Folkes v. Nelsen

• Decision Date: 10 May 2022
• Docket Number: 21-6217
• Parties: Clinton FOLKES, Petitioner – Appellee, v. Warden NELSEN, Respondent – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

34 F.4th 258

Clinton FOLKES, Petitioner – Appellee,

v.Warden NELSEN, Respondent – Appellant.

No. 21-6217

United States Court of Appeals, Fourth Circuit.

Argued: September 17, 2021

Decided: May 10, 2022

ARGUED: Michael Douglas Ross, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellant. Jason Scott Luck, JASON SCOTT LUCK ATTORNEY AT LAW, Bennettsville, South Carolina, for Appellee. ON BRIEF: Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, Melody J. Brown, Senior Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellant.

Before AGEE and WYNN, Circuit Judges, and Frank W. VOLK, United States District Judge for the Southern District of West Virginia, sitting by designation.

Reversed and remanded with instructions by published opinion. Judge Agee wrote the opinion, in which Judge Volk joined. Judge Wynn wrote a dissenting opinion.

AGEE, Circuit Judge:

Clinton Folkes is serving a life sentence upon a South Carolina conviction for assault and battery with intent to kill. One claim in Folkes' state habeas petition alleged that his state appellate counsel "was ineffective for failing to file a Petition for Rehearing in the Court of Appeals thereby depriving [him] of his right to seek certiorari in the Supreme Court of South Carolina." J.A. 679. The state habeas court denied relief on that—and all other—claims. Folkes then filed a 28 U.S.C. § 2254 petition in the U.S. District Court for the District of South Carolina again alleging, verbatim, that appellate counsel had been ineffective by "failing to file a Petition for Rehearing in the Court of Appeals." J.A. 28. The district court granted § 2254 relief, but not on the ground Folkes raised. Instead, the district court determined Folkes was entitled to relief because his appellate counsel (1) failed "to timely advise [Folkes] of the adverse decision of the Court of Appeals on his direct appeal and of his right to seek further appellate review," and (2) sent a letter containing counsel's "forged signature" that "inaccurately inform[ed] [Folkes] that his state court appellate rights had been exhausted." J.A. 160.

The State of South Carolina¹ appeals, arguing that the district court's judgment conflicts with the rigorous standards that apply when a state prisoner seeks to challenge the constitutionality of his state sentence in federal court. We agree with the State and hold that the district court impermissibly altered the claim presented in Folkes' § 2254 petition and thus granted relief on grounds that were not properly before it. As for the claim Folkes actually raised, the district court properly held that he had not shown that he was entitled to relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). And even had Folkes' petition raised the expanded claims recognized by the district court and the dissenting opinion, Folkes would not be entitled to federal habeas relief because the Supreme Court has held that no ineffective assistance of counsel claim can arise based on conduct relating to discretionary, subsequent appeals. Accordingly, we reverse the judgment of the district court and remand with instructions to deny Folkes' petition.

I.

In 2008, a South Carolina jury convicted Folkes of assault and battery with intent to kill, and he was sentenced to life imprisonment. See Folkes v. Nelsen , No. 2:19-0760-RMG, 2021 WL 62577, at *1 (D.S.C. Jan. 7, 2021) (describing Folkes' conviction as "stem[ming] from a July 2007 physical fight during which [Folkes] cut a man in the neck with a knife and was heard at the time, by witnesses who testified at trial, to have said, ‘I should have killed you’ ").

On direct appeal, Folkes was represented by court-appointed counsel, Celia Robinson, who worked for the South Carolina Commission on Indigent Defense ("the Commission"). The appellate brief argued that the trial court had erred by refusing to give an instruction about the intent required to convict on a lesser-included offense. After briefing concluded (the appeal was not scheduled for oral argument), Robinson left her position with the Commission without notifying either Folkes or the appellate court. Ten days after Robinson's departure, the South Carolina Court of Appeals issued a decision affirming Folkes' conviction. See State v. Folkes , No. 2010-UP-420, 2010 WL 10080232 (S.C. Ct. App. Sept. 24, 2010) (per curiam).

Several days after the decision on direct appeal was issued, Folkes received a letter on Commission letterhead purporting to bear Robinson's signature but dated two weeks after the termination of her employment. This September 2010 letter informed Folkes—incorrectly—that the South Carolina Court of Appeals had denied his petition for writ of certiorari and that his state court remedies had been exhausted. It also provided instructions about Folkes' right to file a federal petition for a writ of habeas corpus within one year of the decision.

Notwithstanding the September 2010 letter's incorrect information, the following month, Folkes filed a timely application for post-conviction relief in South Carolina state court ("the state PCR court"). He initially filed pro se , but later was represented by counsel, who filed an amended application raising additional claims.² In relevant part, the amended PCR application alleged that "Appellate Counsel was ineffective for failing to file a Petition for Rehearing in the Court of Appeals thereby depriving [Folkes] of his right to seek certiorari in the Supreme Court of South Carolina." J.A. 679. Specifically, it argued that because South Carolina procedural rules require filing a petition for rehearing in the intermediate appellate court as a prerequisite for further review in the state supreme court, counsel's failure to file a petition for rehearing deprived Folkes of the opportunity to pursue what he contended would have been a meritorious challenge to the jury instructions.

The state PCR court held a hearing at which Folkes, Robinson, and her Commission supervisor testified. Folkes testified that he was unaware that Robinson had left her position and that he "would have wanted his attorney to petition for rehearing and certiorari to have his case reviewed by the South Carolina Supreme Court." J.A. 793. Robinson testified that had she not left her position, "she would have petitioned for rehearing at the Court of Appeals and then for certiorari at the Supreme Court" because she thought the jury instruction claim was worth pursuing. J.A. 800. Robinson's supervisor testified that he also believed Folkes had a meritorious claim and that he could not explain why his office had not pursued it at the time. He testified that after Robinson's departure, he had reviewed all decisions issued in her pending cases and decided how to proceed, but that he had no independent recollection of reviewing the decision in Folkes' appeal or directing a particular course of action. Nor could he explain the September 2010 letter Folkes received from the Commission, other than noting that it appeared a paralegal sent the wrong form letter. Both Robinson and her supervisor testified that attorneys—not defendants—ultimately decided whether to file petitions for rehearing and for certiorari and that both stages of appellate review were discretionary with the court.

The state PCR court denied relief, concluding that an ineffective assistance of counsel ("IAC") claim cannot be brought based on appellate counsel's failure to file a petition for rehearing in the court of appeals. The court relied on Wainwright v. Torna , 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam), and Ross v. Moffitt , 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), to note that defendants have "no constitutional right to the effective assistance of counsel when seeking discretionary appellate review." J.A. 802. In addition, the court pointed to multiple Supreme Court of South Carolina decisions reiterating that both rehearing in the intermediate appellate court and certiorari to the state supreme court are discretionary, and that appellate counsel has no duty to pursue either course. Drawing from both lines of cases, the court concluded that Folkes' appellate counsel could not have been ineffective for failing to file a petition seeking purely discretionary review.

Folkes, still represented by counsel, petitioned the Supreme Court of South Carolina for certiorari to review the denial of his IAC claim, framing the issue as follows:

Did the lower court err denying [Folkes] relief where the record below demonstrates that he meet [sic] his burden of proof concerning his allegation that his Sixth and Fourteenth Amendment right to effective assistance of appellate counsel was violated on direct appeal where Appellate Counsel failed to file a Petition for Rehearing in the Court of Appeals thereby depriving [him] of his right to seek certiorari in the Supreme Court of South Carolina?

J.A. 833. Consistent with this issue statement, Folkes' substantive argument pressed the missed opportunity for the state supreme court to consider the propriety of the jury instructions given that appellate counsel had not filed the requisite petition for rehearing in the court of appeals to allow further review. The petition was summarily denied.³

Next, Folkes timely filed a pro se § 2254 petition in the U.S. District Court for the District of South Carolina. The third ground for relief raised in Folkes' § 2254 petition copied, verbatim, the claim identified in his state PCR application: "Appellate Counsel was ineffective for failing to file a Petition for Rehearing in the Court of Appeals thereby depriving the Applicant of his right to seek certiorari in the Supreme Court of South Carolina." J.A. 28; accord J.A. 679. His § 2254 petition later characterized the issue using the identical question he had raised in his state petition for...