IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
Walter Chase Alley,
Petitioner, v. Warden, McCormick Correctional Institution,
Respondent. _________________________________________
C/A No. 5:17-01491-JFA-KDW
REPORT AND RECOMMENDATION
Walter Chase Alley (“Petitioner”) is a state pr isoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Though Petitioner proceeded pro se in this matter, Attorney Elizabeth Franklin-Best “assisted him in filling out [habeas] materials due to his suffering from a traumatic brain injury that, in [her] opinion, could [have] impede[d] his ability to file these materials on his own.” ECF No. 1-1. This matter is be fore the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent’s Return and Mo tion for Summary Judgment. ECF Nos. 15, 16. On August 10, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent’s Motion. ECF No. 17. On September 15, 2017, Attorney Elizabeth Franklin-Best filed a Response on Petitioner’s behalf, and Petitioner filed a Supplement to the Response. ECF Nos. 20, 21. 1
On September 22, 2017, Respondent filed a Reply to Petitioner’s Resp onse in Opposition to Summary Judgment. ECF 1 These filings are essentially the same document containing different signatures. Out of an abundance of caution, Attorney Franklin-Best filed a Response for Petitioner because of concerns that Petitioner’s Re sponse would not arrive on time due to prison mail issues.
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2 No. 22. Having carefully considered the parties’ submissions and the record in this case, the undersigned recommends that Respondent’s Motion for Summar y Judgment, ECF No. 15, be granted, and Petitioner’s ha beas Petition be denied.
I. Background Petitioner is currently incarcerated in the McCormick Correctional Institution (“MCI”) of the South Carolina Department of Corrections (“SCDC”). ECF No. 1 at 1. In 2011, Petitioner was indicted at the October term of the Anderson County Grand Jury for murder, armed robbery, and possession of a weapon during the commission of a violent crime. App. 389-393. 2
Initially, Petitioner proceeded to trial on February 4, 2013. App. 1. However, after jury selection and a suppression hearing, rather than proceeding with opening statements, Petitioner pleaded guilty but mentally ill to the murder charge (2011-GS-04-1723) before the Honorable J.C. Nicholson. App. 223-280. The State dismissed Petitioner’s remaining charge s. App. 223. 1-26. During his pre-trial proceedings and plea, Attorney Scott Robinson represented Petitioner, and Assistant Solicitors Rame Campbell and Brantley Haigler appeared on behalf of the State. App. 1-280. Judge Nicholson sentenced Petitioner to 37-years imprisonment for the murder conviction. App. 26. Petitioner did not appeal his guilty plea or sentence.
II. Procedural History Petitioner filed an application for Post-Conviction Relief (“PCR” ) on June 10, 2013 (2013-CP-04-1391). App. 282-291. In his Application, Petitioner alleged the following PCR grounds: 2 Citations to “App.” refer to the Appendix fo r Petitioner’s pre-trial transcript, guilty-plea transcript and Post-Conviction Relief (“PCR”) Pro ceedings. That appendix is available at ECF No. 16-1 in this habeas matter.
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3 (a) Involuntary plea due to bad legal repre[sentation].
(b) Ineffective assistance of couns[e]l. Did not present my case. (c) Lack of Attorney seeking out all of evidence witnesses before court. App. 282. In an attachment to the PCR form, Petitioner raised several ineffective-assistance-of- counsel issues. See ECF No. 288-89. Assistant Attorney General J. Walt Whitmire filed a Return on December 31, 2013, on the State’s behalf. App. 292-299. Thereafter a motions hearing convened on December 1, 2014, before the Honorable Carmen T. Mullen. App. 300-373. Petitioner was present and represented by Attorney Hugh Wellborn, and Assistant Attorney General J. Walt Whitmire appeared on behalf of the State. See id. Petitioner; Scott Robinson, Petitioner’s plea counsel; and Joyce Means, Peti tioner’s aunt, appeared and testified at the hearing. Id. By Order of dismissal filed February 12, 2015, the PCR court denied and dismissed Petitioner’s PCR Application with prejudice, fi nding Petitioner raised the following allegations and making the following findings of fact and conclusions of law:
1. Ineffective Assistance of Counsel:
a. failure to reasonably consult with Applicant and communicate developments in
the case; b. failure to elicit a plea bargain; c. failure to prepare Applicant’s case in light of counsel’s purported “high case
volume;” d. failure to reasonably investigate a suppression defense concerning Applicant’s
confession; e. failure to call Joyce Means as a witness at the Jackson v. Denno 1
hearing. f. failure to investigate a defense theory of accident; g. failure to investigate the ownership of the firearm used during the commission of
the offense; h. failure to move to suppress a purportedly defective arrest warrant; i. failure to investigate and present an adequate mitigation defense during the
sentencing phase of the plea hearing; j. failure to file a notice of appeal from Applicant’s plea hearing 2. Involuntary Guilty Plea:
a. failure to apprise Applicant that he was pleading, as indicted, to murder; 1
Jackson v. Denno, 378 U.S. 368 (1964). 5:17-cv-01491-JFA Date Filed 09/25/17 Entry Number 23 Page 3 of 33
4 b. failure to apprise Applicant of the elements of the murder.
. . . . FINDINGS OF FACT AND CONCLUSIONS OF LAW This Court has reviewed the testimony presented at the evidentiary hearing, observed the witnesses presented at the hearing, passed upon their credibility, and weighed the testimony accordingly. Further, this Court reviewed the Clerk of Court records regarding the subject’s conv ictions, the Applicant’s records from the South Carolina Department of Corrections, the application for post-conviction relief, the transcripts and documents from the prior proceedings, and legal arguments of counsel. Pursuant to S.C. Code Ann. §17-27-80 (2003), this Court makes the following findings of fact based upon all of the probative evidence presented. As a matter of general impression, this Court finds Applicant fell well short of meeting his burden to prove that he was denied constitutionally effective representation. In light of counsel’s extensive labor and admirable efforts in Applicant’s case despite the simplicity of State’s case and its overwhelming evidence of Applicant’s guilt, the majority of Applicant’s allegations are illogical and facially unsound. For instance, Applicant and the Aunt made, numerous speculative assertions on the impropriety and inaccuracy of the confession entirely inconsistent to Applicant’s allegation that couns el should have pursued an accident theory based on the substance of his confession. Furthermore, this Court is further dissuaded in assessing credibility to Applicant’s post-hoc testimony because he was a seasoned participant in the criminal justice system. This Court finds the all too familiar impetus behind this PCR action derived from Applicant’s current frustration that his co-defendants received lighter sentences than him. Instead, this Court finds that the record here shows that Applicant made the knowing, intelligent and voluntary decision to plead guilty during trial. Simply, Applicant shot and killed the victim and received the benefit of the bargain and competent assistance of counsel when he was exposed to a possible term of life imprisonment. Simply, Applicant cannot have his cake and eat it to[o].
A. This Court finds that Applicant has failed to prove that counsel was either deficient or ineffective for purportedly failing to adequately communicate with Applicant during the representation. “From counsel’s function as assistant to the defendant derive the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.” Strickland v. Washi ngton, 466 U.S. 668, 688, 104 S. Ct. 2052, 5:17-cv-01491-JFA Date Filed 09/25/17 Entry Number 23 Page 4 of 33
5 2065, 80 L.Ed. 2d 674 (1984). “There is no claim of deficient consultation
without a showing of prejudice from the deficiency.” U.S. v. Mealy, 851 F.2d 890, 908 (7th Cir. 1988). This Court finds the conclusory allegation itself is facially inadequate and without merit. See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“Conclusory allegations not supported by specifics do not warrant relief.”). Therefore the ge neric allegation, as pled and pursued, is summarily denied and dismissed. This Court finds Applicant has failed to meet his burden to prove that counsel’s performance was either deficient or ineffective for purportedly failing to apprise him of the State’s witnesses prior to trial. Applicant testified that he was forced to plead because counsel did not explain the purpose of a purported State witness “Diane Ruth’s” testimony to State’s cas e against him. Applicant has failed to meet his burden to make a prima facie showing that the purported witness was even material to State’s case. Regardless, Applicant’s allegation here is wholly unsupported by the Record before this Court. Furthermore, this Court finds counsel’s testimony to be credible that Applicant’s decision to plead guilty was independent and intelligently made as a result of the Judge’s adverse finding on the admissibility of his confessions. Therefore, this allegation is denied and dismissed.
B. This Court finds Applicant’s allegation th at counsel’s failure to elicit a plea bargain from State constituted ineffective assistance to be without merit. Absent detrimental reliance, not present in this case, a criminal defendant has no right to a plea bargain. Instead, the constitutional authority here rests solely within the purview of the prosecuting office. See Ex parte Harrell v. Attorney Gen. of State, 409 S.C. 60, 66, 760 S.E.2d 808, 810-11 (2014) (citing State v. Thrift, 312 S.C. 282, 306, 440 S.E.2d 341, 355 (1994) (internal quotations omitted) (“Noting that the State possesses “wide latitude in sele cting what cases to prosecute and what cases to plea bargain, the Court observed that the Attorney General’s authority to prosecute derives from our state constitution.”)). Therefore, the allegation is summarily denied and dismissed.
C. This Court finds Applicant has failed to prove that his guilty plea was rendered involuntary because of counsel’s purporte d failure to apprise him that he was pleading to guilty to murder as indicted. “A defendant who enters a plea on the advice of counsel may only attack the voluntary and intelligent character of a plea by showing that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pled guilty, but would have insisted on going 5:17-cv-01491-JFA Date Filed 09/25/17 Entry Number 23 Page 5 of 33
6 to trial” Holden v. State, 393 S.C. 565, 572, 713 S.E.2d 611, 615 (2011). “[T]he
voluntariness of a guilty plea is not determined by an examination of the specific inquiry made by the sentencing judge alone, but is determined from both the record made at the time of the entry of the guilty plea and the record of the post- conviction hearing.” Dalton v. State, 376 S.C. 130, 138, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Harres v. Leeke, 282 S.C 131, 133, 318 S.E.2d 360, 361 (1984). In light of counsel’s credible testimony on the matter, this Court finds Applicant has failed to produce a compelling or even remotely credible reason why he should be able to depart from the truthfulness of his assurances and statements made to Judge Nicholson during the plea hearing. See Id. at 137, 654 S.E.2d at 874 (citing Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (“A guilty plea is a solemn, judicial admission of the truth of the charges against an individual; thus, a criminal inmate’s right to contest the validity of such a plea is usually, but not invariably, foreclosed.”)). Similarly, this Court rejects Applicant’s allegation that his guilty plea was rendered involuntary because counsel never apprised him of the elements of murder. This Court finds both allegations are incredible in light of the substantial number of consultations counsel held with Applicant during the representation. Therefore, both allegations are denied and dismissed.
D. Applicant failed to meet his burden to prove counsel’s performance was either deficient or ineffective for purportedly failing to further investigate and pursue a suppression defense to admissibility of his confession. “This Court has stated previously that criminal defense attorneys have a duty to undertake a reasonable investigation, which at a minimum includes interviewing potential witnesses and making an independent investigation of the facts and circ*mstances of the case.” Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60, 64 (2011) (internal citation omitted). “State must show the statement was voluntarily made by a preponderance of the evidence.” Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct 1774, 12 L.Ed.2d 908 (1964). If the statement is found to have been given voluntarily, it is then submitted to the jury, where its voluntariness must be established beyond a reasonable doubt. State v. Washington, 296 S.C. 54, 56, 370 S.E.2d 611, 612 (1988). “When reviewing a trial court’s ruling concerning voluntariness, this Court does not reevaluate the facts based on its own view of the preponderance of the evidence, but simply determines whether the trial court’s ruling is supported by any evidence.” State v. Parker, 381 S.C 68, 74, 671 S.E.2d 619, 622 (Ct. App. 2008). Applicant fell well short of his burden here. Applicant asserts that the written manifestation of his statement did not accurately comport to what he described as 5:17-cv-01491-JFA Date Filed 09/25/17 Entry Number 23 Page 6 of 33
7 “an apology” he gave police. This Court finds that Applicant failed to make a
prima facie showing of what additional investigation could have altered Judge Nicholson’s finding that the Applicant’ s confession was made voluntarily. See Nickel v. Hannigan, 97 F.3d 403 (10th Cir. 1996) (Failure to object to an allegedly involuntary confession failed the prejudice prong where there was no evidence of police coercion as required.). This Court finds that counsel made a valid strategic decision to pursue the best available defense here in presenting expert testimony from Dr. Price on diminished capacity. See Stokes v. State, 308 S.C. 546, 419 S.E.2d 778 (1992) (where counsel articulates a valid reason for employing a certain strategy, such conduct will not be deemed ineffective assistance of counsel). Therefore, this allegation is denied and dismissed. Similarly, this Court finds Applicant failed to meet his burden to prove that counsel was either deficient or ineffective for not presenting the Aunt as a witness at the Denno hearing. This Court finds counsel made a valid strategic decision to wait until trial to present the Aunt. This Court finds the majority of her account of Applicant’s arrest and interactions w ith police to be emotionally charged, suspicious, and conclusory. This Court finds that the potential import of her testimony to Applicant’s case was substantially diminished by her abject bias demonstrated by her emotional outbursts. Had the Aunt testified at the Denno hearing, the State would have certainly been on notice of her eccentricities, thereby allowing the State to prepare to expose her limitations during cross- examination at trial. Most important, her testimony was immaterial to the pre-trial determination concerning the voluntariness of Applicant’s statement because she was not present with Applicant during his interviews and interactions with police. Skillicorn v. Luebbers, 475 F3d 965, 974 (8th Cir. 2007) (not ineffective to fail to ask questions of a witness which would elicit information either beyond the witnesses knowledge or that would be inadmissible); Amendment). Therefore, this allegation is denied and dismissed. Applicant failed to meet his burden to prove that counsel was either deficient or ineffective for failing to investigate and pursue an accident theory of the case. “A homicide will be excusable on the ground of accident when (1) the killing was unintentional, (2) the defendant was acting lawfully, and (3) due care was exercised in the handling of the weapon.” State v. Commander, 396 S.C. 254, 271, 721 S.E.2d 413, 422 (2011). This Court finds counsel’s testimony on the matter to be credible. This Court further finds that even in a light most favorable to Applicant, his PCR testimony failed to meet both the second and third elements. See Baker v. Corcoran, 220 F.3d 276, 294 (4th Cir. 2000) (failure to investigate trigger pull for the possibility of accident was not ineffective assistance of counsel). Therefore, this allegation is denied and dismissed. Applicant’s allegation that counsel was in effective for failing to investigate the ballistics evidence is without merit. Counsel pursued the matter through a pre-trial 5:17-cv-01491-JFA Date Filed 09/25/17 Entry Number 23 Page 7 of 33
8 hearing. Therefore, the allegation is summarily dismissed and denied where it was
entirely refuted by counsel’s performance at trial. Similarly, Applicant’s allegation that counsel’s purported high cas e load rendered him ineffective to be without merit. Therefore, this allegation is summarily denied and dismissed. Last, Applicant’s allegation that counsel was ineffective for failing to investigate the murder weapon to determine ownership is without merit. It was undisputed that Applicant possessed the pistol during the robbery where he ultimately shot and killed the victim. This Court finds the claim to be illogical in light of Applicant’s failure to present any testimony or evidence to the contrary. Therefore, this allegation is denied and dismissed.
E. Applicant’s allegation that counsel was ineffective for failing to quash the purported defective arrest warrant is without merit. Applicant was on notice that the State intended to pursue its murder and burglary case against him from the outset of his arrest. Any other post-hoc contention is absurd and devoid of credibility. Therefore, this allegation is summarily denied and dismissed.
F. Applicant failed to meet his burden to prove that counsel was either deficient or ineffective for failing to file a notice of appeal on his behalf. “[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S. Ct. 1029, 1036, 145 L. Ed. 2d 985 (2000). Although counsel lacks a recollection here, this Court finds Applicant and the Aunt’s tes timonies on the matter to be not credible. See Burt v. Titlow, 134 S. Ct. 10, 17, 187 L. Ed. 2d 348 (2013) (“It should go without saying that the absence of evidence cannot overcome the strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance”). Judge Nicholson found A pplicant met his burden to prove he qualified as GBMI; moreover, Applicant received a favorable sentence close to the mandatory minimum. The Court finds the lack of correspondence from Applicant’s camp to counsel on the matter to be telling in light of the Aunt’s substantial involvement in the case. Therefore, this allegation is denied and dismissed.
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9 Except as discussed above, this Court finds that the Applicant affirmatively
abandoned the remaining allegations set forth in his application at the hearing. A waiver is a voluntary and intentional abandonment or relinquishment of a known right. Janasik v. Fairway Oaks Villas Horizontal Property Regime, 307 S.C. 339, 415 S.E.2d 384 (1992). A waiver may be express or implied. “An implied waiver results from acts and conduct of the party against whom the doctrine is invoked from which an intentional relinquishment of a right is reasonably inferable.” Lyles v. BMI Inc., 292 S.C. 153, 158-59, 355 S.E.2d 282 (Ct App. 1987). The Applicant’s failure to address these issues at the hearing indicates a voluntary and intentional relinquishment of his right to do so. Therefore, any and all remaining allegations are denied and dismissed.
CONCLUSION Based on all the forgoing, this Court finds and concludes that the Applicant has not established any constitutional violations or deprivations that would require this Court to grant his application for post-conviction relief. Therefore, this application for post-conviction relief must be denied and dismissed with prejudice. This Court notes that Applicant must file and serve a notice of intent to appeal within thirty (30) days from receipt of this Order to secure the appropriate appellate review. See Rule 203, SCACR. Rule 71.1(g), SCRCP; Bray v. State, 336 S.C. 137, 620 S.E.2d 743 (2005), for the obligation of Applicant’s counsel to file and serve notice of appeal. The Applicant’s attention is also directed to South Carolina Appellate Court Rule 243 for appropriate procedures after notice has been timely filed. IT IS THEREFORE ORDERED: 1. That the Application for Post-Conviction Relief must be denied and dismissed with prejudice; and 2. The Applicant must be remanded to the custody of the Respondent. App. 375-388. Appellate Defender John H. Strom represented Petitioner on appeal, filing a Writ of Certiorari in the Supreme Court. ECF No. 16-2. There, Petitioner presented the following issue: “Whether Petitioner’s Sixth Amendment right s to the effective assistance of counsel were violated where defense counsel failed to call Petitioner’s aunt, Joyce Means, as a witness when her testimony at the Jackson v. Denno hearing would have undermined the credibility of the
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10 investigating officers by contradicting their contention that Petitioner arrived at the police station on his own and without being seized by law enforcement?” Id. at 3. Assistant Attorney General Patrick Schmeckpeper filed a Return on behalf of the State. ECF No. 16-3. On September 21, 2016, the South Carolina Supreme Court denied the Petition for Writ of Certiorari, ECF No. 16- 4, and issued the remittitur on October 18, 2016, ECF No. 16-5. This Petition followed on June 6, 2017. ECF No. 1.
III. Discussion
A. Federal Habeas Issue Petitioner raises the following issues in his Federal Petition for a Writ of Habeas Corpus, quoted verbatim:
GROUND ONE: Petitioner’s Sixth Amendmen t rights to the effective assistance of counsel were violated when defense counsel failed to call Petitioner’s aunt, Joyce Means as a witness at trial, when her testimony at the Jackson v. Denno 1 hearing would have undermined the credibility of the investigating officers by contradicting their contention that Petitioner arrived at the police station on his own accord and without being seized by law enforcement. Supporting Facts: Petitioner includes the following “argument” in his Petition: Determining whether Petitioner’s statements were freely, voluntarily, and intelligently given, despite his intellectual disabilities, was the critical issue in Petitioner’s case. At the Denno hearing, Petitioner presented overwhelming evidence that he had suffered a serious traumatic brain injury to his frontal lobe. Expert testimony established that Petitioner had the reading comprehension of an eleven or twelve year-old and an I.Q. of sixty-eight, which rendered him easily manipulated and eager to please. App. 173-177. Despite these seemingly obvious deficiencies, all of the investigators incredibly claimed that they had no reason to suspect that he did not understand the implications of waiving his Miranda rights or that he failed to understand that he 1
Jackson v. Denno, 378 U.S. 368 (1964). 5:17-cv-01491-JFA Date Filed 09/25/17 Entry Number 23 Page 10 of 33
11 was confessing to murder. The State also emphasized that Petitioner had “arrived
at the Honea Path police department on his own.” App. 192, ll. 2-10. Joyce Means, Petitioner’s aunt, would have testified that the Honea Path police department was actively searching for Petitioner and that police stopped her vehicle while he was traveling with her and had him to come to the station. App. 343- 345. Defense counsel’s decisi on not to call Means during the Jackson v. Denno hearing deprived Petitioner of testimony that would have undermined the credibility of the investigators and that would have supported the defense’s allegations of coercive police action. Roseboro v. State, 317 S.C. 292, 294, 454 S.E.2d 312, 313 (1995) (finding “counsel mu st articulate a valid reason for employing a certain strategy to avoid a finding of ineffectiveness”). Defense counsel offered no strategic reason for his failure to call Means. Therefore, the PCR court erred in holding that trial counsel provided effective assistance of counsel. App. 368; See Strickland v. Washington, 466 U.S. 668 (1984) (establishing the standard for ineffective assistance of counsel claims: a PCR applicant must show that counsel’s performance was deficient and that the deficiency prejudiced the outcome of the proceedings). ECF No. 1 at 15-16.
B. Standard for Summary Judgment The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to part icular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other
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12 materials;” or “showing . . . that an adverse pa rty cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
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 of 1996 (“AEDPA”), re view 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
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13 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 (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 411. 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 re quires that a petitioner present his claim to the state’s highest court with authorit y to decide the issue before the federal court will consider the claim. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner 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 circ*mstances 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— 5:17-cv-01491-JFA Date Filed 09/25/17 Entry Number 23 Page 13 of 33
14 (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) circ*mstances 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. (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). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state’s highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) overruled on other grounds by U.S. v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them. 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 section 17-27-80 of the South Carolina Code, counsel for the applicant must make a motion to alter or amend the
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15 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, 267 (S.C. 2007). Strict time deadlines govern direct appeals 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. Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)). 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
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16 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 United States 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 prej udice resulting from the alleged constitutional violation[,]’” the federal co urt 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). 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,
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17 the exhaustion requirement is technically met and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996)). 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 South Carolina Supreme Court in limited circ*mstances 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 v. Carrier, 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 that 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, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray v. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
III. Analysis
A. Timeliness and Procedurally-Barred Grounds As an initial matter, Respondent concedes that Petitioner’s sole habeas ground is not procedurally barred. ECF No. 16 at 22. Therefore, it is ripe for habeas review. 3 3 Respondent maintains that Petitioner’s habeas Petition is timely if the court calculates time from the remittitur date but is untimely if the court calculates the time from the denial of Petitioner’s writ of certiorari. This court has c onsistently calculated time for purposes of the
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18 B. Merits
In his only habeas ground Petitioner alleges ineffective assistance of counsel. The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 (1970). In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court held that to establish ineffective assistance of counsel, a petitioner must show deficient performance and resulting prejudice. Counsel renders ineffective assistance when his performance “[falls] below an objective standard of reasonableness,” but th ere is a “strong presumption” that counsel’s performance was professionally reasonable. Id. at 688-89. Prejudice requires a showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. In the context of a guilty plea, ineffective assistance of counsel claims may be asserted in limited circ*mstances. In order to prevail on a claim of ineffective assistance of counsel pertaining to a guilty plea, a petitioner must show that his lawyer’s performance was incompetent and “t hat there is a reasonable probability that, but for counsel’s errors, he would not have pleaded gu ilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
statute of limitations based on the date of remittitur. See e.g., Frazier v. Stevens, No. 4:09-302- JFA-TER, 2010 WL 921613, at * 3 n.6 (D.S.C. Mar. 10, 2010), as amended (Mar. 12, 2010) (tolling the period of limitations from the date petitioner filed his first PCR until the date the South Carolina Supreme Court issued the remittitur); Gambrell v. Bazzle, No. 9:07-cv-00172- RBH-GCK, 2008 WL 269505, at *5 (D.S.C. Jan. 29, 2008) (“When the Supreme Court issued the Remittitur following its Order denying the petition for a writ of certiorari on December 19, 2003, Petitioner’s first PCR action became final.”). Therefore, this court finds this habeas Petition was timely filed and is not in violation of the AEDPA one-year statute of limitations.
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19 In addressing the merits of this ground, Respondent argues that Petitioner cannot demonstrate he is entitled to habeas relief because the state court did not unreasonably apply clearly established federal law, nor has Petitioner shown by clear and convincing evidence that the state court’s factual determinations were unreasonable in light of the facts and evidence before it. ECF No. 16 at 23; 27-34. Further, concerning Petitioner’s self-incriminating statement, Respondent maintains:
There is ample evidence in the record in support of both Judge Nicholson’s finding the statements of Petitioner were freely and voluntarily given by a preponderance of the evidence and that of the PCR Court that Petitioner had failed to meet his burden of proof to show counsel was deficient in failing to call his aunt at the Denno hearing or that Petitioner was constitutionally prejudiced by this alleged deficiency. Id. at 28.
Petitioner contends that he was denied effective assistance of counsel because his trial counsel failed to present his aunt, Joyce Means, as a witness during the Jackson v. Denno hearing. ECF No. 1. The PCR court found that Petitioner’s trial counsel was not ineffective and Petitioner was not prejudiced by trial counsel’s failure to call Means as a witness during the Jackson v. Denno hearing. App. 383-86. Specifically, the PCR court found that Petitioner failed to demonstrate that further investigation would have altered the trial court’s finding that his statement/confession was voluntary. App. 384. Further, the PCR court found plea counsel made a “valid strategic decision to pursue the best available defense here in presenting expert testimony from Dr. Price on diminished capacity.” Id. Concerning plea counsel’s decision to wait until trial to call Petitioner’s aunt as a witness, the PCR court found:
[T]he majority of her account of Applicant’s arrest and interactions with police to be emotionally charged, suspicious, and conclusory. This Court finds that the potential import of her testimony to Applicant’s case was substantially diminished 5:17-cv-01491-JFA Date Filed 09/25/17 Entry Number 23 Page 19 of 33
20 by her abject bias demonstrated by her emotional outbursts. Had the Aunt testified
at the Denno hearing, the State would have certainly been on notice of her eccentricities, thereby allowing the State to prepare to expose her limitations during cross-examination at trial. Most important, her testimony was immaterial to the pre-trial determination concerning the voluntariness of Applicant’s statement because she was not present with Applicant during his interviews and interactions with police. Id. at 385. Based on the testimony from the PCR transcript and the trial transcript, the undersigned finds that the PCR court correctly applied Strickland to Petitioner’s case. In Jackson v. Denno, the Supreme Court instructs trial courts to “make a preliminary determination regarding a confession offered by the prosecution and exclude it if in no circ*mstances could the confession be deemed voluntary.” 378 U.S. 368, 377 (1964). The Court based this mandate on a defendant’s due process ri ght to not be found guilty based in whole or in part “upon an involuntary conf ession” and defendant’s right to object to the use of the confession. Id. 376-77. When determining whether a statement is involuntary, the Supreme Court further instructs that the test to consider is the “totality of all the surrounding the circ*mstances,” including “the circ*mstances surrounding the giving of a confession,” and “the characteristics of the accused and the details of the interrogation.” Dickerson v. United States, 530 U.S. 428, 434; see also United States v. Hunter, 912 F. Supp. 2d 388, 394 (E.D. Va. 2012) (“Whether statements were unconstitutionally obtained is a mixed question of law and fact properly disposed of by the court, without the assistance of a jury, based on the totality of the circ*mstances.”). United States v. Inman, 352 F.2d 954, 956 (4th Cir. 1965), instructs a trial court to “evaluate the evidence to ascertain whet her, after resolving any conflicts therein, it convinces him beyond a reasonable doubt that the confession was voluntary.”
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21 During the PCR hearing, Petitioner testified that he had suffered from a brain injury and agreed that he has an overall IQ of 68. App. 308-09. Petitioner testified plea counsel failed to interview his aunt, Joyce Means, who would have testified that Petitioner was coerced into giving his confession when he was taken into custody. App. 312. Further, Petitioner testified that because of some of his mental problems, he had problems understanding things. App. 315. Petitioner acknowledged that a doctor testified about his mental condition and “how [Petitioner], in his opinion, [] didn’t understa nd what was going on. . . .” App. 327. In spite of this testimony, Petitioner acknowledged the trial court “ultimately ru led that the statements would come in. . . .” Id. Petitioner testified that when he gave his statement to police he “meant it as an apology. . . .like [he couldn’t] believe that happened.” A pp. 328. Further, Petitioner testified Means would have provided a defense for him, but plea counsel failed to use her. Id. Petitioner testified his plea counsel arranged for him to meet with Dr. Price in Greenville prior to trial, and he met with the doctor approximately six times. App. 334. Petitioner testified that police read him his Miranda 4
rights before he gave his statement, and he helped identify his co-defendants in a line up after he gave his statement. App. 335. Further, Petitioner acknowledges that the day after he gave his statement, he took police to the location of a gun. Id. Petitioner’s aunt, Joyce Means, testified th at Petitioner was involved in a serious car accident when he was 17 years old. App. 340. She testified that as a result of the accident, he suffered from “frontal lobe injuries,” and sin ce the accident, everything changed and he became “very easily influenced.” App. 341. Ms. Means test ified she has observed Petitioner’s attitude and judgment change since the accident. Id. Concerning Petitioner’s statement, Ms. Means 4 Miranda v. Arizona, 384 U.S. 436 (1966).
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22 testified that she was driving Petitioner on the day he gave his statement—that they were pulled over by police and Petitioner was asked to go and voluntarily speak with police. App. 345. Ms. Means testified that Petitioner went with police, while she returned home to get dressed but she arrived at the station quickly thereafter. Id. When she arrived at the police station, Ms. Means testified that Petitioner was in handcuffs even though Tommy Johnson said he was not a suspect at that time. App. 346. Ms. Means testified that police told Petitioner he was not under arrest and would likely return home with his aunt. Id. However, after Petitioner came out of questioning, police told Ms. Means that he was being charged with murder and detained. App. 346-47. At this point, Ms. Means testified she became “hysterical ” and told police Petitioner had a brain injury and needed to have legal counsel with him—that was his right. App. 347. Ms. Means testified she went to plea counsel “three times” asking that he call her during the suppression hearing so that the judge would understand that Petitioner felt coerced and is easily pushed into things. App. 348. Additionally, Ms. Means testified:
I hate [plea counsel]. He should have did what I asked him to do and put me on the stand. And he did not. And then he told me not to come back up there. But I was so upset I sent my husband up there with a note, you know. And he still did not put me up there as a witness. But yet, he sent me and my sister both out of the courtroom because he said we were going to be witnesses. But he still didn’t use us. And I just thought that was unfair of him. App. 348-49. Further, Ms. Means testified that the statement Petitioner made was meant to be an apology—that his injury makes him blurt things out. App. 350. During cross-examination, Ms. Means admitted that she was not present with Petitioner during the police questioning. App. 354.
When questioned about the decision not to call Ms. Means as a witness during the Jackson v. Denno hearing, plea counsel testified it was his strategy to wait until trial to call Ms. Means. App. 362-63. He testified Ms. Means could have testified and discredited the officers’
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23 testimony because she “had a very strong opinion th at they would not have - - if they knew about his condition, they should not have done what they did. . .” Id. Though that was their strategy, plea counsel testified they never got to that point. App. 363. Plea counsel testified that it was their hope that Dr. Price would testify that Petitioner did not have the capacity to give his statement, but he did not offer such testimony. App. 363-65. Plea counsel specifically testified that he did not think Ms. Means’ tes timony would have been relevant at the Jackson v. Denno hearing. App. 369. Turning to the outcome of the hearing, ultimately the trial court ruled, following the Jackson v. Denno hearing, that Petitioner’s statemen t was voluntary, and there was no police coercion. App. 200. Specifically, the Court ruled that, under the totality of the circ*mstances, at the time he gave his confession Petitioner was functioning on a fifth grade level. App. 201. Further, the trial court found: “I think a fifth grader would be able to understand the statement.” Id. Further, the trial court found that Dr. Price’s testimony, as offered by the defense, was not sufficient to show that Petitioner’s statement was not voluntarily given. Id. The court concluded that “the statement was a volunt ary product of a free and unconstrained will of this defendant even though he was mildly retarded with an I.Q.” of 68. App. 202-03. The trial court based this decision on the following arguments and testimony provided during the Jackson v. Denno hearing.
There, Petitioner’s plea counsel argued that Petitioner did not understand his rights when he gave his statement. App. 52. Thomas Johnson, a detective with the Anderson County Sheriff’s Department was the first witness during the hearing. App. 52-53. Detective Johnson testified that Petitioner voluntarily agreed to come with him from the Honea Path Police Department to the
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24 Anderson County Sheriff’s Office for questioning. App. 55. He testified that Petitioner was not restrained and that he advised Petitioner that he was not under arrest. Id. Detective Johnson testified that he reviewed the Advisory of Rights and Waiver of Rights forms with Petitioner in an interview room. App. 56-58. Detective Owens, the lead investigator, was also in the interview room during Petitioner’s questioning according to Johnson’s testimony. App. 59. Detective Johnson testified that after reading over the forms with the Detectives, Petitioner told them he understood his rights and initialed and signed the forms. App. 60-61. Detective Johnson testified Petitioner never asked for an attorney. App. 62. Additionally, Detective Johnson testified he had no reason to suspect that Petitioner may not have understood his Miranda warnings or other rights. App. 63. Detective Johnson conceded that he was aware Petitioner had been involved in a car accident, but he testified he did not know what type of injury Petitioner sustained from it. App. 68-69. Detective Johnson testified he believed Petitioner understood everything that was said to him during the interview. App. 69-71. Detective Johnson testified that Petitioner verbally made the self-incriminating statement to Detective Owens who then typed what Petitioner admitted. App. 72-73. Later Detective Johnson testified that Petitioner “told us his part in this crime.” App. 73.
Todd Owens testified as the next witness during the hearing and maintained he was present when Detective Johnson went over the Advice of Rights form with Petitioner. App. 81. Detective Owens testified that at first Petitioner claimed not to know much about the crime, but as the questioning continued, “he showed signs of st ress . . . [a]nd then he got to the point where he lowered his head and said, well, I do know something.” App. 82-83. Detective Owens testified they then took a break, and Petitioner went outside to smoke a cigarette. App. 83-84.
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25 After the break, Detective Owens testified that Petitioner admitted he knew who was there, and he admitted that he had been there, at the crime scene. App. 84. Detective Owens testified that Petitioner agreed to put a statement in writing in his office while Detective Johnson was there— specifically, Detective Owens typed out what Petitioner stated to him. App. 84-86; 89-90. Detective Owens testified that Petitioner was able to follow directions when asked for information for the statement and did not appear to have any communications problems. App. 88-89. After Petitioner gave his statement that Detective Owens typed out, Detective Owens testified that Petitioner had a chance to review the statement and make corrections to it. App. 91. Detective Owens read the following statement that Petitioner gave into the record:
Sunday, Charlie Robinson and a guy named Weaver — at least that’s what we called him. I don’t know his real name — showed up at my house. It was after dark. We drank a few beers. Somebody said something about being hungry, and we walked toward Hardee’s. It was ar ound ten p.m. because Hardee’s was closed. We walked over to the Spinx. We ran into Holly Whitfield. We got into her car, and she gave us a ride home to my house. We all went in, and it came up in a conversation that we could rob somebody. The Weaver guy knew of a person we could rob. We decided to do it. I think it may have been around or may have been twelve a.m. to one a.m. in the morning. I grabbed my three-eighty caliber handgun it was a Hi-Point — and stuck in my pocket. Charlie had a chrome revolver. I don’t know where he got it fr om. We jumped in the car, and I was driving. I got directions there from someone in the car. I don’t remember who. They all were talking. We drove out to Trail Road in Craytonville and stopped at a brick house. We got out, all of us. We had on gloves and went inside. I was the last in. By the time the old man was awake, it looked like he had been asleep and everyone was yelling at him. Holly and Weaver were in the back rambling through stuff. Me and Charlie were holding him with guns. He was standing up beside his bed. He was wearing a white tshirt, and I walked up and pointed my gun at him. I told him that I would shoot him, and he said he had to pee. He reached for my gun and the gun went off. He fell down, and we ran out of the house. I thought I was going to get left. I finally got into the car and we drove back to my house. We didn’t stay long and went to Greenville. On the way, I threw the gun. We were still moving in the car when I threw it. It was at a bridge at Erwin Mill or the Saluda River Bridge. We went to Greenville to Holly’s apartment. We hung out. The first time I saw money, it was in Charlie’s hand. It 5:17-cv-01491-JFA Date Filed 09/25/17 Entry Number 23 Page 25 of 33
26 was a little over two hundred bucks and we all split it, around fifty a piece. I fell
asleep, and the next morning I woke up and came home. Holly drove me home. App. 92-94. Detective Owens testified that after Petitioner gave his statement, he placed him under arrest. App. 96. Further, Detective Owens testified that after he was placed under arrest, Petitioner agreed to take police to the location of the weapon. Id. When asked about Petitioner’s mental condition, Detective Owens testified he was not aware of any injuries Petitioner had and mental illness “never came up in conversation. . .[h] e appeared alert, competent, and normal. . .” App. 99.
Lieutenant Steve Reeves, Detectives Johnson and Owens’ boss, testified that he was present the day Petitioner was questioned, though not in the interview room. App. 109-110. Lieutenant Reeves testified that Detective Owens asked for his assistance in administering a photographic line-up. App. 111-112. After his questioning, Lieutenant Reeves testified he went to Petitioner’s holding cell with the six-picture lineup and asked Petitioner if he recognized anyone. App. 113-15. He testified that Petitioner recognized an individual in one of the pictures that Petitioner described as “Weaver,” who was “som ehow related to the man that he shot.” App. 116. Additionally, Lieutenant Reeves testified that Petitioner also circled a picture of Weaver or “Mr. Bell.” App. 117. Lieutenant Reeves testified that Petitioner was able to follow directions and appeared to comprehend what he was asked. Id. As with the other investigators, Reeves claimed Petitioner never indicated to him that he had any mental impairments that would prevent him from understanding what was being asked of him. App. 119-120. According to testimony from Detective Matthew Voigt, the following morning, Detective Voigt drove Petitioner to where he had thrown his pistol into the Saluda River. App. 124-26. Detective Voigt testified that, “there was nothing a bout [Petitioner] that struck me as out of the
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27 ordinary. He seemed like he was just wanting to cooperate with the investigation.” App. 126. Detective Voigt identified an Advisory of Rights and a Waiver of Rights form that Petitioner signed the morning they drove to the location of the pistol. App. 127-28; 130-31. Further, Detective Voigt testified that Petitioner never asked to have an attorney present after he was advised of his rights. App. 129. Moreover, Voigt claimed that, while they were leaving the parking lot, Petitioner said “I done went and shot that man in the face.” App. 132. Thereafter, Detective Voigt testified that Petitioner led them to where he had thrown the pistol. App. 133. Finally, Detective Voigt testified that it did not appear to him that anything affected Petitioner’s mental ability. Id.
The defense called Dr. David Price as their sole witness during the Jackson v. Denno hearing. App. 137. Dr. Price, a forensic psychologist, and was retained by the defense to examine Petitioner. App. 138-42. Dr. Price testified that he reviewed “ voluminous amounts of medical records,” conducted his own evalua tion of Petitioner, and met with his two aunts in preparation of his report on Petitioner’s cogn itive ability. App. 139. Dr. Price testified that after the car accident, Petitioner’s brain injuries resulted in the “loss of significant skills.” App. 142. Further, Dr. Price testified that Petitioner had an I.Q. of 68, falling within the realm of mild-retardation, and the “academic skills up to about the sixth grade.” App. 143. Concerning Petitioner’s reading level, Dr. Price testified that Petitioner is in the fourth percentile “with a grade equivalency of fourth grade, four point seven.” App. 144. Concerning the signed Wavier of Rights form, Dr. Price specifically identified several “comple x” sentences that Peti tioner would not have understood. App. 144-47. Dr. Price diagnosed Petitioner with “dementia due to head trauma” testified he has “had a loss in some of his ability to make judgments, informed decisions,
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28 planning, organization, use of information, problem-solving.” App. 148-149. Dr. Price also diagnosed Petitioner had “frontal lobe syndrom e” affecting his decision-making skills—that he did not understand “what the imp lications of making a statement could be. . . .” App. 150-53. Ultimately, Dr. Price opined that Petitioner’s statement were “[ l]ikely not” voluntary. App. 154- 55; 167.
On cross-examination, Dr. Price testified he had reviewed the South Carolina Mental Health Department’s evaluation on Petitioner’s co mpetency to stand trial, and he agreed that Petitioner had the capacity to distinguish between right and wrong. App. 158. After cross- examination, the trial court asked Dr. Price about Petitioner’s reading, spelling, math, and sentence comprehension levels. App. 173-77. Dr. Price agreed that Petitioner had a sentence comprehension level of about a 12 year old. App. 177. When questioned by the trial court, Dr. Price again testified Petitioner would not have been able to comprehend the self-incriminating statement that the “police officer [] typed out and read to the Defendant.” App. 177-79. Respondent and the PCR court maintain there is ample evidence to support the trial court’s finding that Petitioner’s statements were freely and voluntarily given by a preponderance of the evidence. ECF No. 16 at 28; App. 383-85. However, whether Petitioner’s statements were correctly found to be voluntary is not at issue before the court. Rather, the court is tasked with determining whether plea counsel was ineffective in failing to call Joyce Means as a witness during the Denno hearing. On that precise issue, the undersigned finds possible error. Following the witness testimony, the State argued that Petitioner’s statem ents were voluntarily given because Petitioner “freely went to the Honea Path Police Department. He stated, hey, I want to talk to y’all about this. . . . He approached them on his own. They went and picked him up and
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29 went through the procedures.” App. 192. Later, th e State reiterated: “He went to them. . . .He want[ed] to get it off his chest. He want[ed] to tell them.” App. 195-96. However, Ms. Means’ PCR testimony contradicts the State’s representation that Petiti oner went to the Honea Path Police Department on his own accord. See App. 343-45. Rather, Ms. Means testified that on the morning Petitioner gave his statements, she went to Petitioner’s home, and Petitioner left with her. App. 344-45. Later, police pulled over her car, in which Petitioner was riding, and police asked that Petitioner go with them to the station, and Petitioner complied. See id. Specifically, Ms. Means testified: “The morning he was ta ken in, he did not go to the Honea Path Police Department and say, ‘Here I am. I want to talk to y’all.’ That was a lie.” App. 343. Further, Ms. Means testified that Petitioner was in fact a suspect when he went with police to the Anderson County Sheriff’s Office—that Petiti oner was in handcuffs when she arrived at the police station. App. 346.
Petitioner argues in his habeas Petition that his trial counsel believed: [Ms. Means’] testimony would undermin e police credibility on the issue of coercion. App. 363, 11. 7-10. Defense counsel never testified that he had any reservations regarding Means’ bias, “ecc entricities,” or exhibited any concern about revealing his fairly obvious strategy to the State. Accordingly, references to these factors in the order of dismissal are without support in the record. App. 385. Therefore, the PCR court erred in finding that, defense counsel’s failure to call Means to testify at the Denno hearing was a “matter of trial strategy” and an objectively reasonable exercise of counsel’s professional judgment. App. 384 - 385. ECF No. 1 at 18. Despite Ms. Means’ opposi ng testimony and Petitioner’s argument, the undersigned finds Petitioner was not prejudiced by any possible error by plea counsel. Plea counsel retained Dr. Price whose mental health assessment was admitted into the record and who opined that Petitioner did not voluntarily give his statement. The undersigned has reviewed Dr.
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30 Price’s testimony and finds the tria l court gave it great weight in determining the voluntariness of the statements under the totality of the circ*mstances. Specifically, the trial court found Petitioner could comprehend sentences at a fifth-grade level and that a fifth grader would understand the statement Petitioner gave. App. 201. Therefore, based on Dr. Price’s testimony and the trial court’s ultimate conclusion on volunt ariness, the undersigned finds plea counsel’s error harmless. Here, the trial court concluded that Petitioner’s stat ements were voluntary in spite of a medical expert’s differing opinion. Therefor e, had Ms. Means offered testimony during the Jackson v. Denno hearing, the undersigned finds the trial court would not have reached a different conclusion. In other words, the undersigned finds that there is not a reasonable probability that, but for counsel’s error, the result of the Jackson v. Denno hearing would have been different or that the circuit court would have found Petitioner’s statement involuntary and excluded it from his trial. The undersigned finds that Petitioner has failed to demonstrate that the PCR court erred in finding his plea counsel was effective under Strickland. Furthermore, the undersigned does not find that the PCR court’ s legal analysis under Strickland was objectively unreasonable. Here, Petitioner has failed to show that the state court’s ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Furthermore, the undersigned does not find that the state court unreasonably applied a governing legal principle or made an unreasonable determination of the facts in light of the evidence pursuant to § 2254(d)(1).
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31 Turning to the plea hearing, the undersigned also finds the plea colloquy confirms Petitioner’s knowing and informed plea. The United St ates Supreme Court has stated that “[i]t is beyond dispute that a guilty plea must be both knowing and voluntary.” Parke v. Raley, 506 U.S. 20, 29 (1992). The Court has also held that “[w]ai vers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circ*mstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). When a criminal defendant enters into a plea to settle a pending charge against him, he waives any independent constitutional claim regarding matters that took place before entry of the plea and can “only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel” was incompetent. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Additionally, persons who enter into pleas are generally bound by the statements that they make at the plea hearing. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong presumption of verity.”). Only limited exceptions to this rule are available, such as where credible facts are presented to show that the plea is “the product of such factors as misunderstanding, duress, or misrepresentation by others.” Id.; see also Walton v. Angelone, 321 F.3d 442, 462 (4th Cir. 2003) (citing Brady, 397 U.S. at 755, finding no cause for a court to disregard apparently truthful statements where petitioner “presented no evidence of sufficient evidentiary force, e.g., evidence that he was forced, coerced, threatened, or improperly induced into pleading guilty”). The Fourth Circui t Court of Appeals has held that a habeas petitioner is bound by his statements at a plea hearing unless he can prove facts justifying application of an exception by “clear and convincing evidence . . . .” Walton v. Angelone, 321 F.3d at 462; see also Crawford v. United States, 519 F.2d 347, 350 (4th Cir. 1974) (defendant’s
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32 plea statements “conclusive[]” absent defendant’s showing in collateral proceeding “a valid reason why he should be permitted to depart from the apparent truth of his earlier statement.”).
Following independent review of the record, the undersigned finds that the plea court conducted a thorough colloquy and closely examined Petitioner’s understanding of the charge and his available constitutional rights. The record discloses that Petitioner wanted to move forward with a negotiated plea that plea counsel and the State worked out on his behalf. App. 223-26. Further, Petitioner admitted he was not forced or threatened into entering his plea and testified he understood the trial court’s use of “forced you or threatened you.” App. 230. During the plea, the report on Petitioner’s mental comp etency to stand trial was admitted which concluded or recommended that Petitioner was competent to stand trial. App. 234-35. Therefore, the plea court determined Petitioner was competent to enter a guilty plea. App. 237. Ultimately, Petitioner pleaded guilty but mentally ill pursuant to section 17-24-20 of the South Carolina Code. App. 251-53. Accordingly, the plea court sentenced Petitioner to 37-years imprisonment. App. 279-80.
The undersigned finds that Petitioner has failed to demonstrate that the PCR court erred in finding his plea counsel was effective under Strickland. Furthermore, the undersigned does not find that the PCR court’ s legal analysis under Strickland was objectively unreasonable. The undersigned finds that this court is prohibited from granting habeas relief unless the state court’s decision contradicts, or is an unreasonable application of, “clea rly established Federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The PCR court’s determinations concerning plea counsel’s effectiveness during the suppression hearing do not contradict and are not an unreasonable application of federal law as determined by the
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33 Supreme Court of the United States. Therefore, this court cannot conclude that the PCR court’s determination on these issues was contrary to, or an unreasonable application of, clearly established federal law. Accordingly, the undersigned recommends granting Respondent’s Motion for Summary Judgment because Petitioner failed to demonstrate either prong of the Strickland test.
IV. Conclusion and Recommendation Therefore, based upon the foregoing, the undersigned recommends that Respondent’s Motion for Summary Judgment, ECF No. 15, be granted. Accordingly, the undersigned recommends this Petition be denied. IT IS SO RECOMMENDED.
September 25, 2017 Kaymani D. West Florence, South Carolina United States Magistrate Judge
The parties are directed to note the important information in the attached
“Notice of Right to File Objectio ns to Report and Recommendation.” 5:17-cv-01491-JFA Date Filed 09/25/17 Entry Number 23 Page 33 of 33
