Ivey v. Warden of Kirkland Corr. Inst.
| Decision Date | 31 August 2016 |
| Docket Number | C/A No.: 1:16-1037-JFA-SVH |
| Court | U.S. District Court — District of South Carolina |
| Parties | Rodney Dale Ivey, #324929, Petitioner, v. Warden of Kirkland Correctional Institution, Respondent. |
Rodney Dale Ivey ("Petitioner") is an inmate at the Kirkland Correctional Institution of the South Carolina Department of Corrections who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment and return. [ECF Nos. 12, 13]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 14]. Petitioner filed a response on July 12, 2016, and Respondent filed a reply on July 14, 2016. [ECF Nos. 16, 17].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted.
According to the facts presented by the solicitor during the guilty plea hearing, Petitioner and his wife, Devin Hamm Ivey ("Ivey"), were staying in a hotel on June 9, 2011. [ECF No. 13-1 at 8-9]. Ivey decided to leave and Petitioner choked her until she went limp. Id. at 9-10. Petitioner then put Ivey in the bed and he lay with her body all night. Id. at 10. The next morning, Petitioner wrapped Ivey's body in a sheet before leaving her body on a dirt road. Id. Petitioner reported Ivey missing and told investigators several different stories concerning the events of June 9. Id. at 10-11. Ivey's body was found six days later. Id. at 11.
Petitioner was indicted by the Florence County grand jury during the January 2012 term of court for murder (2012-GS-21-119). [ECF No. 13-1 at 81-82]. Petitioner was represented by Scott P. Floyd, Esq., and on June 8, 2012, Petitioner pled guilty to murder before the Honorable Michael G. Nettles, Circuit Court Judge. Id. at 3-32. Judge Nettles sentenced Petitioner to life in prison. Id. at 32.
Petitioner filed an appeal from his guilty plea and sentence on or about June 9, 2012, id. at 34, which the South Carolina Court of Appeals dismissed on April 4, 2013. [ECF No. 13-2]. The remittitur was issued on April 22, 2013. [ECF No. 13-3].
Petitioner filed an application for post-conviction relief ("PCR") on October 13, 2013, in which he alleged ineffective assistance of counsel and violation of due process claims. [ECF No. 13-1 at 36-42]. A PCR evidentiary hearing was held before theHonorable D. Craig Brown, Circuit Court Judge, on April 15, 2015, at which Petitioner and his counsel, Josh Thomas, Esq., appeared. Id. at 50-74. On June 1, 2015, Judge Brown filed an order of dismissal. Id. at 75-80.
Petitioner appealed from the denial of PCR. Appellate Defender John H. Strom of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. [ECF No. 13-4]., Attorney Strom filed a Johnson petition1 for writ of certiorari in the South Carolina Supreme Court on or about December 9, 2015, raising the following issue:
Did the PCR court err in finding plea counsel provided effective assistance of counsel where Petitioner asserts that he would have gone to trial had plea counsel not told him the plea judge would sentence him to no more than thirty years imprisonment?
Id. at 3. Petitioner's counsel asserted that the petition was without merit and requested permission to withdraw from further representation. Id. at 11. On March 7, 2016, the South Carolina Supreme Court denied the petition for certiorari. [ECF No. 13-5]. The remittitur was issued on March 25, 2016. [ECF No. 13-6].
Petitioner filed this federal petition for a writ of habeas corpus on March 30, 2016. [ECF No. 1-2 at 1].2
Petitioner states the following ground in his petition:
[ECF No. 1 at 5] (errors in original).
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonablejury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
Because Petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts inlight of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States[,]" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
28 U.S.C. § 2254.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1)through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court....
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