Hill v. Cohen
| Decision Date | 20 March 2020 |
| Docket Number | Case No. 2:19-cv-2658-JMC-MGB |
| Parties | Jomer Hill, #264230, Petitioner, v. Levern Cohen and State of South Carolina, Respondents. |
| Court | U.S. District Court — District of South Carolina |
Jomer Hill is a pro se state prisoner seeking habeas corpus under 28 U.S.C. § 2254.1 Levern Cohen, Hill's warden, and the State of South Carolina have moved for summary judgment. (Dkt. No. 45). Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review it and submit a recommendation to the District Judge. For the following reasons, the undersigned recommends granting the motion and dismissing this action with prejudice.
Hill is serving fifty years in prison on two 2006 murder convictions. (Dkt. No. 1 at 3.) After the state Court of Appeals affirmed his convictions, see State v. Hill, 675 S.E.2d 764 (S.C. Ct. App. 2009), he unsuccessfully sought post-conviction relief in state court, see Hill v. State, 782 S.E.2d 414 (S.C. Ct. App. 2016). Hill then petitioned this Court for habeas corpus under 28 U.S.C. § 2254. The Court found his petition lacked merit and denied it. See Hill v. Cartledge, No. 2:16-cv-483-JMC, 2017 WL 892574 (D.S.C. Mar. 7, 2017).
In July 2019, Hill filed motions in his state-court criminal case seeking forensic DNA testing and a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). (Dkt. No. 1 at 4.) See S.C. Code Ann. § 17-28-40(B) (). He also applied to be released on bond pending the resolution of those motions. (Dkt. No. 1-1 at 3, 9-11.) On August 5, 2019, the state circuit court denied Hill's bond application without explanation. It denied his Franks motion the next day. (Id. at 3; Dkt. No. 12-1 at 1). The DNA testing application is still pending. (See Dkt. No. 40-1 at 2; Dkt. No. 43.)2
Hill has not appealed the denial of his bond application. (Dkt. No. 1 at 2.) Instead, he is challenging that denial in the § 2254 petition he has filed here. In other words, the object of his habeas petition is to obtain bond while he litigates the Franks motion and his DNA testing application in the state courts. Hill appears to be arguing the summary denial of bail was unconstitutional. (See Dkt. No. 1 at 1, 8; see also Dkt. No. 17 at 2.)
Respondents have moved for summary judgment. (Dkt. No. 45.) Hill has responded to the motion (Dkt. No. 48), making this matter ripe for adjudication.
Summary judgment is appropriate only if the moving party shows that "there is no genuine dispute as to any material fact" and that he is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Respondents contend Hill's petition lacks merit. (See Dkt. No. 44 at 14-16.) Their primary contention, however, is that the Court lacks jurisdiction over the petition. (Id. at 9-10.) Although the undersigned believes the Court has jurisdiction, she agrees the petition lacks merit.
As mentioned, Hill has already lost one § 2254 case. A habeas petitioner incarcerated pursuant to a state-court judgment cannot bring a "second or successive" motion for federal habeas relief without authorization from the appropriate court of appeals. 28 U.S.C. § 2244(b)(3). "Only in limited, statutorily prescribed circumstances will a court of appeals grant such authorization." In re Gray, 850 F.3d 139, 140 (4th Cir. 2017). The United States Court of Appeals for the Fourth Circuit has not given Hill permission to file the petition at issue. The question, then, is whether Hill's petition is "second or successive" under § 2244(b)(3). See id. (). Because that is a jurisdictional question, see United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003), the Court should answer it before addressing any other issues in this case.
Respondents contend Hill's petition is successive, but they do not explain why. (Dkt. No. 44 at 9.) The mere fact that the petition is Hill's second is not dispositive. See Panetti v. Quarterman, 551 U.S. 930, 944 (2007) (). Thus, further analysis is needed.
The phrase "second or successive" in § 2244(b)(3) "is not-self defining," Panetti, 551 U.S. at 943, and Congress did not define it, Magwood v. Patterson, 561 U.S. 320, 331 (2010). The phrase "takes its full meaning" from Supreme Court decisions, Panetti, 551 U.S. at 944, and incorporates the traditional "abuse-of-the-writ doctrine" for habeas cases, Magwood, 561 U.S. at 334 (citing Panetti, 551 U.S. at 947) (Kennedy, J., dissenting).3 That doctrine comes into play when a prisoner files a petition "challenging an undisturbed state-court judgment for the second time." Magwood, 561 U.S. at 343 (Breyer, J., concurring in part and concurring in judgment). A claim raised in a subsequent habeas petitions is "abusive" if the prisoner could have asserted it when he filed his prior petition. In re Wright, 826 F.3d 774, 784 (4th Cir. 2016). "This principle 'is not confined to instances where litigants deliberately abandon claims; it also applies to instances where litigants, through inexcusable neglect, fail to raise available claims.'" Id. (quoting Noble v. Barnett, 24 F.3d 582, 585 (4th Cir. 1994)). If the subsequent petition contains an abusive claim, it is "second or successive" under § 2244(b)(3). See id. at 785.
Hill's current petition contains just one claim: unconstitutional denial of bond.4 That claim arose in August 2019, more than three years after Hill filed his first habeas petition and more than two years after this Court denied that petition. The claim therefore appears to not be abusive; the Warden has not offered any argument as to why it would be. Consequently, the petition is not second or successive, which means Hill did not need the Fourth Circuit's permission to file it. Thus, § 2244(b)(3) does not deprive the Court of jurisdiction over Hill's petition.
Respondents raise several other arguments for why the Court should not reach the merits of this petition. (See Dkt. No. 44 at 11-16.) The Court need not address them, as Hill's claim ultimately lacks merit.
"Although federal courts can review state bail orders through habeas corpus . . . , federal intervention in this discretionary determination is rare." Lloyd v. Morgan, No. CV JKB-16-2159, 2016 WL 4474838, at *2 (D. Md. Aug. 24, 2016). Hill has not identified anything that makes this one of those rare moments to intervene, and the undersigned sees no reason to overrule the state court.
Hill appears to be attacking the state court's decision on the basis that the court gave no reason for denying his request. (See Dkt. No. 1 at 1, 8; see also Dkt. No. 17 at 2.) The Constitution does not require state courts to explain themselves when they deny bond requests. Jenkins v. Harvey, 634 F.2d 130, 132 (4th Cir. 1980). Although an explanation "is desirable," its absence does not warrant federal habeas relief so long as the record contains a rational basis for denying the request. Id. The materials before the Court reveal a rational basis: Hill is serving fifty years in prison for murdering two people, and he has lost all his prior challenges to those convictions. Those factors are sufficient for this Court to deny relief. Cf. Ragsdale v. South Carolina, 865 F.2d 1259 (4th Cir. 1989) (per curiam) (table) (); Jenkins, 634 F.2d at 132 ().
Hill also argues he is entitled to relief under Wolfe v. Clarke, 819 F. Supp. 2d 574 (E.D. Va. 2011). (Dkt. No. 1 at 1, 8.) The undersigned disagrees. Wolfe involved a habeas petitioner who had already been granted a writ of habeas corpus; he was asking the district court to release him on bond while his case was on appeal at the Fourth Circuit. 819 F. Supp. 2d at 577. The facts of Wolfe thus differ greatly from Hill's circumstances; no court has ever granted Hill any relief.
In sum, although the Court has jurisdiction over Hill's petition, the undersigned believes that no material facts are in dispute and that Respondents are entitled to judgment as a matter of law on the merits. The undersigned therefore recommends granting their motion.
If the petition is dismissed, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that "reasonable jurists would find the district court's...
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