Taylor v. McKie

• Decision Date: 31 July 2014
• Docket Number: No. 5:13-cv-02239-RMG,5:13-cv-02239-RMG
• Citation: Taylor v. McKie, No. 5:13-cv-02239-RMG (D. S.C. Jul 31, 2014)
• Court: U.S. District Court — District of South Carolina
• Parties: Robert Troy Taylor, #315084, Petitioner, v. Warden Bernard McKie, Respondent.

Robert Troy Taylor, #315084, Petitioner, v. Warden Bernard McKie, Respondent.

No. 5:13-cv-02239-RMG

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

July 31, 2014

ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the Magistrate Judge (Dkt. No. 38), recommending that Respondent's Motion for Summary Judgment be granted.For the reasons stated below, the CourtADOPTS the R & R in part and GRANTS Respondent's Motion for Summary Judgment(Dkt. No. 25).

I.Background

On April 20, 2006, Petitioner pleaded guilty in Georgetown County to two counts of lewd acts on a minor and one count of second degree criminal sexual conduct ("CSC") with a minor.(Dkt.No. 24-1at 6-47).As to the CSC charge.Petitioner waived presentment to the grand jury.(Id. at 9-10).Petitioner was sentenced to eight years, suspended on the service of five years, with Petitioner to be placed on probation for the last three years of his sentence.(Id. at 47).Petitioner did not appeal his plea or sentence,

While Petitioner's Georgetown County charges were pending, Petitioner was arrested and charged with kidnapping and CSC with a minor in Williamsburg County.(Dkt.No. 24-4at 39).After Petitioner pleaded guilty on the Georgetown County charges, he proceeded to trial on the CSC charge in Williamsburg County and was found guilty.(Id.).Because the Georgetown CSCconviction counted as a "most serious" conviction under South Carolina's two-strikes statute, S.C. Code Ann. § 17-25-45, the judge in the Williamsburg County case sentenced Petitioner to life without parole.(Id.;Dkt.No. 24-4at 73).

Petitioner filed an Application for Post-Conviction Relief(PCR) on April 13, 2007, relating to his plea in Georgetown County.He alleged, among other things, that plea counsel was ineffective for failing to properly investigate the CSC charge and that his guilty plea was involuntary because counsel did not advise him of the two-strikes law.(Dkt.No. 24-1at 49-73).On July 27, 2009, the PCR court dismissed Petitioner's application in its entirety.(Dkt.No. 24-4at 72-93).Petitioner filed a Rule 59(e) motion, which the PCR Court denied on March 30, 3009.(Id. at 94-103).Petitioner filed a Petition for Writ of Certiorari, which the South Carolina Supreme Court granted on October 6, 2011.(Dkt.No. 24-13).In a published opinion on June 19, 2013, the South Carolina Supreme Court affirmed the PCR Court's Order of Dismissal.(Dkt.No. 24-16);Taylor v. State, 745 S.E.2d 97(S.C.2013).Remittitur was issued on July 25, 2013.(Dkt.No. 24-19).Petitioner then filed this federal habeas corpus petition, raising the following grounds for relief:

Ground One: Ineffective Assistance of Counsel for failing to conduct a sufficient investigation into the CSC charge.

Ground Two: Ineffective Assistance of Counsel for failing to advise the Petitioner that his plea to criminal sexual conduct with a minor in the second degree would be considered a "most serious" strike.

Ground Three: Brady Violation

(Dkt. No. 1at 5-8).

The Magistrate Judge recommended that summary judgment be granted to Respondent, finding (1) that Petitioner's third ground for relief was procedurally barred and (2) that Petitioner failed to show that the PCR court's and South Carolina Supreme Court's rulings on Grounds 1 & 2 resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or that the PCR court rulings were based on an unreasonable determination of the facts in light of evidence presented at the State court proceeding.(Dkt. No. 38).Petitioner filed timely objections to the R&R.(SeeDkt. No. 46).

II.Legal Standard

A.Report & Recommendation

The Magistrate Judge makes only a recommendation to this Court.The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court.Mathews v. Weber, 423 U.S. 261, 270-71(1976).The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."28 U.S.C. § 636(b)(1).This Court is charged with making a de novo determination of those portions of the R & R or specified proposed findings or recommendations to which objection is made.Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,315(4th Cir.2005)(quoting28 U.S.C. § 636(b)(1));accordFed. R. Civ. P. 72(b).

As to portions of the R & R to which no specific objection has been made, this Court"must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'"Id.(quotingFed. R. Civ. P. 72 advisory committee note).Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adoptingthe Magistrate Judge's analysis and recommendation.SeeCamby v. Davis, 718 F.2d 198, 199-200(4th Cir.1983).

B.Federal Habeas Review

Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his petition cannot be granted unless the claims "(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 in light of the evidence presented in the State court proceeding."28 U.S.C. § 2254(d)."[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.Rather, that application must also be unreasonable."Williams v. Taylor, 529 U.S. 362, 411(2000).Importantly, "a determination of a factual issue made by a State court shall be presumed to be correct," and Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence."28 U.S.C. § 2254(e)(1).

III.Discussion

A.Procedurally Barred Claim - Brady Violation

The Magistrate Judge correctly found that this ground was procedurally barred from federal habeas review.

A habeas petitioner must exhaust the remedies available to him in state court.28 U.S.C. § 2254(b)(1).This requires a habeas petitioner to "fairly present his claims to the state's highest court."Matthews v. Evatt, 105 F.3d 907, 911(4th Cir.1997), overruled on other groundsbyUnited States v. Barnette, 644 F.3d 192(4th Cir.2011).Procedural bypass, sometimes referred to as procedural bar or procedural default, occurs when a petitioner seeking habeas corpus relief failed to the raise the issue asserted in his habeas petition at the appropriate time in state court.Because the petitioner has no further means of raising the issue before the state courts, he is considered to have bypassed his state court remedies and is, thus, procedurally barred from raising the issue in a federal habeas proceeding.SeeSmith v. Murray, 477 U.S. 527, 533(1986);Weeks v. Angelone, 176 F.3d 249, 272 n.15(4th Cir.1999)("A claim is procedurally defaulted when it is rejected by a state court on an adequate and independent state procedural ground.").

Here, Petitioner claims that the prosecutor violated Brady by not notifying the defense that the CSC incident occurred on or around August 5-7, 1999, rather than in June or July of 1999.(Dkt. No. 46at 12).However, Petitioner did not raise this issue on direct appeal or in his PCR proceeding.Even if it had been raised in his PCR proceeding, the PCR court would have found the issue procedurally defaulted.Because prosecutorial misconduct, including the failure to furnish Brady materials, can be raised on direct appeal, such misconduct claims cannot be considered in a PCR proceeding absent a claim of ineffective assistance of appellate counsel.Judge v. State, 471 S.E.2d 146, 148 n.1(S.C.1996), overruled on other grounds byJackson v. State, 535 S.E.2d 926(S.C.2000).Thus, this issue is procedurally barred from federal habeas review unless Petitioner can show (1) cause for not complying with the state court's procedural rule and actual prejudice resulting from the alleged constitutional violation or (2) a miscarriage of justice.E.g., Yeatts v. Angelone, 166 F.3d 255, 260(4th Cir.1999).

Petitioner has not put forward any cause for his failure to raise this issue on direct appeal ¹ At the plea hearing, Petitioner was aware the alleged CSC occurred on August 5-7, and Petitioner specifically pled guilty to that charge.(Dkt.No. 24-1at 17).Petitioner has not claimed ineffective assistance of appellate counsel or otherwise shown cause for his failure to raise this claim on direct appeal.

Nor has Petitioner shown a miscarriage of justice.To do so, he must show that he is actually innocent.He must show that "in light of new evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'"House v. Bell, 547 U.S. 518, 537(2006)(quotingSchlup v. Delo, 513 U.S. 298, 327(1995)).In making this determination the Court must consider "all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial."Id. at 538(internal quotations omitted)."[T]he Schlupstandard is demanding and permits review only in the 'extraordinary' case."Id

The Court agrees with the Magistrate Judge that Petitioner has not met this burden.As the PCR court noted, there is a sharp contrast between Petitioner's unequivocal admission of guilt to the CSC offense on the dates of August 5-7, 1999, and his current allegation that he hasan alibi for those dates.Petitioner pleaded guilty "without any reservations whatsoever," and stated to the court, in the presence of his family and church members, "I am guilty."(Dkt.No. 24-1at 19, 21).He acknowledged that there was "no question" about the fact that...