Tucker v. Moore

• Decision Date: 15 March 1999
• Docket Number: No. Civ.A. 0:98-681-8BD.,Civ.A. 0:98-681-8BD.
• Court: U.S. District Court — District of South Carolina
• Parties: Richard Anthony TUCKER, # 4872, Petitioner, v. Michael MOORE, Commissioner, South Carolina Department of Corrections, and Charles Condon, Attorney General of the State of South Carolina, Respondents.

56 F.Supp.2d 611

Richard Anthony TUCKER, # 4872, Petitioner, v. Michael MOORE, Commissioner, South Carolina Department of Corrections, and Charles Condon, Attorney General of the State of South Carolina, Respondents.

No. Civ.A. 0:98-681-8BD.

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

March 15, 1999.

COPYRIGHT MATERIAL OMITTED

Teresa Lynn Norris, Columbia, SC, Thomas Ross Haggard, Columbia, SC, for Petitioner.

Donald John Zelenka, Columbia, SC, for Respondents.

ORDER

BLATT, Senior District Judge.

INTRODUCTION

The Petitioner in this 28 U.S.C. § 2254 action was sentenced to death by a South Carolina Court of General Sessions on October 28, 1993. In this § 2254 petition, the Petitioner's two attorneys assert several grounds relating to the sentencing phase of his criminal trial and his direct appeal; they do not dispute the proceedings during the guilt phase of his trial. The record includes the Report and Recommendation of United States Magistrate Judge Bristow Marchant, in which report the magistrate judge recommends that the Petition for Writ of Habeas Corpus be denied, and the Petition dismissed. Both parties timely filed objections with this Court.

The Report and Recommendation of the United States Magistrate Judge was made in accordance with 28 U.S.C. § 636 and the local rules of this district concerning reference to a magistrate judge. See United States Magistrates, Local Rule 73.02, D.S.C.; Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir.1975). Under 28 U.S.C. § 636(b),

[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

Absent timely objection from a dissatisfied party, a district court is not required to review, under a de novo or any other standard, a magistrate judge's factual or legal conclusions. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985). Here, objections to the magistrate judge's report were filed and the Court has conducted a de novo review of those portions of the magistrate judge's report to which objections were made. In conducting its de novo review, the Court has reviewed relevant portions of the state court transcripts and exhibits contained in the record, and the applicable law.

DISCUSSION

I. Whether the Petitioner's § 2254 Petition is time-barred by 28 U.S.C. § 2263.¹

As the magistrate judge explained, for a state to "opt in" to the special habeas corpus procedures in capital cases that became effective April 24, 1996, (Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §§ 2261-2266), a state would have to satisfy 28 U.S.C. § 2261(b) and (c). The Respondents argue that South Carolina did so by (1) enacting S.C.Code Ann. § 17-27-160, which established a mechanism requiring the appointment of two counsel in death penalty cases, standards for qualification of counsel to be appointed, and compensation and litigation expenses for hearing and appellate counsel in these cases; and (2) In re Stays of Execution In Capital Cases, 321 S.C. 544, 471 S.E.2d 140 (S.C.1996), established requirements for the timely appointment of capital state post-conviction relief counsel. The Petitioner denies that the State has complied with 28 U.S.C. § 2261(b) and (c).

The magistrate judge determined that it is not necessary for this Court to decide whether South Carolina's attempt to satisfy 28 U.S.C. § 2261(b) and (c), actually does satisfy those provisions, because, in this case, the two counsel appointed to represent the Petitioner during the state post-conviction relief (PCR) proceedings did not satisfy the standards set forth in S.C.Code Ann. § 17-27-160 (South Carolina's attempt to opt-in). The magistrate judge notes that during a hearing held before him² the Respondents conceded that they had no evidence to contradict the affidavits of Mr. Johnston and Mr. Poole, the state PCR counsel, which provide factual information that they did not meet the requirements of 17-27-160(B). The Respondents argue, in their Objections, that because the State had implemented a procedure that does comply with 28 U.S.C. § 2261(b) and (c), and had implemented that procedure prior to the two counsel being appointed to represent the Petitioner in the state PCR proceedings, and prior to the Petitioner filing his first PCR application, then 28 U.S.C. § 2261 et seq. does apply to Petitioner's action.

The magistrate judge rejected the Respondents' argument, and this Court agrees with the sound reasoning of the magistrate judge. If the Respondents did not follow their own procedures set forth in S.C.Code Ann. § 17-27-160(B) when appointing counsel for the Petitioner during the state PCR proceedings, then the Respondents cannot invoke Chapter 154 of the AEDPA (28 U.S.C. §§ 2261-2266) against the Petitioner in this federal habeas action, even assuming S.C.Code Ann. § 17-27-160 does satisfy 28 U.S.C. § 2261(b) and (c). See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir.1996). This Court is expressly not passing on the issue of whether S.C.Code Ann. § 17-27-160 meets the requirements of 28 U.S.C. § 2261(b) and (c), because it is not necessary to reach that issue. This Court adopts the magistrate judge's conclusion that Chapter 154 of the AEDPA does not apply to the Petitioner's case, as set forth in pages 10-13 of the Report and Recommendation, because Petitioner's appointed state PCR counsel did not meet the experience requirements of § 17-27-160.

Having decided that Chapter 154 of the AEDPA does not apply to this case, it is undisputed that the Antiterrorism and Effective Death Penalty Act of 1996 amendments to 28 U.S.C. § 2254, effective April 24, 1996, do apply to this case which was filed September 9, 1998.³ See Green v. French, 143 F.3d 865, 868 (4th Cir.1998), cert. denied ___ U.S. ___, 119 S.Ct. 844, 142 L.Ed.2d 698 (1999).

II. Whether Petitioner's claims A(1) and A(2) are procedurally barred, and whether cause and prejudice exists to excuse the procedural default.

The magistrate judge found that Petitioner's claims A(1) and A(2) are procedurally defaulted because, although they were listed as grounds for relief in the state PCR trial court petition, which petition was denied, those claims were not raised in the direct appeal PCR proceedings to the South Carolina Supreme Court. In the Petitioner's objections, he implicitly acknowledges that both of these claims are procedurally defaulted. As the magistrate judge correctly explained, because those claims were not raised in the direct appeal PCR proceedings to the South Carolina Supreme Court, a federal habeas court is precluded from reviewing those claims unless cause and actual prejudice, or actual innocence, is shown by the Petitioner. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Petitioner alleges that cause and actual prejudice exists.

The magistrate judge found that no cause exists to excuse the procedural default. While constitutionally ineffective assistance of counsel can constitute cause, it can only be cause if it is an independent constitutional violation. Id. at 2567.⁴ The magistrate judge found that the Petitioner cannot prove cause because the counsel who were allegedly ineffective for failing to raise those claims before the South Carolina Supreme Court are the same "counsel in his postconviction proceeding," and "[i]neffective assistance of PCR counsel does not amount to an independent constitutional violation...." See Report and Recommendation, p. 15.

The Petitioner attempts to prove an independent constitutional violation by alleging that his federal due process rights were violated because South Carolina did not appoint PCR counsel whose qualifications satisfied S.C.Code Ann. § 17-27-160, and that this was an arbitrary denial of a statutory right which amounts to a denial of due process. What concerns this Court about Petitioner's argument is that South Carolina enacted § 17-27-160 for the purpose of opting-in to Chapter 154 of the AEDPA, but because it did not follow the statute in this case it is being held accountable by this Court's refusal to apply Chapter 154 to this case. The Court believes that its refusal to apply Chapter 154 to the Petitioner's case, which ruling Petitioner seeks, due to the State's failure to follow § 17-27-160, is of great benefit to the Petitioner, and for the Petitioner to now claim a violation of a constitutional right based upon the State's failure to follow § 17-27-160, contradicts that ruling. This Court finds that the State's failure to follow § 17-27-160 is not a violation of Petitioner's constitutional rights because the rights granted to the Petitioner under that statute, if not given, do not penalize the Petitioner. The result of the State's failing to follow § 17-27-160 in a particular case is that Chapter 154 does not apply to that case. Moreover, the claim that ineffective assistance of counsel in this case amounts to cause is troubling because Andrew J. Johnston was an attorney for Petitioner during the state PCR trial court proceedings, and during the PCR appeal (where claims A(1) and A(2) were not raised), and during this action where he essentially attacks his own actions as ineffective.⁵

Based on the foregoing, this Court finds that an independent constitutional violation did not occur when the State failed to follow § 17-27-160, and, therefore, no cause exists to excuse the procedural defaults of claims A(1) and A(2). However, even if cause did exist, this Court agrees with the magistrate judge that the Petitioner has neither shown actual prejudice as a result of the alleged violations of federal law, nor a...