Walker v. Bush

• Decision Date: 28 March 2018
• Docket Number: Civil Action No.: 8:17-cv-00164-RBH
• Parties: Johnnie Walker, Petitioner, v. Dennis Bush, Warden, Respondent.
• Court: U.S. District Court — District of South Carolina

Johnnie Walker, Petitioner, v. Dennis Bush, Warden, Respondent.

Civil Action No.: 8:17-cv-00164-RBH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION

March 28, 2018

ORDER

Petitioner Johnnie Walker, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1. The matter is before the Court for consideration of Petitioner's objections to the Report and Recommendation ("R & R") of United States Magistrate Judge Jacquelyn D. Austin.¹ See ECF Nos. 17 & 19. The Magistrate Judge recommends granting Respondent's motion for summary judgment and denying Petitioner's § 2254 petition.

Background

The State of South Carolina accused Petitioner and seven other codefendants of being involved in the disappearance and death of Jeremy Leaphart, who went missing in December 2007 and whose body was found in January 2008 in a trash pile in Aiken County. See generally ECF No. 11-1² at pp. 30-43. In July 2008, the State indicted Petitioner for accessory after the fact to a felony. See ECF No. 11-3. In April 2009, Petitioner, represented by counsel, waived presentment of a kidnapping indictment to the grand jury and pled guilty to the kidnapping charge.³ See ECF No. 11-1 at pp. 3-143, 232-33. The state plea court sentenced him to thirty years' imprisonment and denied his motion to reconsider the sentence. See id. at pp. 73, 145-72; ECF Nos. 11-4, 11-5, & 11-6. Petitioner filed a direct appeal, and the South Carolina Court of Appeals summarily affirmed in an unpublished opinion. See ECF Nos. 11-7 through 11-19. Petitioner then filed an application for post-conviction relief ("PCR") in state court. See ECF No. 11-1 at pp. 173-78. After holding a hearing at which Petitioner and his trial counsel testified, the PCR court issued a written order denying and dismissing the PCR application with prejudice. Id. at pp. 185-231. Petitioner filed a Johnson⁴ petition for a writ of certiorari from the denial of his PCR application, and the South Carolina Supreme Court summarily denied the Johnson petition and remitted the case. See ECF Nos. 11-20 through 11-25.

Petitioner then filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1. Respondent answered by filing a return and a motion for summary judgment. See ECF Nos. 11 & 12. Petitioner filed a response in opposition to Respondent's motion. See ECF No. 15. The Magistrate Judge issued an R & R recommending that the Court grant Respondent's motion for summary judgment and deny Petitioner's § 2254 petition. See R & R [ECF No. 17] at p. 29. Petitioner filed timely objections to the R & R. See ECF No. 19.

Legal Standards

I. Review of the Magistrate Judge's R & R

The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's 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 must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

II. Summary Judgment

"The court shall grant summary judgment 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); see generally Rule 12 of the Rules Governing Section 2254 Cases ("The Federal Rules of Civil Procedure . . . , to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules."); Brandt v. Gooding, 636 F.3d 124, 132 (4th Cir. 2011) ("Federal Rule of Civil Procedure 56 'applies to habeas proceedings.'" (quoting Maynard v. Dixon, 943 F.2d 407, 412 (4th Cir. 1991))). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) 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). "The evidence must be viewed in the light most favorable to the non-moving party, with all reasonable inferences drawn in that party's favor. The court therefore cannot weigh the evidence or make credibility determinations." Reyazuddin v. Montgomery Cty., 789 F.3d 407, 413 (4th Cir. 2015) (internal citation and quotation marks omitted).

III. Federal Habeas Review Under 28 U.S.C. § 2254

Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 governs review of his claims. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615, 618 (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 in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). This is a "difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted). "Section 2254(d)(1) describes the standard of review to be applied to claims challenging how the state courts applied federal law, while § 2254(d)(2) describes the standard to be applied to claims challenging how the state courts determined the facts." Winston v. Kelly, 592 F.3d 535, 553 (4th Cir. 2010). "'[A] determination on a factual issue made by a State court shall be presumed correct,' and the burden is on the petitioner to rebut this presumption 'by clear and convincing evidence.'" Tucker v. Ozmint, 350 F.3d 433, 439 (4th Cir. 2003) (quoting 28 U.S.C. § 2254(e)(1)). Because the South Carolina Supreme Court summarily denied Petitioner's certiorari petition, see ECF No. 11-24, the Court directly reviews the PCR court's reasoning. Brumfield v. Cain, 135 S. Ct. 2269, 2276 (2015) (applying the "look-through" doctrine).

Discussion

Petitioner alleges four grounds for relief in his § 2254 petition: Grounds One through Three present ineffective assistance claims, and Ground Four alleges error by the plea court. See ECF No. 1. The Magistrate Judge recommends granting summary judgment on all grounds, concluding that Grounds One and Four are procedurally defaulted and that Grounds Two and Three fail on the merits. R & R at pp. 14-29. Petitioner objects to the Magistrate Judge's recommendations. See Pet.'s Objs. [ECF No. 19].

I. Grounds One & Four—Procedural Default

In Ground One, Petitioner alleges plea counsel was ineffective for (a) failing to advocate on Petitioner's behalf, (b) advising Petitioner to waive presentment of the kidnapping indictment, and (c) advising Petitioner to plead guilty to kidnapping. See ECF No. 1-1 at pp. 2-16. In Ground Four, he alleges his due process rights were violated by the plea court's partiality toward the prosecution during the plea process. See id. at pp. 21-24. The Magistrate Judge correctly explains both grounds are procedurally defaulted because the three claims alleged in Ground One were neither raised in Petitioner's PCR application nor ruled upon by the PCR court, and the claim in Ground Four was not raised on direct appeal or to the PCR court and was not ruled upon by the PCR court. In fact, Petitioner acknowledges in his § 2254 petition that "Grounds One and Four were procedurally defaulted in the state court proceedings." See id. at pp. 5, 10, 12.

Having conducted a de novo review of the record and Grounds One and Four, the Court agrees with the Magistrate Judge that Petitioner has not shown cause and prejudice to excuse his default. The Court hereby adopts and incorporates by reference the applicable law and discussion set forth in the R & R regarding exhaustion, procedural default, and cause and prejudice, see R & R at 8-23, and it finds Petitioner's claims in Grounds One and Four are procedurally barred from federal habeas review because they were not fairly presented to the South Carolina courts. Thus, the Court cannot consider the merits of his claims. See Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012) ("[A] federal court ordinarily may not consider claims that a petitioner failed to raise at the time and in the manner required under state law unless 'the prisoner demonstrates cause for the default and prejudice from the asserted error.'" (quoting House v. Bell, 547 U.S. 518, 536 (2006))).

However, while the Magistrate Judge's discussion focuses on cause and prejudice (and Petitioner objects to that discussion), Petitioner also alleges "'actual innocence'" in his objections.⁵ See Pet.'s...