Pernell v. Warde, Perry Corr. Inst.

Filing 60

ORDER adopting 52 REPORT AND RECOMMENDATION, granting 32 Motion for Summary Judgment, and dismissing 1 Petition. Certificate of Appealability is denied. Signed by Honorable J Michelle Childs on 3/4/2016. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Glenn Pernell,

)
)
Plaintiff,
)
)
v.
)
)
Warden, Perry Corr. Inst.,
)
)
Respondent.
)
____________________________________)

Civil Action No. 0:14-cv-04101-JMC

ORDER

Petitioner, appearing pro se, brought this action seeking relief pursuant to 28 U.S.C. §
2254 (2012). This matter is before the court for review of the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 52) recommending that Respondent’s Motion for
Summary Judgment (ECF No. 32) be granted and Petitioner’s Petition for Writ of Habeas
Corpus (ECF No. 1) be dismissed without an evidentiary hearing. Petitioner filed an Objection
to the Magistrate Judge’s Report and Recommendation. (ECF No. 57.) For the reasons set forth
below, the court GRANTS Respondent’s Motion for Summary Judgment (ECF No. 32) and
DISMISSES Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1).
I.

JURISDICTION

This court has jurisdiction over this matter pursuant to 28 U.S.C. § 2254 (2012), which
provides that a federal district court has jurisdiction to entertain a § 2254 petition when the
petitioner is in custody of a state court in violation of the Constitution, laws, or treaties of the
United States.
II.

FACTUAL AND PROCEDURAL BACKGROUND

The Report contains a thorough recitation of the relevant factual and procedural
background of the matter. (See ECF No. 52 at 1–5.) The court concludes upon its own careful
1

review of the record that the Report’s factual and procedural summation is accurate, and the
court adopts this summary as its own.
III.

LEGAL STANDARD

A. The Magistrate Judge’s Report and Recommendation
The Report is made in accordance with 28 U.S.C. § 636(b)(1) (2012) and Local Civil
Rule 73.02 for the District of South Carolina.

The Magistrate Judge makes only a

recommendation to this court. The court reviews de novo only those portions of a Magistrate
Judge’s recommendation to which specific objections are filed. Diamond v. Colonial Life &
Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.
1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). She reviews those portions which
are not objected to—including those portions to which only “general and conclusory” objections
have been made—for clear error. Id. The court may accept, reject, or modify—in whole or in
part—the recommendation of the Magistrate Judge or recommit the matter with instructions. See
28 U.S.C. § 636(b)(1).
B. Relief under 28 U.S.C. § 2254
The Antiterrorism and Effective Death Penalty Act of 1996, as codified in 28 U.S.C. §
2254, governs Petitioner’s federal habeas claims. Petitioners seeking relief pursuant to § 2254
usually must exhaust all available state court remedies before seeking relief in federal court. §
2254(b). Federal courts may not thereafter grant habeas corpus relief unless the underlying state
adjudication comports with § 2254(d), which provides:
[a]n application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—(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
2

decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding.
§ 2254(d) (emphasis added).
A state court’s decision is contrary to “clearly established federal law” when it “applies a
rule that contradicts the governing law set forth” by the United States Supreme Court or
confronts facts essentially indistinguishable from a prior Supreme Court decision and
“nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor,
529 U.S. 362, 405–06 (2000). In contrast, a state court’s decision involves an “unreasonable
application” of “clearly established” federal law 1) “if the state court identifies the correct
governing legal rule from this [Supreme] Court’s cases but unreasonably applies it to the facts of
the particular state prisoner’s case” or 2) “if the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
In line with Williams, the Fourth Circuit has noted that an “unreasonable application” is
not necessarily an “incorrect application” of federal law, explaining that “an incorrect application
of federal law is not, in all instances, objectively unreasonable.” Humphries v. Ozmint, 397 F.3d
206, 216 (4th Cir. 2005) (citing Williams, 529 U.S. at 413). Thus, to grant a habeas petition, a
federal court must determine that the state courts’ adjudication of a petitioner’s claims was “not
only incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719
(4th Cir. 2004).
In making this determination, a federal court’s habeas review focuses on the state court
decision that already addressed the claims, not “the petitioner’s free-standing claims
themselves.” McLee v. Angelone, 967 F. Supp. 152, 156 (E.D. Va. 1997), appeal dismissed, 139
F.3d 891 (4th Cir. 1998). And a Petitioner who brings a habeas petition in federal court must
3

rebut facts relied upon by the state court with “clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (“[F]or a federal habeas court to
overturn a state court’s credibility judgments, the state court’s error must be stark and clear.”
(citing 28 U.S.C. § 2254(e)(1))).
C. Motion for Summary Judgment
Summary judgment should be granted “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). A fact is “material” if proof of its existence or non-existence would affect the
disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248–49 (1986). A genuine question of material fact exists where, after reviewing the record as a
whole, the court finds that a reasonable jury could return a verdict for the non-moving party.
Newport News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123–
24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with
mere allegations or denials of the movant’s pleading, but instead must “set forth specific facts”
demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Shealy v.
Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). All that is required is that “sufficient evidence
supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’
differing versions of the truth at trial.”

Anderson, 477 U.S. at 249.

“Mere unsupported

speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat’l Ass’n of
Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

4

D. Procedural Bar of Claims for Federal Review
Federal courts are generally precluded from considering constitutional claims that have
been bypassed on procedural grounds in earlier state proceedings. Smith v. Murray, 477 U.S.
527, 533 (1986). For a federal court to be justified in ignoring a state procedural bar, one is
required to show 1) cause for his failure to raise the claim in the state courts, and 2) actual
prejudice resulting from the failure. See id. (quoting Wainwright v. Sykes, 433 U.S. at 84
(1977)); see also Reed v. Ross, 468 U.S. 1, 10–11 (1984) (noting that state procedural bars
promote “the finality of [judicial] decisions”). Alternatively, a petitioner can demonstrate that a
federal court’s failure to consider the claims, regardless of their procedural bar, would result in a
“fundamental miscarriage of justice.” Engle v. Isaac, 456 U.S. 107, 135 (1982) (“[W]e are
confident that victims of a fundamental miscarriage of justice will meet the cause-and-prejudice
standard.” (citing Wainwright 433 U.S. at 91)).
Furthermore, attorney error does not qualify as such “cause” under this analysis unless it
also can be shown that the error qualifies as “ineffective assistance of counsel” in violation of the
Sixth Amendment. Murray v. Carrier, 477 U.S. 478, 488 (1986). A defendant demonstrates
ineffective assistance of counsel when he shows not only that counsel’s performance was
deficient under an objective reasonableness standard, but also that this deficiency prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). Lastly, under Martinez v.
Ryan, 132 S. Ct. 1309 (2012), there are limited exceptions under which ineffective assistance of
counsel “at initial-review collateral review proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1315. To
demonstrate cause under Martinez, a Petitioner must demonstrate: (1) that his PCR counsel was
ineffective under Strickland and (2) that “the underlying ineffective-assistance-of-trial-counsel

5

claim is a substantial one.” Id. at 1318. In other words, Petitioner would need to show that his
PCR counsel’s errors were “objectively unreasonable, and that, but for his errors, there is a
reasonable probability that Petitioner would have received relief on a claim of ineffective
assistance of trial counsel in the state post-conviction matter.” Sexton v. Cozner, 679 F.3d 1150,
1157, 1159 (9th Cir. 2012) (summarizing the Martinez test).
IV.

ANALYSIS

A. Report and Recommendation Summary
The Report addresses the following of Petitioner’s habeas allegations, quoted verbatim:
Ground Two: (A) Trial Counsel erred in failing to strongly encourage Petitioner to
accept the State’s fourteen year plea offer because the state’s
evidence was overwhelming and where a fourteen year sentence
would have been less harsh than the aggregate fiftyyear prison
sentence handed down by the trial judge in the case[.]
(B) Counsel was ineffective for failing to move to suppress the evidence
(drugs) found in the vehicle[.]
(C) Counsel was ineffective for failing to object to the Trial Court’s
erroneous Allen instruction to the jury that had a serious and
injurious [e]ffect on the jury’s verdict. (Pet., ECF No. 1.) Pernell
also raised the following additional issues in his Amended Petition
for a writ of habeas corpus:
Ground Three: (A) The state trial and appellate court denied petitioner his Fourteenth
Amendment right to a fair trial when the trial court allowed the jury
to be subjected to [all] the evidence from a prior unadjudicated
offense for which petitioner was not on trial for. This error unduly
prejudiced petitioner, as it resulted in a spill-over of prejudice.
(B) Petitioner was denied the effective assistance of appellate counsel
when appellate counsel objected on one ground during trial and
then argued a different ground on direct appeal.
(C) The state PCR court erred in failing to find counsel rendered
ineffective assistance of counsel regarding the distribution charge.
(D) (1). The consecutive sentences handed down by the trial court are
disproportionate to other sentences for same conduct.
(2). Trial counsel was ineffective for failing to object to the
consecutive sentences handed down by the trial court as the product
of prejudice, partiality, disproportionate and cruel and unusual
punishment compared to other sentences for same conduct.
(3). Was counsel ineffective for failing to object to the consecutive
sentences handed down by the trial court, since the offenses were
6

the product of a continuous course of conduct, and should have
been considered as one offense for sentencing purposes.
(Am. Pet., ECF No. 15) (errors and omissions in original).
In considering these allegations, the Magistrate Judge appropriately evaluated the state
court’s application of Strickland v. Washington, 466 U.S. 668 (1984) to Petitioner’s claim of
ineffective assistance of trial counsel in support of Grounds 2(a), 2(b), and 3(c) of his habeas
petition. (ECF No. 52 at 12–20, 25.) Under Strickland, Petitioner needed to have shown not
only that counsel’s performance was deficient under an objective reasonableness standard, but
also that this deficiency prejudiced his defense. Strickland, 466 U.S. at 668, 687, 694.
Citing relevant portions of the record below, the Magistrate Judge concluded that the
state court reasonably concluded that Petitioner’s claims failed under Strickland—that is, the
state court’s application of Strickland, as clearly established federal law, was not objectively
unreasonable under § 2254(d) such that Petitioner’s habeas petition should be granted. (ECF No.
52 at 11–13, 25.) Petitioner furthermore failed to show that the state’s court’s rejection of his
claim resulted in a decision that was based on an unreasonable determination of the facts under §
2254(d). Id.
The Magistrate Judge further held that Grounds 2(c) and 3(d) were procedurally
defaulted. (Id. at 13–24, 25–31.) The Magistrate Judge further explained that Petitioner could
not rely on Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012) to overcome the procedural default
because Petitioner failed to fulfill Martinez’s requirements to overcome such a procedural bar.
(Id. at 16, 25–31.)
As for Petitioner’s Ground 3(a) and 3(b) claims, the Magistrate Judge concluded that
“[t]o the extent [Petitioner]’s Ground Three challenges state evidentiary rulings, federal habeas
relief is not available” and that Petitioner’s arguments therein did not go to “constitutional error,”
7

such that federal habeas relief should be available. (Id. at 24–25 (citing relevant caselaw and
portions from the record).) Finally, the Magistrate Judge addressed Ground 3(c) of Petitioner’s
habeas claim and concluded that it was “without merit” because Petitioner could not
“demonstrate that the PCR court unreasonably misapplied clearly established federal law . . . in
rejecting his claim of ineffective assistance of counsel or that the PCR court made objectively
unreasonable factual findings.” (Id. at 25.)
B. The Court’s Review of Petitioner’s Objections
Petitioner first asserts that the Magistrate Judge “unreasonably applies the Martinez
exception” to his Ground 2(c) claim. (ECF No. 57 at 2.) Petitioner specifically cites Trevino v.
Thaler, 133 S. Ct. 1911 (2013) for the claim that he was required to meet “only four
requirements to overcome a procedural default under Martinez” and that he, in fact, met those
requirements. (Id. at 3.)

This objection fails, however, because the Magistrate Judge did

consider these requirements, (see ECF No. 52 at 15–16 (citing Trevino, 133 S. Ct. at 1919)), and
soundly explained how Petitioner had failed to fulfill this standard after applying it to the facts
here. (Id. at 22.) The Magistrate Judge explicitly concluded with regard to Ground 2(c) of
Petitioner’s habeas petition: “[Petitioner]’s attorney was not unreasonable in failing to object to
the Allen instruction, so [Petitioner] cannot show that this was a substantial claim [under
Martinez] that PCR counsel unreasonably failed to raise. Accordingly, he cannot show cause
[under Martinez] to excuse the procedural default; thus, the claim is barred from review.” (Id.)
Petitioner nonetheless claims as another explicit objection that the dispute with the Allen
charge, 1 the basis of his Ground 2(c) habeas claim, does qualify as a “substantial claim” under

1

The court adopts the Magistrate Judge’s summary of this standard: “An Allen instruction is a
jury instruction that a trial judge may issue to a deadlocked jury in order to encourage the jury to
reach a unanimous verdict. See Allen v. United States, 164 U.S. 492, 501–02 (1896). The Allen
8

the Martinez requirements.

(ECF No. 57 at 4 (pointing out that his claim of ineffective

assistance of counsel for failing to object to the Allen charge has ‘some merit’).) Relatedly,
Petitioner argues, as another specific objective, that the Magistrate Judge was incorrect to find
that the “trial court did not render a coercive Allen charge.” (Id. at 6–7.) Petitioner provides no
new argument that the Magistrate Judge did not consider its ruling; instead, Petitioner argues that
the “error complained of here” qualifies as ‘structural’ under Arizona v. Fulminante, 499 U.S.
279 (1991), such that habeas relief is warranted. (Id. at 7–8).
In response, this court first notes that the issue before it, here, is not whether the Allen
charge was, in fact, coercive, but rather, per Petitioner’s habeas petition grounds, whether the
PCR counsel was ineffective under Strickland for not objecting to the Allen charge as such. For
the same reasons that the Magistrate Judge already explained, 2 this court finds that the PCR
counsel was not ineffective under the Strickland analysis for not objecting to the Allen charge.

instruction is generally used ‘to inform jurors that there is no reason to believe another jury
would be better able to decide the case, that it is important that a unanimous verdict be reached,
and that jurors should consider the opinions of jurors who favor a different result.’ United States
v. Rosado, 452 F. App’x 255, 256 (4th Cir. 2011). The Supreme Court of the United States has
continued to affirm the constitutionality of the use of Allen instructions, unless “in its context
and under all the circumstances the judge’s statement” had a coercive effect on the jury. Jenkins
v. United States, 380 U.S. 445, 446 (1965).
2
On this issue, the Magistrate Judge concluded: “The Allen instruction given to Pernell’s jury
stated that it was permissible for the jury to disagree and the court did not command the jury
reach an agreement. The record indicates that the court did not know the numerical division of
the jury. Reviewed in its totality, the charge shows that the court encouraged all jurors, not just
those who ended up in the minority, to reexamine their views, and instructed jurors not to
surrender their individual conviction just because of another juror. Reading the February 28 and
March 1 instructions as a whole shows no indication of coercion. Consequently, Pernell’s
attorney was not unreasonable in failing to object to the Allen instruction . . . .” (ECF No. 52 at
22.)
9

This court therefore finds no need to address Petitioner’s argument of whether the error he
complains of is “structural” such that habeas relief is appropriate. 3
In response to the Magistrate Judge’s determinations regarding Petitioner’s Grounds 3(a),
3(b), and 3(c) habeas petition claims, Petitioner appears to re-assert the same arguments he did
before the Magistrate Judge and argues that the Magistrate Judge “erred in not granting relief on
this issue.” (ECF No. 57 at 9.) He adds to his claims a declaration that “[t]he Founders would
not have allowed unchallenged evidence from a previous offense be admitted in a later offense to
prove the truth of the matter asserted.” (Id.) In light of Petitioner’s general objections, this court
finds that Petitioner’s Ground 3(a), 3(b), and 3(c) habeas petition claims fail for all of the reasons
the Magistrate Judge already identified. (See ECF No. 52 at 22–25.)
In response to the Magistrate Judge’s determinations regarding Ground 3(d) of his habeas
petition, Petitioner states that he “will not re-argue, but will contend the Magistrate’s findings
here is debateable.” (ECF No. 57 at 9.) Upon careful review of the record, this court does not
agree and accepts the Magistrate Judge’s findings and supporting rationale that the Ground 3(d)
claims of his habeas petition were procedurally barred. (See ECF No. 52 at 25–30.)
Finally, Petitioner concludes that the Magistrate Judge “failed to make an independent
factual finding” on 1) “[his] argument regarding the statutory scheme of S.C. Code Ann. § 1725-50” and 2) his argument “concerning the Judge’s direct comments regarding personal feelings
towards petitioner, in front of the jury and right before handing down the aggregate sentence.”
3

Further underscoring the insufficiency of his arguments, Petitioner fails, in any event, to offer
the “clear and convincing evidence” necessary under 28 U.S.C. § 2254(e)(1) to overcome the
presumption of correctness of the state court’s same findings on collateral review. Indeed, even
with such evidence, it remains difficult for a federal court to establish that a state court’s
application of Strickland was unreasonable under § 2254(d); when both Strickland and § 2254(d)
apply, as in this case, federal review is “doubly” deferential. Harrington v. Richter, 562 U.S. 86,
105 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
10

(ECF No. 47 at 10.) To these arguments, this court highlights that any further independent
factual finding the Magistrate Judge could have provided for Petitioner’s ineffective assistance of
counsel arguments was unnecessary since she appropriately found that his claim was
procedurally barred. (See ECF No. 52 at 28–30.) And to Petitioner’s very last objection, neither
the Magistrate Judge nor this court has identified any “constitutional error” to make necessary
any consideration of Petitioner’s argument that the Magistrate Judge “failed to assess the
prejudicial impact of the constitutional error under the substantial and injurious affect standard.”
(Id. at 10 (citing Frye v. Pliler, 127 S. Ct. 2321, 2328 (2007).)
V. CONCLUSION
For the reasons set forth above, the court ADOPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 52).

It is therefore ORDERED that Respondent's Motion for

Summary Judgment (ECF No. 32) is GRANTED and Petitioner's Petition for Writ of Habeas
Corpus (ECF No. 1) is DISMISSED without an evidentiary hearing.

CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable.

See Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,

11

252 F.3d 676, 683 (4th Cir. 2001). In this case, Petitioner has not met the legal standard for the
issuance of a certificate of appealability.
IT IS SO ORDERED.

United States District Judge
March 4, 2016
Columbia, South Carolina

12