Clifford Thompson v. Jon Ozmint

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [998354155-2], denying Motion to appoint/assign counsel [998313519-2] Originating case number: 3:08-cv-02794-HMH Copies to all parties and the district court/agency. [998395766] [09-7516]

Clifford Thompson v. Jon Ozmint

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7516 CLIFFORD THOMPSON, Petitioner - Appellant, v. JON OZMINT, South Carolina Department of WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION, Respondents - Appellees. Corrections;

Appeal from the United States District Court for the District of South Carolina, at Columbia. Henry M. Herlong, Jr., Senior District Judge. (3:08-cv-02794-HMH) Submitted: June 18, 2010 AGEE, Circuit Decided: Judges, and August 5, 2010 Senior

Before KING and Circuit Judge.

HAMILTON,

Vacated and remanded by unpublished per curiam opinion. Clifford Thompson, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Clifford Thompson, a South Carolina prisoner, appeals from the district court's order adopting the report and

recommendation of the magistrate judge and denying his 28 U.S.C. § 2254 (2006) petition. We previously granted a certificate of

appealability on the following issues: (1) whether the trial court's resolved agreement ineffective agreement. lack by of jurisdiction plea and over two counts of conviction the plea was plea

Thompson's

agreement whether

rendered trial

involuntary, for

(2)

counsel said

negotiating

and

recommending

After reviewing the subsequent briefing, we vacate

the portion of the district court's order resolving these issues and remand for further proceedings. The State contends that these issues are procedurally defaulted due to Thompson's failure to raise the claims in state court. Procedural default occurs when a habeas petitioner fails

to exhaust his state remedies and the state court would now find the claims procedurally barred. 348, 356 (4th Cir. 2001). Mickens v. Taylor, 240 F.3d

When a procedural default occurs,

federal review is barred unless the petitioner can show cause for his default and resulting prejudice, or actual innocence. Harris v. Reed, 489 U.S. 255, 262 (1989). also avoid the procedural bar by The petitioner may that failure to

"prov[ing]

consider the claims will result in a fundamental miscarriage of 2

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justice."

Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir.), In general, in South

cert. denied, 129 S. Ct. 162 (2008).

Carolina, "absent sufficient reason for not raising a claim in a first [post-conviction relief ("PCR")] application or very rare procedural circumstances, [S.C. Code Ann.] § 17-27-90 [Rev.

2003] bars the claim in a successive application." Evatt, 105 F.3d 907, 916 (4th Cir. 1997).

Matthews v.

Here, Thompson's counsel did not raise these claims in his initial PCR application. However, liberally construing his

pleadings, Thompson did raise the claims in his pro se petition for relief to the Supreme Court of South Carolina, as well as in his § 2254 petition and his objections to the magistrate judge's report in district court. Nonetheless, neither the state court,

magistrate judge, nor district court explicitly ruled on either Thompson's Further, potential the default State or did the not merits raise of the claims. issue

because

the

default

earlier, Thompson has not had an opportunity to show cause and prejudice or a miscarriage of justice. Accordingly, procedural or while we express of no opinion on the we

substantive

validity

Thompson's

claims,

grant leave to proceed in forma pauperis and vacate the portion of the district court's order dismissing these claims and remand for a ruling on whether the specified claims are procedurally defaulted and, if not, the merits of Thompson's claims. 3 We deny

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Thompson's motions for appointment of counsel. oral argument because in the the facts and legal before

We dispense with contentions the court are and

adequately

presented

materials

argument would not aid the decisional process.

VACATED AND REMANDED

4