Gibson v. Bazzle

• Decision Date: 15 August 2005
• Docket Number: C.A. No. 6 04-22489-PMD.
• Citation: 383 F.Supp.2d 870
• Parties: Donnie GIBSON, # 082710, Petitioner, v. E. Richard BAZZLE, Warden; and Henry Dargan McMaster, Attorney General of South Carolina, Respondents.
• Court: U.S. District Court — District of South Carolina

383 F.Supp.2d 870

Donnie GIBSON, # 082710, Petitioner, v. E. Richard BAZZLE, Warden; and Henry Dargan McMaster, Attorney General of South Carolina, Respondents.

C.A. No. 6 04-22489-PMD.

United States District Court, D. South Carolina, Beaufort Division.

August 15, 2005.

Donnie R. Gibson, Pelzer, SC, pro se.

William Edgar Salter, III, SC Attorney General's Office, Columbia, SC, for Respondents.

ORDER

DUFFY, District Judge.

This matter is before the court upon the Magistrate Judge's recommendation that Respondents' Motion for Summary Judgement be granted on Donnie Gibson's ("Gibson") petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. The record includes a report and recommendation of the United States Magistrate Judge ("the R & R") made in accordance with 28 U.S.C. § 636(b)(1)(B). A party may object, in writing, to a Magistrate Judge's report within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). The Magistrate Judge's R & R was filed on June 22, 2005. Petitioner Gibson has filed timely objections to the R & R.

PROCEDURAL BACKGROUND

Gibson and his brother David were convicted of murdering Marvin Bramlett ("Bramlett") in Seneca, South Carolina on July 23, 1976. After the conclusion of the jury trial, the judge sentenced Gibson and his brother to life imprisonment. Gibson did not appeal his conviction or sentence. Instead, Gibson filed an application for post-conviction relief ("PCR") in the state circuit court in 1981. This PCR application was denied on December 18, 1981. The Supreme Court subsequently denied relief on January 24, 1983.

Thereafter, in 1995, Gibson filed what he termed a writ of habeas corpus in circuit court in South Carolina, in which he largely complained that the malice charge given in his murder trial allowed the jury to infer malice (in violation of Sandstrom v Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)), and impermissibly shifted the burden of proof away from the state. This petition was dismissed as successive, and Gibson appealed to the state Supreme Court. The South Carolina Supreme Court remanded the case to the circuit court to consider whether (1) PCR was unavailable, (2) all other remedies had been exhausted, and (3) the issues Gibson raised in his "habeas" proceeding could have been raised in his prior PCR application. See Gibson v. State, 329 S.C. 37, 495 S.E.2d 426 (1998). On remand, the circuit court held that Gibson's claims were successive and should be dismissed (and that Gibson was not entitled to relief under the PCR Act or a state court writ of habeas corpus).

Gibson then petitioned the South Carolina Supreme Court for a writ of certiorari. On October 25, 2001, the South Carolina Supreme Court granted certiorari on the question of whether "the lower court erred in summarily dismissing the Petitioner's application for post-conviction relief as successive because his claims were unavailable at his trial or his previous PCR action." (R & R at 8). On August 25, 2003, the state Supreme Court held that Gibson was barred from raising his Sandstrom claim in his habeas petition, because that claim had been available in 1979 during the pendency of his first PCR application. See Gibson v. State, 355 S.C. 429, 586 S.E.2d 119, 121 (2003) ("Since the U.S. Supreme Court decided Sandstrom in 1979, Donnie Ray could have raised the issue in 1981, in his first application. Therefore, we find that he should not be able to raise the issue in the present PCR application."). Gibson then instigated the present habeas action on October 6, 2004.¹

STANDARD OF REVIEW

A. Legal Standard for Summary Judgment

To grant a motion for summary judgment, this court must find that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The judge is not to weigh the evidence, but rather to determine if there is a genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no material factual disputes remain, then summary judgment should be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All evidence should be viewed in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir.1990).

B. The Magistrate Judge's R & R

This court is charged with conducting a de novo review of any portion of the R & R to which a specific objection is registered and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). Any written objection must specifically identify the portions of the R & R to which objections are made and the basis for those objections. Id. After a de novo review of the entire record, including the R & R and Gibson's objections, the court concludes that the R & R sets forth the relevant facts and applies the correct principles of law. Accordingly, the court adopts the R & R in full and specifically incorporates it into this Order. As the R & R sets forth the relevant factual and procedural background in more detail than discussed above, the court incorporates those sections without a further recitation.

OBJECTIONS

The Magistrate recommended that Respondents' motion for summary judgment be granted as to all of Gibson's claims. First, the Magistrate concluded that Gibson's claims were barred by the one year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Next, the Magistrate concluded that, even assuming Gibson's claims were not time-barred, each claim was procedurally defaulted, and Gibson could not demonstrate cause and prejudice to excuse his procedural default. Gibson specifically objects to each of the Magistrate's conclusions. The court addresses his objections seriatim.

A. Timeliness under the AEDPA

Gibson first objects to the Magistrate Judge's conclusion that his petition is time-barred. Gibson's petition is governed by AEDPA, which enabled prisoners whose convictions were final at the time of AEDPA's enactment to file their habeas corpus petitions within one year. See, e.g., Brown v. Angelone, 150 F.3d 370, 375 (4th Cir.1998) ("[P]risoners whose convictions became final any time prior to the effective date of the AEDPA had until April 23, 1997, to file their ... § 2255 motion[s]."). Additionally, § 2244(d)(2) provides that AEDPA's one-year limitations period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C.A. § 2244(d)(2). "[U]nder § 2244(d)(2) the entire period of state post-conviction proceedings, from initial filing to final disposition by the highest state court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review), is tolled from the limitations period for federal habeas corpus petitioners...." Taylor v. Lee, 186 F.3d 557, 561 (4th Cir.1999).

Gibson's state conviction became final in 1976, almost 20 years before AEDPA was enacted.² As the Magistrate reasoned, however, when AEDPA was enacted in 1996, the petitioner had a "properly filed" PCR action pending, thus tolling the limitations period. See R & R at 11. Gibson's state PCR action concluded when the South Carolina Supreme Court remitted the case to the trial court on September 10, 2003.³ The Magistrate concluded that the limitations period began on this date and so had run for 391 days when the petitioner's habeas petition was filed on October 6, 2004.

In his Objections, Gibson claims that he delivered the petition to prison officials for mailing on September 3, 2004,⁴ a date that would have been within the AEDPA one-year limitations period. As the petition is signed by Gibson on that date, and because there does not appear to be a date stamp from the prison mail room, the court credits Gibson's allegation, and considers the merits of his petition (as the Magistrate did).

B. Procedural Default

The Magistrate Judge alternatively concluded that each of Gibson's claims were procedurally defaulted and, therefore, not subject to review in this habeas action. Gibson objects to this conclusion and further argues that he can overcome any procedural default.

1. Ground One

In Ground One, Gibson claims that the malice instruction⁵ from his 1976 trial violated Sandstrom, 442 U.S. at 524, 99 S.Ct. 2450.⁶ While Gibson attempted to present this issue to the South Carolina Supreme Court, that court rejected his claim on the basis of South Carolina's bar against successive habeas petitions.⁷ As the Magistrate reasoned, "absent cause and prejudice or a fundamental miscarriage of justice, a federal habeas court may not review constitutional claims when a state court has declined to consider their merits on the basis of an adequate and independent state procedural rule." Mackall v. Angelone, 131 F.3d 442, 445 (4th Cir.1997); see also Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The section of the South Carolina code barring successive petitions, S.C.Code Ann. § 17-27-90,⁸ constitutes an adequate and independent state-law ground for decision. See Wilson v. Moore, 178 F.3d 266, 279 (4th Cir.1999). Accordingly, as the Magistrate concluded, because the South Carolina Supreme Court refused to consider Gibson's Sandstrom claim on the basis that he had failed to present it in his first PCR application Gibson is barred from raising Ground One in this habeas petition.

To the extent that Gibson contends that the failure to consider this claim will result in a fundamental miscarriage of justice,⁹ the court disagrees. Under this narrow exception to the cause requirement, federal habeas ...