Bowers v. McFadden, Civil Action No. 0:14-358-RMG

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtRichard Mark Gergel, United States District Judge
Citation153 F.Supp.3d 875
Parties James Bowers, Petitioner, v. Joseph McFadden, Respondent.
Docket NumberCivil Action No. 0:14-358-RMG
Decision Date21 December 2015

153 F.Supp.3d 875

James Bowers, Petitioner,
v.
Joseph McFadden, Respondent.

Civil Action No. 0:14-358-RMG

United States District Court, D. South Carolina.

Signed December 21, 2015


153 F.Supp.3d 876

Matthew Anderson Nickles, Richardson Patrick Westbrook and Brickman, Mt. Pleasant, SC, for Petitioner.

Donald John Zelenka, S.C. Attorney General's Office, Columbia, SC, for Respondent.

ORDER

Richard Mark Gergel, United States District Judge

This matter comes before the Court on cross motions of the Petitioner and the Respondent for summary judgment regarding Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. Nos. 47, 48). Petitioner, a state prisoner, is serving a sentence of life without parole (hereafter “LWOP”) under South Carolina's “two strike” statute, S.C. Code § 17–25–45. Petitioner asserts that his sentence of LWOP was a product of legal error because one of the two convictions upon which the sentence was imposed, a 1976 conviction for the common law crime of assault with intent to

153 F.Supp.3d 877

ravish, did not qualify as a “most serious offense” under the two strike statute, S.C. Code § 17–25–45(c)(1). Petitioner further asserts that he was deprived of effective assistance of counsel at his state criminal trial when his trial counsel failed to argue that the prior conviction of assault with intent to ravish did not qualify as a “most serious” offense and expressly conceded that this common law offense was “the same offense, basically” as the statutory offenses of assault with intent to commit criminal sexual conduct first or second degree. (Dkt. No. 39-2 at 112). Petitioner additionally argues that he was denied effective assistance of counsel at the post conviction relief (hereafter “PCR”) trial stage when his PCR counsel failed to raise the issue that his criminal trial counsel had been ineffective in failing to argue that the prior conviction of assault with intent to ravish did not fall with the list of “most serious” offenses set forth in South Carolina's two strike law.

The issue of whether Petitioner's 1976 conviction for assault with intent to ravish qualified as a most serious offense under the two strike statute was raised for the first time on Petitioner's appeal of the denial of PCR relief to the South Carolina Court of Appeals. The Court of Appeals stated that “we have concerns trial counsel did not challenge the use of the prior assault with intent to ravish conviction on the basis that it was not the equivalent to first or second degree CSC.”1 Bowers v. State , Case No. 2010–152167, 2013 WL 8538715 at *1 (S.C.App. June 19, 2013). The Appeals Court noted that “[i]t is possible the prior conviction could have met the elements of only third-degree CSC, and therefore, was not properly utilized for LWOP purposes.” Id. at *2 n. 1. The Appeals Court, however, determined that it need not address this issue because the PCR trial counsel had not raised the issue in the initial PCR proceeding below. The South Carolina Court of Appeals observed that “[t]he availability of any other collateral relief proceeding arising from the current PCR action, such as habeas corpus, is not before us.” Id. at *2 n. 2.

After exhausting his state PCR processes, Petitioner timely filed this petition for a writ of habeas corpus asserting that he had been denied effective assistance of counsel by his state criminal trial counsel and his state PCR trial counsel when both failed to raise and address the issue that his prior conviction for assault with intent to ravish did not qualify as a “most serious” offense under the two strike statute. Petitioner further argued that such errors by his state criminal trial counsel and his state trial PCR counsel wrongly resulted in a sentence of LWOP. (Dkt. No. 1).2 The matter was referred to the Magistrate Judge for pretrial handling. The Petitioner and the Respondent filed motions for summary judgment. The Magistrate Judge issued a Report and Recommendation on July 23, 2015, recommending that the Respondent's motion for summary judgment be granted and the Petitioner's motion for summary judgment be denied. (Dkt. No. 58). The Magistrate Judge found that the Petitioner's prior conviction of assault with the intent to ravish did, in fact, qualifY as assault with intent to commit criminal sexual conduct first degree if a modified categorical analysis used by the federal courts in Armed Career Criminal Act cases was utilized. Based on this determination, the Magistrate Judge concluded that Petitioner could not show that either of his prior counsel were deficient or that he was prejudiced by their performance. (Id. at 17-19). Petitioner timely filed objections to the Report and Recommendation.

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Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber , 423 U.S. 261, 270–71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court may “accept, reject, or modify, in whole or in part, the findings or recommendations by the Magistrate Judge.” 28 U.S.C. § 636(b)(1).

In accord with controlling statutory and appellate court legal standards, federal habeas review of state court criminal proceedings is highly deferential. A habeas petition can be granted only where the state court decision was “contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

Where a petitioner asserts a violation of his Sixth Amendment right to counsel as a result of ineffective assistance of counsel at the state criminal trial, he carries an onerous burden. First, he must show that counsel's performance “fell below an objective standard of reasonableness.” Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Again, this review is highly deferential and the attorney's conduct must be judged as of the time the legal services were rendered and be more than a dispute over reasonable professional judgment Id. at 689–90, 104 S.Ct. 2052. Second, even where the petitioner is able to show his counsel's performance was deficient, he is not entitled to relief unless he can also demonstrate that it was “reasonably likely” that a different result would have occurred. Id. at 696, 104 S.Ct. 2052. The Supreme Court more recently explained in Harrington v. Richter , 562 U.S. 86, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011) that the habeas petitioner must show that the chances of a different result were “substantial, not just conceivable.”

Petitioner is further obligated here, where he also claims ineffective assistance by his state trial PCR trial counsel in failing to raise the two strike issue, to establish cause for a his default in the initial PCR proceeding. This must be shown by demonstrating that the PCR trial counsel was ineffective under the standards of Strickland, showing both that the attorney's performance fell below an objective standard of reasonableness and it was “reasonably likely” a different result would have been obtained. In other words, “[t]o overcome the default, a prisoner must also demonstrate that the underlying ineffective assistance of counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez v. Ryan , ––– U.S. ––––, 132 S.Ct. 1309, 1318, 182 L.Ed.2d 272 (2012).

Factual Background

Petitioner was indicted on September 1, 1976 by the Jasper County, South Carolina Grand Jury on three counts: assault with intent to ravish, armed robbery and kidnapping. All three offenses were alleged to have occurred on July 12, 1976 and involved the same victim. (Dkt. No. 77). There was no allegation in the indictment that the offenses occurred in conjunction with each other. One week later, Petitioner pled guilty to assault with intent to ravish and robbery. He was sentenced to 21 years on the assault with intent to ravish and 7 years for robbery, with the sentences to be served concurrently. (Dkt. No. 50-1 at 5). Petitioner was thereafter convicted on October 25,2004 of armed robbery. The State

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asserted at the time of his 2004 sentencing that because of Petitioner's 1976 conviction of assault with intent to ravish and 2004 conviction for armed robbery, he was subject to a mandatory sentence of LWOP.

Immediately following the return of the jury's verdict for armed robbery, the state trial court proceeded to sentence Petitioner. The state trial judge observed that the State was relying on the prior conviction for assault with intent to ravish to support its argument for LWOP. Petitioner's criminal trial counsel then responded that he was satisfied that the common law offense of assault with intent to ravish was “the same basically” as assault with intent to commit criminal sexual conduct first or second degree. (Dkt. No. 39-2 at 112). The state trial judge agreed, observing that the “assault with intent to ravish is the...

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