Gaillard v. Warden Broad River Correctional Institution
OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 17 Report and Recommendation, granting 9 Motion for Summary Judgment, and declining to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 5/6/2013. (jpet, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Joe E. Gaillard,
Warden, Broad River Correctional
Civil Action No. 0:12-2962-TMC
OPINION & ORDER
This matter is before the court on Joe E. Gaillard’s (“Gaillard”) petition, pursuant to 28
U.S.C. § 2254, for a writ of habeas corpus based on the ineffective assistance of his plea counsel.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC, the case was
referred to a magistrate judge for all pre-trial proceedings. The Warden moved the court for
summary judgment on December 17, 2012, (ECF No. 9) and Gaillard responded on January 23,
2013 (ECF No. 14). The magistrate judge carefully considered both submissions and filed her
Report and Recommendation (“Report”), recommending that the court grant the Warden’s
motion for summary judgment.1 (ECF No. 17.) Gaillard timely filed his objection to the Report
(ECF No. 19) and the case is now ripe for the court’s review. The court fully adopts the Report
and incorporates it herein. However, the court will address Gaillard’s objection.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive
weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and
Recommendation to which specific objections are made, and the court may accept, reject, or modify, in whole or in
part, the Magistrate Judge’s recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
On November 2, 2008, Gaillard pled guilty to murder and possession of a weapon during
the commission of a violent crime, and entered an Alford plea2 to the charge of armed robbery.
Gaillard did not directly appeal, but did file an application for post-conviction relief. The circuit
court denied his application and the South Carolina Court of Appeals denied his subsequent
petition for a writ of certiorari. In his habeas petition, Gaillard asserts ineffective assistance of
counsel, arguing that his plea counsel used his mother and daughters to convince him to plead
guilty, rather than proceed to trial, and that plea counsel failed to consider Gaillard’s medical
history before recommending that Gaillard plead.
II. Legal Standard
To state a claim for ineffective assistance of counsel, a petitioner must show that: (1) his
counsel was deficient in his representation and (2) the petitioner was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the first element, a petitioner
must show that his trial counsel’s errors were so serious that his performance was below the
objective standard of reasonableness guaranteed by the Sixth Amendment. Id. To satisfy the
second element, if the petitioner is a habeas petitioner who pled guilty in the state action, he must
show “that there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
When a federal habeas court reviews a state court’s determination of an ineffective
assistance of counsel claim, “[t]he question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011).
See North Carolina v. Alford, 400 U.S. 25 (1970).
Gaillard raises only one objection to the Report: that it does not adequately address his
assertion that his plea counsel did not consider his mental state at the time of his crimes.
Gaillard appears to contend that, had his counsel researched his medical history, he could have
discovered a possible competency issue and counseled Gaillard to proceed to trial, rather than
plead guilty. In support of this claim, Gaillard attached pages from his medical history to his
response in opposition to the Warden’s motion for summary judgment. (ECF No. 14-1.)
However, to the court’s knowledge, these attachments were never part of the state court record.
First, the court reiterates the Report’s observation that the court’s habeas review is
generally limited to the evidence that was also before the state court. See Cullen v. Pinholster,
131 S. Ct. 1388, 1398, 1400 n.7 (2011). While there are some exceptions, Gaillard has not
asserted that any is applicable here.
Second, the court finds that the state court did not unreasonably misapply applicable
federal law or base its conclusions on an unreasonable determination of the facts with regard to
this claim. Plea counsel based his recommendation to accept a plea, in part, on two aggravating
circumstances in Gaillard’s case: armed robbery and that the victim was a state witness in a
pending criminal trial against a woman with whom Gaillard was involved. These circumstances
could have prompted the State to seek the death penalty, or at least a life sentence, if the case
proceeded to trial.
Gaillard’s alleged altered mental state would not have mitigated these
aggravating circumstances. Accordingly, even if the state court had an opportunity to review
Gaillard’s new assertions as to his frame of mind it still could have reasonably concluded that
Gaillard’s attorney reasonably performed his duties and provided adequate representation.
Therefore, after a thorough review of the record, including the Warden’s motion for
summary judgment, Gaillard’s response, the Report, and Gaillard’s objection to the Report, the
court grants the Warden’s motion for summary judgment (ECF No. 9).
Certificate of Appealability
A certificate of appealability will not issue absent “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that his constitutional claims are debatable
and that any dispositive procedural rulings by the district court are also debatable or wrong. See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).
In the instant matter, the court finds that Petitioner has failed to make “a substantial showing of
the denial of a constitutional right.” Accordingly, the court declines to issue a certificate of
IT IS SO ORDERED.
s/Timothy M. Cain
Timothy M. Cain
United States District Court Judge
May 6, 2013
Anderson, South Carolina
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