjudicated on the merits in state court proceedings only where such adjudication "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 "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding"]. Therefore, this Court must be mindful of this deferential standard of review in considering the ineffective assistance of counsel claims asserted by Petitioner.
Where allegations of ineffective assistance of counsel are made, the question becomes "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 694. In Strickland, the Supreme Court articulated a two-prong test to use in determining whether counsel was constitutionally ineffective. First, the Petitioner must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel's performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment. Second, the Petitioner must show that counsel's deficient performance prejudiced the defense such that the Petitioner was deprived of a fair trial. In order to show prejudice a Defendant must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir.1996). For the reasons set forth and discussed hereinbelow, Petitioner has failed to meet his burden of showing that his counsel was ineffective under this standard. Smith v. North Carolina, 528 F.2d 807, 809 (4th Cir. 1975)[Petitioner bears the burden of proving his allegations when seeking a writ of habeas corpus].
I.
(Failure to Investigate Competency)
Petitioner's first claim is that plea counsel failed to fully investigate Petitioner's competency, and he faults plea counsel for accepting the opinions rendered by state agencies and for not obtaining an "independent expert." Petition, p. 5. However, at the PCR hearing, plea counsel testified that competency was one of the first issues he dealt with when representing the Petitioner, and that he had provided Petitioner's school records to the evaluators at DDSN and DMH to ensure that Petitioner "got a full and fair evaluation." (R.p. 89-92). Plea counsel testified that, even at the time of the PCR evidentiary hearing, he had concerns about Petitioner's competency, but that ultimately he was constrained to defer to the opinions of the doctors he consulted. (R.p. 92 ["I have doctors saying he's competent and there's nothing I can do about that."]). Even so, plea counsel explained his concerns with Petitioner's competency:
I think that while he can research things and he can talk about cases and he can correctly use words like lawyer and judge and prosecutor, I honestly believe Josh can't competently assist his attorney because he cannot let go of things no matter how much the facts contradict it. He gets an idea in his head, and I think there's some obsessive compulsive there, I don't know, and he—no matter what you say he won't let it go.(R.p. 107).
The PCR judge found plea counsel's testimony on the subject of Petitioner's competency and his investigation into competency to be credible, and denied the claim because Petitioner failed to present any credible evidence either that he was incompetent at the time of his guilty plea or that plea counsel's investigation was constitutionally deficient. (R.p. 137). The PCR court therefore found that Petitioner had failed to meet his burden on that claim of ineffective assistance of counsel. As outlined above, the PCR court's findings and conclusions are supported by the record in this case, which shows that while plea counsel had some concerns about Petitioner's competency, Petitioner was evaluated by two separate state entities and was deemed competent. At the time of the guilty plea, plea counsel stated,
[W]e're not contesting the findings of the government agencies that have examined my client. And we've certainly had plenty of time since those examinations to look
at any other opinions if we had desired to. It is my opinion and in my experience and in my contact with my client that that would not be necessary in this case.(R.pp. 3-4). The evaluations attesting to Petitioner's competency were also entered into evidence as court's exhibits at the start of his guilty plea. (R.p. 4). Furthermore, and contrary to Petitioner's current allegation that "competency was . . . why he couldn't testify against co-defendant in 2009 . . . [,]" plea counsel testified that it was Petitioner's credibility issues, due to his multiple conflicting statements, and not his competency, that prevented the State from using Petitioner as a witness in his co-defendant's trial. (R.p. 95).
Plea counsel testified,
Ultimately Mr. Hubbard and Mr. Riddle [counsel for the State] both kind of consulted on the case at trial and they decided not to call Mr. Phillips because of the fact that his statements had such kind of glaring disparities between them and they felt—and this is what they directly expressed to me, both of them, that he would be more of a liability to the State on the stand than an asset because there was plenty of areas by which the defense counsel for Mr. Prather would have had, prior inconsistent statements on cross-examination, to hammer him on.(R.p. 95).
Thus, the evidence in the state court record shows that Petitioner had been found to be competent, and Petitioner has failed to present any evidence that he was incompetent. Additionally, Petitioner has presented no evidence to show that any further investigation by his counsel could have uncovered any evidence that he was incompetent at the time of his guilty plea. Therefore, Petitioner has failed to show that plea counsel's performance was deficient in investigating his competence or that Petitioner's guilty plea was rendered involuntary as a result. Furthermore, even assuming that counsel had further investigated this issue, Petitioner has not shown the likelihood of a different outcome, and as a result has failed to show any prejudice as a result of counsel's failure to investigate these matters. Petitioner's claim that his counsel was ineffective on this ground should therefore be dismissed. Evans, 220 F.3d at 312 [Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding]; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene v. Fisher, 132 S.Ct. 38, 43 (2011)[observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because [its purpose] is to ensure that federal habeas relief functions as guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction"].
II.
(Failure to Properly Advise)
Petitioner testified at his PCR hearing that plea counsel gave him incorrect advice on the law of accomplice liability. (R.pp. 78-80). Petitioner described accomplice liability as being "when you participate in a crime, you aided and abetted and you assisted along with another individual[,]" but he maintained that he was passed out during the crime, which "should have been an alibi defense." (R.p. 79). Petitioner further testified that plea counsel "advised [him] that numerous conflicting statements that was made that I'd be found guilty under the hand of one, hand of all." (R.p. 79). However, Petitioner asserted that if he had been properly advised as to accomplice liability—in South Carolina, "hand of one, hand of all"—he would not have pled guilty and would have proceeded to trial. (R.pp. 79-80).
For his part, plea counsel testified that Petitioner had difficulty with being considered a principal, instead of an accomplice, explaining:
I know the issue of the enhanced charges still comes up and he still kind of hangs up on the idea that originally they had talked about him as an accomplice and then they indicted for murder and I explained to him many times that if they felt like they had enough evidence for him to be charged as a principal, they can go to the grand jury and present it as murder and if the grand jury votes that it's true billed as a murder, it's true billed as a murder, and that's something he still has a hard time with.(R.p. 109). However, plea counsel also gave further context to Petitioner's allegation that he had been passed out at the time of the crime:
[Petitioner] was at this house along with Mr. Prather, . . . and they had been partying all day and I think there was alcohol, as well as some cocaine, involved. And at one point or another it was known that the victim was a homosexual and Mr. Prather and my client—there was some suspicion that they were, . . . but either way later on in the evening—and there had been some scuffles because I think that the—the older victim was kind of trying to get with one of them. Mr. Prather left to go get some more cocaine. When he came back, you know, the story from him was that the victim met him at the door wearing no clothes and having an erection and made some comments about Mr. Phillips and this started the whole altercation and there was an allegation that Mr. Phillips was in the bed.
The problem was is [sic] that Mr. Phillips changed his story to say that he got up at that time, that he woke up, he got out of the bed and was also mad because he didn't remember how he got to the bed and how all his clothes came off. So based on that portion of his statement, and this goes to what he was saying before, he does say now I was passed out in the bed and there may have been some testimony from Mr. Prather that he was passed out in bed, but there's also his own statement which was admissible saying I got up and I was also mad at the victim and I participated in the kind of scuffle attack that they say stressed his heart and caused him to die.
Q. Correct me if I'm wrong, but in one of these meetings with law enforcement and the solicitors he ultimately disclosed that this was all a planned ruse to begin with, a robbery?
A. There were—there was some alluding to that. It was not fleshed out very well. The problems I had from his statements were the portions where he talked about knowingly being part of hitting the victim. There was a kind of weird little particleboard tabletop that had been allegedly used to smack the victim, you know, it was fairly soft, there was no concussion, there was no injuries from it that were life-threatening, but there was some smacking with this kind of fake wood particleboard table piece and he actually led them to where that was. That was taken from the home and thrown in some woods behind the apartment where Mr. Phillips lived and he took
them to where that was and showed them to show that he was—he knew where it was, and that that was a problem, too.(R.pp. 97-99).
Q. And correct me if I'm wrong, Mr. Phillips also through his communications with law enforcement disclosed that he and Mr. Prather went to play pool and got their stories straight before they went to the hospital and—
A. Claimed rape.
. . . .
[T]here was a particular bar that they went to after the—the assault, you know, if you want to call it that, and they had a few drinks and talked about it and, you know, the—the way the facts would have come out to a jury, the way the solicitor was gonna be able to talk about those facts is that they went there and figured out what they were gonna do and decided to go to the hospital, I think the Lexington County hospital, which is what they did, and at that time at the emergency room claimed that Mr. Phillips had been raped.
Many of these same facts were recited by the solicitor during Petitioner's guilty plea hearing. (R.pp. 18-27). The PCR judge deemed Petitioner's testimony not credible and plea counsel's testimony to be credible, and found Petitioner's allegation that his guilty plea was rendered involuntary due to trial counsel's improper advice regarding accomplice liability to be "entirely without merit." (R.p. 139). Petitioner also admitted that he was guilty of voluntary manslaughter based on "the hand of one is the hand of all . . . ." (R.pp. 11-13). The PCR judge summarized plea counsel's recollection of Petitioner's statements, ultimately finding that because there was no credible testimony in support of Petitioner's allegation, Petitioner had failed to meet his burden of showing either deficiency or prejudice. (R.p. 140). As shown above, the record supports the PCR court's determination that counsel was not ineffective. While, in the Petition, Petitioner contends that mere presence and knowledge are not sufficient for guilt but that the State must show that he aided, abetted, assisted, or participated in the crime; Petition, p.7; Petitioner's own statements to police show participation, rather than mere presence or knowledge.
Furthermore, the PCR court's credibility findings are entitled to great deference by this court in a habeas action. Wilson v. Ozmint, 352 F.3d 847, 858-859 (4th Cir. 2003); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983)["28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court . . . ."]. While a district court may, in an appropriate case, reject the factual findings and credibility determinations of a state court; Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); the court may not substitute its own credibility determinations for those of the state court simply because it may disagree with the state court's findings (assuming that were to be the case). See Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) ["[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear . . . . Indeed, 'federal habeas courts [have] no license to redetermine credibility issues of witnesses whose demeanor has been observed by the state trial court, but not by them.'" (quoting Marshall, 459 U.S. at 434)]. Further, Petitioner has not shown that the state court's findings were unreasonable under § 2254(d), nor has Petitioner overcome the presumption accorded the PCR court's findings. See Pondexter v. Dretke, 346 F.3d 142, 147-149 (5th Cir. 2003)[finding that the district court "failed to afford the state court's factual findings proper deference" by "rejecting the state court's credibility determinations and substituting its own views of the credibility of witnesses."]; Evans, 220 F.3d at 312; see also Seymour v. Walker, 224 F.3d 542, 553 (6th Cir. 2000)["Given the credibility assessment required to make such a determination and the deference due to state-court factual findings under AEDPA, we cannot say that the trial court's finding was unreasonable under § 2254(d)(2)."].
Therefore, Petitioner's Ground Two claim that his counsel was ineffective should be dismissed. Evans, 220 F.3d at 312 [Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding]; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene, 132 S.Ct. at 43 [observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because its purpose] is to ensure that federal habeas relief functions as guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction"].
III.
(Involuntary Plea)
In Ground Three, Petitioner alleges that his guilty plea was involuntary. As part of that allegation, Petitioner references plea counsel's advice that Petitioner's numerous statements were sufficient to prove guilt under a hand of one, hand of all theory. However, that issue has already been addressed above with respect to Ground Two and need not be addressed further.
Petitioner additionally asserts that he "was passed out during the commission of the crime and had no knowledge of the crime and it can be proven under his co-defendant State v. Robert Jared Prather 2017 WL 6327530." Petition, p. 8. However, as Respondents argue in their Return, Petitioner never raised to the PCR court the separate claim that his version of the events—that he was passed out during the commission of the crime and had no knowledge of the crime—could be proven by his co-defendant's direct appeal. As such, this claim was also not available to be considered in Petitioner's PCR appeal, and because Petitioner did not properly raise and preserve the issue in his state court proceedings, it is barred from further state collateral review. Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 562 n. 3 (1971); Wicker v. State, 425 S.E.2d 25 (S.C. 1992); Ingram v. State of S.C., No. 97-7557, 1998 WL 726757 at **1 (4th Cir. Oct. 16, 1998); Josey v. Rushton, No. 00-547, 2001 WL 34085199 at * 2 (D.S.C. March 15, 2001); Aice v. State, 409 S.E.2d 392, 393 (S.C. 1991)[post-conviction relief]; see also White v. Burtt, No. 06-906, 2007 WL 709001 at *1 & *8 (D.S.C. Mar. 5, 2007)(citing Pruitt v. State, 423 S.E.2d 127, 127-128 (S.C. 1992)[issue must be raised to and ruled on by the PCR judge in order to be preserved for review]); cf. Cudd v. Ozmint, No. 08-2421, 2009 WL 3157305 at * 3 (D.S.C. Sept. 25, 2009)[Finding that where Petitioner attempted to raise an issue in his PCR appeal, the issue was procedurally barred where the PCR court had not ruled on the issue and Petitioner's motion to alter or amend did not include any request for a ruling in regard to the issue]; Sullivan v. Padula, No. 11-2045, 2013 WL 876689 at * 6 (D.S.C. Mar. 8, 2013)[Argument not raised in PCR appeal is procedurally barred]; and as there are no current state remedies for Petitioner to pursue these issues, they are otherwise fully exhausted. Coleman v. Thompson, 501 U.S. at 735; Teague v. Lane, 489 U.S. 288, 297-298 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996) ["A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally defaulted under state law if the petitioner attempted to raise it at this juncture."], cert. denied, 117 S.Ct. 854 (1997); Aice, 409 S.E.2d at 393; Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) ["To satisfy the exhaustion requirement, a habeas Petitioner must fairly present his claim[s] to the state's highest court . . . the exhaustion requirement for claims not fairly presented to the state's highest court is technically met when exhaustion is unconditionally waived by the state...or when a state procedural rule would bar consideration if the claim[s] [were] later presented to the state court."], cert. denied, 522 U.S. 833 (1997); Ingram, 1998 WL 726757 at *1.
However, even though otherwise exhausted, because this claim was not properly pursued and exhausted by Petitioner in the state court, federal habeas review of the claim is now precluded absent a showing of cause and prejudice, or actual innocence. State v. Powers, 501 S.E.2d 116, 118 (S.C. 1998); Martinez v, Ryan, 566 U.S. 1, 9-10 (2012); Wainwright v. Sykes, 433 U.S. 72 (1977); Waye v. Murray, 884 F.2d 765, 766 (4th Cir. 1989), cert. denied, 492 U.S. 936 (1989).
In all cases in which a State prisoner has defaulted his Federal claims in State court pursuant to an independent and adequate State procedural rule, Federal Habeas review of the claim is barred unless the prisoner 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. In attempting to establish cause for why he did not raise this claim in state court, Petitioner states, "PCR Counsel, Aimee J. Zmroczek did not perfect Petitioner's PCR before the hearing under S.C. Code 17-27-10 et seq; SCRCP 71.1 and SCRCP Rule 11. Could have claimed Actual Innocence Miscarriage of Justice[.]" Petition, p. 9. The United States Supreme Court has held that "if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State . . . Ineffective assistance of counsel, then, is cause for procedural default." Murray, 477 U.S. at 488; see also Coleman v. Thompson, supra; McCleskey v. Zant, 499 U.S. 467, 494 (1991); Noble v. Barnett, 24 F.3d 582, 586, n.4 (4th Cir. 1994)["[C]onstitutionally ineffective assistance of counsel is cause per se in the procedural default context"]; Smith v. Dixon, 14 F.3d 956, 973 (4th Cir. 1994)(en banc). However for the reasons set forth below, Petitioner has failed to show the necessary "cause" to overcome the procedural bar. Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990), cert. denied, 498 U.S. 1035 (1991) ["Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court."].
While, as noted above, ineffective assistance of counsel can constitute "cause" for a procedural default, it will only constitute "cause" if it amounts to an independent violation; Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996); and ineffective assistance of PCR counsel (as opposed to trial or direct appeal counsel) does not amount to an independent constitutional violation, and does not therefore ordinarily constitute "cause" for a procedural default. Murray v. Giarratano, 492 U.S. 1-7, 13 (1989) [O'Connor, J., concurring] [ "[T]here is nothing in the Constitution or the precedents of [the Supreme] Court that requires a State provide counsel in postconviction proceedings. A postconviction proceeding is not part of the criminal process itself, but is instead a civil action designed to overturn a presumptively valid criminal judgment. Nothing in the Constitution requires the State to provide such proceedings,...nor does...the Constitution require [ ] the States to follow any particular federal model in those proceedings."]; Mackall v. Angelone, 131 F.3d 442, 447-449 (4th Cir. 1997); Ortiz, 149 F.3d at 932; Pollard v. Delo, 28 F.3d 887, 888 (8th Cir. 1994); Lamp v. State of Iowa, 122 F.3d 1100, 1104-1105 (8th Cir. 1997); Parkhurst v. Shillinger, 128 F.3d 1366, 1371 (10th Cir. 1997); Williams v. Chrans, 945 F.2d 926, 932 (7th Cir. 1992); Gilliam v. Simms, No. 97-14, 1998 WL 17041 at *6 (4th Cir. Jan. 13, 1998).
However, in Martinez v. Ryan, the Supreme Court carved out a "narrow exception" that modified
"the unqualified statement in Coleman that an attorney's ignorance or inadvertence
in a postconviction proceeding does not qualify as cause to excuse a procedural default." Martinez, 566 U.S. at ___, 132 S.Ct. at 1315. [F]or three reasons. First, the "right to the effective assistance of counsel at trial is a bedrock principle in our justice system . . . . Indeed, the right to counsel is the foundation for our adversary system." Id. at ___, 132 S.Ct. at 1317.Trevino v. Thaler, 133 S.Ct. 1911, 1917-1918 (2013); see also Gray v. Pearson, 526 Fed. Appx. 331, 333 (4th Cir. June 7, 2013)["The Supreme Court had previously held in Coleman that because a habeas petitioner has no constitutional right to counsel in state post-conviction proceedings, the ineffectiveness of post-conviction counsel cannot establish 'cause' to excuse a procedural default. Coleman, 501 U.S. at 757. The Court established an exception to that rule in Martinez."]
Second, ineffective assistance of counsel on direct appellate review could amount to "cause", excusing a defendant's failure to raise (and thus procedurally defaulting) a constitutional claim. Id. at ___, 132 S.Ct. at 1316, 1317. But States often have good reasons for initially reviewing claims of ineffective assistance of trial counsel during state collateral proceedings rather than on direct appellate review. Id. at ___, 132 S.Ct. at 1317-1318. That is because review of such a claim normally requires a different attorney, because it often "depend[s] on evidence outside the trial record," and because efforts to expand the record on direct appeal may run afoul of "[a]bbreviated deadlines," depriving the new attorney of "adequate time . . . to investigate the ineffective-assistance claim." Id. at ___, 132 S.Ct. at 1318.
Third, where the State consequently channels initial review of this constitutional claim to collateral proceedings, a lawyer's failure to raise an ineffective assistance of counsel claim during initial-review collateral proceedings, could (were Coleman read broadly) deprive a defendant of any review of that claim at all. Martinez, supr a at ___, 132 S.Ct. at 1316.
We consequently read Coleman as containing an exception, allowing a federal habeas court to find "cause," thereby excusing a defendant's procedural default, where (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding." Martinez, supra at ___, 132 S.Ct. at 1318-1319, 1320-1321.
Therefore, because, under South Carolina law, a claim of ineffective assistance of trial or appellate counsel is raised in an APCR; cf. State v. Felder, 351 S.E.2d 852 (S.C. 1986); Bryant v. Reynolds, No. 12-1731, 2013 WL 4511242, at *19 (D.S.C. Aug. 23, 2013); Gray, 2013 WL 2451083, at *4, fn *; a petitioner's claim of ineffective assistance of PCR counsel as "cause"for his default may be considered under the revised standard of Martinez and Trevino. Even so, under the first requirement of the Martinez exception, the Petitioner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the [petitioner] must demonstrate that the claim has some merit." Gray, 2013 WL 2451083 at * 2. Here, the underlying claim that Petitioner presents, that his version of events could be substantiated by his co-defendant's appellate case, is not a claim of ineffective assistance of counsel. Rather, it concerns the underlying merits. Therefore, the Martinez exception does not even apply, and any alleged ineffectiveness of PCR counsel for failing to raise this issue cannot be "cause" for a procedural default of this claim.
Moreover, even liberally construing Petitioner's claim as being that plea counsel was ineffective for failing to recognize or utilize Petitioner's co-defendant's appellate case, there are multiple deficiencies with that claim. While ineffective assistance of PCR counsel can constitute the necessary cause for this issue, under the first requirement of the Martinez exception the Petitioner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the [petitioner] must demonstrate that the claim has some merit." Gray, 526 Fed. Appx. at 333. Petitioner has failed to meet this requirement. As an initial matter, plea counsel could not have used any of the information in Petitioner's co-defendant's direct appeal, as that decision was filed on September 6, 2017, well after Petitioner's guilty plea. Additionally, as outlined above, Petitioner had given multiple incriminating statements to the police, which were referenced during his guilty plea, and which would have been admissible at trial, and plea counsel had to take those statements into account in advising Petitioner. Petitioner has not shown that any evidence in his co-defendant's trial would have or should have altered plea counsel's advice. Furthermore, the undersigned would note that Petitioner's co-defendant's testimony, as summarized by the court of appeals, implicated the Petitioner:
Prather stated he . . . found Phillips "in his bed in his boxers." Prather claimed "there was a dildo on the bed by [Phillips]'s feet." Prather testified he and Phillips went to the living room and Phillips "was screaming and upset and kicking" Victim. Prather claimed that as they were leaving, Phillips went back inside to get his shoes and Prather waited in his vehicle for about ten minutes. Prather testified Victim was still alive when he left.State v. Prather, 810 S.E.2d 419, 421 (S.C. Ct. App. 2017). For all of these reasons, Petitioner has not shown a substantial issue of ineffective assistance of plea counsel on this basis.
Finally, to the extent Petitioner's claim is that he is entitled to relief because he is actually innocent of these crimes, cognizable claims of "actual innocence" are extremely rare and must be based on "factual innocence not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); see also Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004). In this case, Petitioner has not presented any evidence that he is factually innocent. Accordingly, Petitioner has failed to present any new, reliable evidence of any type that was not presented in any of his court proceedings which supports his innocence on the criminal charges on which he pled guilty. See Schlup v. Delo, 513 U.S. 298, 324 (1995)[to present a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial"]; Doe, 391 F.3d at 161 (quoting Schlup for the evidentiary standard required for a court to consider an actual innocence claim). Further, Petitioner has also failed to make any showing that a fundamental miscarriage of justice will occur if this claim is not considered. Wainwright v. Sykes, supra; Murray v. Carrier, 477 U.S. 478 (1986); Rodriguez, 906 F.2d at 1159 [a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"] (citing Murray v. Carrier, 477 U.S. at 496); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F.Supp. 876, 881 (S.D. Fla. 1995).
In sum, based upon the evidence and the record, Petitioner has failed to show plea counsel's performance was deficient or the necessary prejudice under Strickland. Accordingly, Petitioner has failed to establish that any underlying ineffective assistance of counsel claim in Ground Three is substantial so as to be able to proceed on the claim. Gray, 526 Fed. Appx. at 333. Furthermore, Petitioner's claim of actual innocence lacks merit. Rodriguez, 906 F.2d at 1159. Therefore, Petitioner has failed to overcome his procedural default on this issue.
IV.
(Remaining Matters)
Petitioner also mentions in his Petition that plea counsel was ineffective for failing to have the DNA on the victim's clothing tested, and further notes that he "filed for DNA Testing to get analyzed." Petition, p. 11. In his response in opposition to Respondent's motion for summary judgment, Petitioner requests that this Court "have the Respondent analyze victim Gerald Stewart's clothing to show by the preponderance of the evidence that Petitioner had no involvement of victim Gerald Stewart's death and to produce Robert Jared Prather's shirt and sock with documents that has victim Gerald Stewart's blood on them." (Court Doc. 18, p. 10). Petitioner also cites testimony from his co-defendant's first trial to support his contention that his co-defendant acted alone.
To the extent Petitioner intended to raise that claim as a ground in his Petition, that claim is procedurally barred as it was not raised to and ruled upon by the PCR court. Additionally, Petitioner has failed to show either deficiency or prejudice, and thus, he has not shown that he is entitled to habeas relief based on that claim.
No cogent basis for requiring the Respondent to have the victim's and Petitioner's co-defendant's clothing tested has been presented. Petitioner has failed to establish good cause for such testing to be done, as even if the results of such testing directly implicated Petitioner's co-defendant, that would not demonstrate Petitioner's innocence. See Habeas Corpus Rule 6 ("A judge may, for good cause, authorize a party to conduct discovery . . . ."). As already discussed herein, Petitioner gave multiple statements admitting to his own participation in the crimes against the victim. He also pled guilty to voluntary manslaughter and armed robbery. Therefore, Petitioner's request for testing (contained in his Petition) should be denied.
Conclusion
Based on the foregoing, it is recommended that the Respondent's motion for summary judgment be granted, that Petitioner's motion for summary judgment be denied, and that the Petition be dismissed, with prejudice.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge January 4, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).