Johnson v. Taylor
ORDER adopting 26 REPORT AND RECOMMENDATION, granting 19 MOTION for Summary Judgment, and dismissing 1 Petition. Certificate of Appealability is denied. Signed by Honorable Richard M. Gergel on 3/7/2016. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Brandon Lav'ar Johnson,
Edsel T. Taylor, Warden,
This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 26), recommending that Respondent's Motion for Summary
Judgment (Dkt. No. 19) be granted and the habeas petition be dismissed. For the reasons stated
below, the Court ADOPTS the R & R, GRANTS Respondent's Motion for Summary Judgment,
and DISMISSES the habeas petition.
In October 2009, a Charleston County Grand Jury indicted Petitioner for first degree
burglary. On April 28, 2011, Petitioner entered an Alford plea to the charge of first degree
burglary as well as assault and battery in the first degree. (Dkt. No. 20-1 at 3-12). He was
sentenced to fifteen years' imprisonment for the burglary charge and ten years' imprisonment for
assault and battery, to run concurrently. (Dkt. No. 20-1 at II). Petitioner did not appeal his plea
On October 12, 2011, Petitioner filed a pro se application for post-conviction relief
(PCR) raising claims of ineffective assistance of plea counsel. An evidentiary hearing took place
on September May 24,2012, and the PCR court dismissed Petitioner's application with prejudice
on June 22, 2012. (Dkt. No. 20-1 at 62-68).
Petitioner timely filed a notice of appeal, and his appellate counsel filed a Johnson
petition for writ of certiorari in the South Carolina Supreme Court. The petition raised the
Did the PCR court err in denying Petitioner's claim for ineffective assistance of
plea counsel where the court did not make a finding as to whether Petitioner's
plea was knowing and intelligent in light of plea counsel's alleged omissions, but
instead denied the claim because Petitioner failed to show additional evidence or
defenses that plea counsel could have discovered had she more fully prepared?
(Dkt. No. 20-2). Petitioner also filed a pro se response to the Johnson petition. (Dkt. No. 20-4).
On February 25, 2015, the South Carolina Supreme Court filed an order denying certiorari and
granting PCR counsel's petition to be relieved (Dkt. No. 20-5). The South Carolina Court of
Appeals remitted the matter on March 17,2015. (Dkt. No. 18-10).
Petitioner filed this Petition for Writ of Habeas Corpus on March 27,2015. (Dkt. No.1).
Petitioner raises four grounds for relief: (l) that he is entitled to appeal his guilty plea, (2) that
the State lacked sufficient evidence to indict him on attempted murder, (3) that counsel was
ineffective for "Negating to Demonstrate Elements of Petitioners offense was Burglary 2nd
Degree," and (4) that he that he was denied due process of law and/or equal protection for the
"Illegal Sentence on Attempted Murder Indictment." (Dkt. No.1).
The Magistrate Judge found that none of the Petitioner's grounds satisfied § 2254(d)'s
standards and that all of the grounds lacked merit. (Dkt. No. 26). Petitioner subsequently filed
objections (Dkt. No. 29).
II. Legal Standard
A. Report & Recommendation
The Magistrate Judge makes only a recommendation to this Court. The 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 may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(1).
This Court is charged with making a de novo determination of those
portions of the R & R or specified proposed findings or recommendations to which objection is
made. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28
U.S.C. § 636(b)(1)); accord Fed. R. Civ. P. 72(b).
As to portions of the R & R to which no specific objection has been made, this Court
"must 'only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.'" Id. (quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in
the absence of specific objections to the R & R, the Court need not give any explanation for
adopting the Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d
198, 199-200 (4th Cir. 1983).
B. Federal Habeas Review
Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his petition
cannot be granted unless the claims "(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). "[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.
Rather, that application must also be
unreasonable." Williams v. Taylor, 529 U.S. 362,411 (2000). Importantly, "a determination of
a factual issue made by a State court shall be presumed to be correct," and Petitioner has "the
burden of rebutting the presumption of correctness by clear and convincing evidence." 28
U.S.C. § 2254(e)(I).
C. Habeas Review of Ineffective Assistance of Counsel
Where allegations of ineffective assistance of counsel are made, the question is "whether
counsel's conduct so undennined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668,
686 (1984). First, the Petitioner must show that counsel made errors so serious that counsel's
perfonnance was below the objective standard of reasonableness guaranteed by the Sixth
Id. at 687-88.
Second, the Petitioner must show that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." Id. at 694.
"The standards created by Strickland and § 2254( d) are both highly deferential ... and
when the two apply in tandem, review is doubly so." Harrington v. Richter, 131 S. Ct. 770, 788
(2011). In applying § 2254(d), "the 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. H /d.
Petitioner's first ground for relief is that he is entitled to appeal his guilty plea because
plea counsel was ineffective for failing to discuss his guilty plea. (Dkt. No. 1 at 5). Petitioner
did not raise any specific objections to the Magistrate Judge's conclusions regarding this ground
for relief, namely that (1) there is no constitutional right to direct appeal, and (2) PCR court's
rejection of the first grounds for relief involved neither an unreasonable application of clearly
established federal law, nor a decision based on an unreasonable detennination of the facts in
light of evidence presented. The Court finds that the Magistrate Judge ably and thoroughly
summarized the factual and legal issues and adopts the Magistrate Judge's finding on this issue
as its own.
Petitioner's second ground for relief is that the state of South Carolina lacked sufficient
evidence to indict him on attempted murder. (Dkt. No. I at 7). His fourth ground for relief is
that he was denied his rights to due process and equal protection for the "illegal sentence on the
attempted murder indictment. (Dkt. No. 1 at 10). Petitioner again failed to raise any specific
objections to the Magistrate Judge's findings. Because the Magistrate Judge ably and thoroughly
summarized the factual and legal issues and appropriately found that (1) the challenge to the
underlying attempted murder charge is moot because Petitioner was neither convicted of nor
pleaded guilty to attempted murder, (2) Petitioner's guilty plea waived all non-jurisdictional
claims except for ineffective assistance of counsel, and (3) Petitioner's plea counsel's actions
were not in error, the Court adopts the Magistrate Judge's findings on this issue as its own.
Petitioner's third ground for relief is that plea counsel was "ineffective for negating to
demonstrate elements of Petitioner's offense was burglary 2nd degree." (Dkt. No.1 at 8). In
other words, Petitioner argues that his plea counsel should have sought to reduce his charges of
burglary first degree to burglary second degree. Because Petitioner failed to raise this argument
in his state court proceedings, it is procedurally barred. Matthews v. Evatt, 105 F.3d 907, 911
(4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir.
2011) (noting that a habeas petitioner must "fairly present his claims to the state's highest
court."). Petitioner has failed to demonstrate cause or a fundamental miscarriage of justice that
would allow this Court to overlook the procedural deficiencies. See, e.g., Yeatts v. Angelone,
166 F.3d 255, 260-61 (4th Cir. 1999). Accordingly, the Court now adopts the Magistrate
Judge's findings as its own.
The Court ADOPTS the R & R (Dkt. No. 26), GRANTS Respondent's Motion for
Summary Judgment (Dkt. No. 19), and DISMISSES the habeas petition.
Certificate of Appealability
The governing law 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 the 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,
252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate
of appealability has not been met. Therefore, a certificate of appealability is DENIED.
AND IT IS SO ORDERED.
United States Dist ict Court Judge
Charleston, South Carolina
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