Dickerson v. McCabe, Civil Action No.: 8:11-cv-01412-RBH

• Decision Date: 12 September 2012
• Docket Number: Civil Action No.: 8:11-cv-01412-RBH
• Parties: Joseph Dickerson, Petitioner, v. Warden Wayne McCabe, Liber Correctional Institution, Respondent.
• Court: U.S. District Court — District of South Carolina

Joseph Dickerson, Petitioner,

v.Warden Wayne McCabe, Liber Correctional Institution, Respondent.

Civil Action No.: 8:11-cv-01412-RBH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION

Dated: September 12, 2012

ORDER

Petitioner, a state prisoner proceeding pro se, initiated this suit by filing his Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus on June 13, 2011. [§ 2254 Petition, Doc. # 1.] This matter is now before the Court with the Report and Recommendation ("R&R") of United States Magistrate Judge Jacquelyn D. Austin¹ filed on May 18, 2012. [R&R, Doc. # 35.] In her R&R, the magistrate judge recommends that Respondent's Motion for Summary Judgment [Doc. # 19] be granted. Petitioner timely filed objections² to the R&R. [Obj., Doc. # 44.]

Background³

On September 24, 2002, after a previous trial ended a hung jury, Petitioner was convicted by a jury for drug-related offences and sentenced to twenty-five years imprisonment, to run consecutive to the twenty-five year sentence he was currently serving for armed robbery convictions.

Petitioner appealed his case to the South Carolina Court of Appeals, alleging that the lower court erred in denying his motion for a directed verdict. The South Carolina Court of Appeals affirmed Petitioner's conviction in July 2004.

On March 28, 2005, Petitioner filed an application for post-conviction relief ("PCR"), alleging numerous grounds, which was dismissed on December 16, 2008. The dismissal was amended on May 29, 2009, to address issues raised pursuant to South Carolina Rule of Civil Procedure 59(e). Petitioner, through counsel, filed a petition for writ of certiorari contesting the PCR court's finding on only one ground: that trial counsel was ineffective for failing to obtain or to present during trial exculpatory testimony. In April 2011, the South Carolina Supreme Court denied the petition for certiorari. On June 7, 2011, Petitioner filed his § 2254 Petition raising the following issues:

Ground One: The trial court's denial of a directed verdict was objectively unreasonable based on the facts presented during trial; and the appellate court's subsequent denial was also objectively unreasonable based on the facts presented during trial.

Ground Two: The state courts erred in failing to find counsel ineffective when counsel failed to obtain and present exculpatory testimony, thus denying Petitioner the right to present favorable witness for his defense.

Ground Three: The PCR court erred in failing to find counsel ineffective for failure to adequately prepare for trial.

Ground Four: The PCR court erred in failing to find counsel ineffective for failing to object to certain evidence, mainly counsel's failure to challenge the handling of the drugs.

Ground Five: The PCR court erred in failing to find counsel ineffective for failing to obtain a copy of Petitioner's first trial transcript in order to impeach the State's witnesses during the second trial.

Ground Six: The PCR court erred in failing to find counsel ineffective for failing to obtain a copy of the Bond hearing transcript which would corroborated Petitioner's version of events.

On October 3, 2011, Respondent timely filed his Motion for Summary Judgment, along with a return and memorandum in support. [Mot. Summ. J., Doc. # 19-20.] Because Petitioner is proceeding pro se, the magistrate judge entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), on October 4, 2011, advising Petitioner of the motion for summary judgment procedures and the possible consequences if he failed to adequately respond. Petitioner filed his Response in Opposition to the Summary Judgment Motion on November 17, 2011, to which Respondent filed a Reply.

Standard of Review

The magistrate judge makes only a recommendation to the district court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of those portions of the R&R to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

The court is obligated to conduct a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) ("[D]e novo review [is] unnecessary in . . . situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendation."). The Court reviews only for clear error in the absence of a specific objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir.2005). Furthermore, in the absence of specific objections to the R&R, this Court is not required to give any explanation for adopting the recommendation. See Diamond, 416 F.3d at 315; Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).

Discussion

Petitioner raises seven objections to the R&R, which the Court discusses as appropriately grouped below.

I. Procedural default

Petitioner first argues that the magistrate erred in applying procedural default to Grounds Three, Five, and Six⁴ of his § 2254 Petition. [Obj., Doc. # 44, at 5-6, 14-18.] Specifically, Petitioner argues that his PCR appellate counsel filed a brief containing only one issue, and that counsel should have filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988), which would have allowed Petitioner to present the issues pro se.[Id. at 4-5.] This failure, posits Petitioner without citing any applicable authority, "render[s] the state's corrective process inadequate." [Id. at 6.]

Petitioner's objection is without merit. Petitioner concedes that the grounds at issue were not submitted to the appellate court. [See Obj., Doc. # 44, at 5-6, 14-18.] Thus, in spite of Petitioner's contention to the contrary, the law is clear that "claims which were not presented to the South Carolina Supreme Court are procedurally barred. These claims were adequately raised in the PCR process and rejected by the PCR court. However, the failure to present these claims in the petition for writ of certiorari is fatal absent a showing of cause, prejudice and/or actual innocense." Mendenhall v. Cohen, No. 3:10-1868, 2011 WL 1119178, at *6 (D.S.C. March 4, 2011), report and recommendation adopted by 2011 WL 1119065 (D.S.C. March 24, 2011).

In his second and third objections, Petitioner argues that he did, in fact, have cause for not submitting the issues in Grounds Three, Five, and Six to the appellate courts. [Obj., Doc. # 44, at 6-9, 14-15.] In these objections, Petitioner again argues that he was not afforded the opportunity to file a pro se brief rasing these issues, and that his PCR appellate attorney's failure to either file a Johnson/Anders brief, or include these issues in the brief field by counsel, amounts to a showing of cause. [Id.]

In the context of procedurally barred claims, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with the state rule[,]" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Smith v. Murray, 477 U.S. 527, 533 (1986) (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). However, "the South Carolina Supreme Court has held that there is no right under the Sixth Amendment or the South Carolina Constitution to hybrid representation, and it will not accept substantive documents filed prose by persons represented by counsel." State v. Stuckey, 333 S.C. 56, 58. 508 S.E.2d 564, 564-65 (1998). Further, as the magistrate noted, "the existence of cause must ordinarily turn on whether the petitioner can show some objective factor external to the defense impeded counsel's or the petitioner's efforts to comply with the state's procedural rule." [See R&R, Doc. # 35, at 23 (citing Murray, 477 U.S. at 533.]

Petitioner argues his PCR appellate counsel raised only one issue in a meritorious petition for writ of certiorari, which precluded Petitioner from filing a pro se brief raising additional issues. However, an allegation that PCR appellate counsel was ineffective for raising only one issue is insufficient to allege cause for procedural default or undue prejudice from an alleged constitutional violation. "[T]he Fourth Circuit has unambiguously held that there is no constitutional right to counsel at the post-conviction relief stage, and, thus, there can be no error which implicates the Sixth Amendment." Longworth v. Ozmint, 302 F. Supp.2d 535, 545 D.S.C. (2003) (discussing the ability of a litigant in a § 2254 proceeding to argue that he could show cause for default by arguing that his PCR appellate counsel erred in not including issues on appeal, and ruling that such an argument is not sufficient to show cause) (citing Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir.1997) (en banc)). "Thus, because nothing impeded Petitioner's counsel from filing a brief with Petitioner's additional claims, Petitioner cannot show cause for failure to comply with the procedural rule and his objection is overruled." Bryant v. Warden, Broad River Corr. Inst., No. 5:11-1315-RBH, 2012 WL 3597652, at *3 (D.S.C. Aug. 20, 2012) (dealing with near identical issue where a petitioner argued cause based on PCR appellate counsel's inclusion of only one issue in his brief).

There being no established "cause," this Court may not consider whether Petitioner was "prejudiced." See Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th...