Perry v. McCall

Filing 45

OPINION AND ORDER RULING ON 40 REPORT AND RECOMMENDATION, granting Respondent's motion for summary judgment 23 and denying Petitioner's motions for entry of default, to dismiss and for default judgment 18 , 19 , 29 . A certificate of appealability is denied. Signed by Chief Judge Margaret B Seymour on 8/28/2012. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Tyrone Perry, #307793,

)
) C/A No. 1:11-2334-MBS
Petitioner,
)
)
vs.
)
) ORDER AND OPINION
Warden McCall, Perry Correctional
)
Institution,
)
)
Respondent.
)
____________________________________)
Petitioner Tyrone Perry is an inmate in custody of the South Carolina Department of
Corrections. Petitioner currently is housed at Perry Correctional Institution in Pelzer, South
Carolina. On September 2, 2011, Petitioner, proceeding pro se, filed the within petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local Rule
73.02, D.S.C., this matter was referred to United States Magistrate Judge Shiva V. Hodges for a
Report and Recommendation.
On September 26, 2011, the Magistrate Judge issued an order authorizing service of process
and directing Respondent to file a return no later than fifty days from the date of service, or
November 18, 2011. On November 18, 2011, Respondent requested an extension of time to answer
until December 19, 2011, which motion was granted on November 21, 2011. Also on November
21, 2011, Petitioner filed a motion for entry of default. On December 9, 2011, Petitioner filed a
motion to dismiss on the grounds that Respondent had failed to respond within the allotted time. On
December 19, 2011, Respondent filed a return. Petitioner filed a motion for default judgment on
December 27, 2011. Because Respondent’s return was timely filed, Petitioner’s motions for entry
of default, to dismiss, and for default judgment (ECF Nos. 18, 20, 29) are denied.

Respondent filed a motion for summary judgment on December 19, 2011. Respondent
asserted, among other things, that Petitioner’s grounds for relief are procedurally barred. By order
filed December 20, 2011, in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Petitioner was advised of the summary judgment procedure and the possible consequences of failing
to respond adequately. Petitioner filed a response in opposition on January 23, 2012, along with
additional attachments to the response on January 30, 2012 and February 2, 2012. On May 17, 2012,
the Magistrate Judge issued a Report and Recommendation wherein she determined that Petitioner’s
claims are procedurally defaulted. Accordingly, she recommended that Respondent’s motion for
summary judgment be granted. Petitioner filed objections to the Report and Recommendation on
June 4, 2012.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. This court is obligated to conduct a de novo review of every portion of the
Magistrate Judge’s report to which objections have been filed. Id.
I. FACTS
On February 24, 2005, Petitioner was indicted in Spartanburg County, South Carolina, for
murder, in violation of S.C. Code Ann. §§ 16-3-10 and 16-3-20. On February 1, 2006, Petitioner
appeared with trial counsel before the Honorable J. Cordell Maddox, Jr. for a straight-up plea and
sentencing. Transcript of Record, ECF No. 22-1, 5. The trial judge queried Petitioner regarding the
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voluntariness of his plea, and asked him if he understood that the charge of murder carried a sentence
of between thirty years and life. Id. at 7-8. Petitioner indicated that he understood he was waiving
his constitutional rights. Petitioner stated that no one had promised him anything or threatened him
in any manner to get him to plead guilty. Petitioner admitted that he was pleading guilty because he
was guilty. Id. at 8-10.
The solicitor informed the trial judge that the incident had occurred on January 4, 2005. Id.
at 10. According to the solicitor, Petitioner was in a relationship with the victim. On January 3
2006, the victim had worked a shift at Spartanburg Steel with her twin brother, whom she told she
was leaving Petitioner and returning home to live with her mother. Id. Petitioner appeared at the
victim’s workplace and had a discussion with the victim’s brother. Petitioner agreed to allow the
victim to leave unaccosted. Id. at 11. Around 12:22 a.m., the Spartanburg County Sheriff’s Office
received a telephone call about a stabbing. The victim was found in the road unresponsive. Id. Eye
witnesses on the scene informed law enforcement that they had seen Petitioner hitting the victim in
her vehicle. The victim had jumped from the car and run. Petitioner chased her and stabbed her
twenty-two times. Petitioner then fled the scene. Id. at 11-12, 13. The victim was transported to
Spartanburg Regional Hospital, where she died. Id. at 13.
The solicitor stated that Petitioner was taken into custody. He first gave a statement that the
victim had pulled a knife and threatened him, and that he stabbed her in self defense. When
challenged, he gave a second statement, stating that he had “just lost it” and stabbed the victim. Id.
at 12. According to the solicitor, Petitioner took law enforcement officers to the location of the knife
used in the stabbing. Blood DNA analysis showed the victim’s blood on Petitioner’s clothing. Id.
at 12-13. Petitioner agreed with the facts as recited by the solicitor. Id. at 14.
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Trial counsel opined that Petitioner’s acts were the result of a drug addiction to cocaine,
heroin, and marijuana. Id. at 16-17. Petitioner’s mother also offered her opinion that Petitioner
“never had these kinds of problems until he got into the drug addiction.” Id. at 17. Petitioner
apologized to the family of the victim. Id. at 20.
The trial judge informed Petitioner that, contrary to earlier remarks that Petitioner would need
serve only eighty-five percent of his sentence, the sentence would be a “day-per-day.” Id. at 21.
Petitioner indicated that he understood he would be required to serve the entire sentence. Id. The
trial judge found that Petitioner’s guilty plea was freely and voluntarily made. The trial judge
therefore accepted the plea and sentenced Petitioner to fifty years incarceration. Id. at 27.
Petitioner appealed his sentenced on February 3, 2006. A brief pursuant to Anders v.
California, 386 U.S. 738 (1967), was filed on Petitioner’s behalf by counsel from the South Carolina
Commission on Indigent Defense. The brief addressed the following sole issue:
STATEMENT OF ISSUE ON APPEAL
Whether [Petitioner’s] waiver of rights colloquy failed to satisfy the mandates
of Boykin v. Alabama, 395 U.S. 238 (1969) since it was less than one page of
transcript long and consequently was not a meaningful waiver?
ECF No. 22-1, 32.
The South Carolina Court of Appeals dismissed the appeal by unpublished opinion filed
April 7, 2008. The case was remitted to the lower court on April 24, 2008. ECF No. 22-6, 1.
On February 19, 2008, Petitioner filed an application for post-conviction relief (PCR) in the
Court of Common Pleas for Spartanburg County, South Carolina. Petitioner asserted the following
grounds for relief:

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1.

Ineffective assistance of counsel
a.
failure to investigate witnesses
b.
failure to investigate medical records
c.
failure to file motion for coerced statements to be suppressed

2.

Involuntary guilty plea

ECF No. 22-7, 3.
Petitioner, represented by PCR counsel, appeared before the Honorable J. Mark Hayes, II on
July 28, 2009 for a hearing on his PCR application. Petitioner, his mother, and his aunt all testified
that trial counsel forced Petitioner to sign a plea agreement. They also testified that trial counsel
informed Petitioner that he would be sentenced to only twenty-five years incarceration. Transcript
of Record, ECF No. 22-2, 2-10 & 18. Petitioner further testified that he believed the witness
statements were inconsistent and that he had wanted trial counsel to interview those witnesses. Id.
at 16. Petitioner further testified that he was coerced into making a statement to law enforcement
shortly after the murder. Id. at 17. Petitioner denied being informed of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). Id. at 18. Petitioner stated that he believed he would be serving an
eighty-five percent sentence as opposed to a day-for-day sentence. Id. at 20. Petitioner further
asserted that he did not understand how trial counsel had come up with the assumption that Petitioner
was addicted to drugs. Id.

Petitioner stated that he thought his “straight up” plea was “the

negotiated, the bargain we made earlier.” Id. at 22. Petitioner also testified that he had requested
trial counsel to suppress his statements to law enforcement, but that trial counsel had failed to do so.
Id.
Trial counsel testified that there was a lot of evidence against Petitioner. Id. at 28. Trial
counsel testified that he had obtained a mental evaluation of Petitioner, but that the evaluation did

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not benefit Petitioner’s defense. Id. at 29. Trial counsel stated that the solicitor did not offer a plea
bargain, but did make an offer of a choice of judge. Id. at 29-30. Trial counsel acknowledged that
he had not conducted an independent investigation of the witnesses or file a motion to suppress
Petitioner’s statements to law enforcement officers. Id. at 38.
On October 13, 2009, the PCR judge issued an order in which he found trial counsel’s
testimony to be credible and Petitioner’s testimony to be not credible. The PCR judge determined
that Petitioner failed to meet his burden of proof as to ineffective assistance of counsel. The PCR
judge further determined that Petitioner failed to “present any evidence regarding any and all
allegations raised in the application or at the hearing . . . and not specifically addressed in this
Order[.]” Accordingly, the PCR judge denied and dismissed Petitioner’s PCR application. ECF No.
22-2, 3-49.1
Petitioner filed a notice of appeal on March 22, 2010. A petition for writ of certiorari
pursuant to Johnson v. State, 364 S.E.2d 201 (S.C. 1988), was filed on Petitioner’s behalf by the
South Carolina Commission on Indigent Defense, raising the following sole issue:
ISSUE PRESENTED
Trial counsel erred in failing to fully explain to petitioner sentencing
consequences in the case.
ECF No. 22-9, 3. The gravamen of the argument made by PCR appellate counsel was that trial
counsel was ineffective for failing to ensure Petitioner understood that his sentence would be a “day
for day” sentence. Id. at 5.
Petitioner also filed a pro se brief in which he raised the following issues:
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It appears Petitioner attempted to file a motion to reconsider pursuant to S.C. R. Civ. P. 59(e), but
the motion was untimely. See ECF No. 43-1, 17-24.
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ISSUES PRESENTED
I. Whether PCR counsel was ineffective for failing to seek appellate review to
preserve issues raised at PCR to satisfy the mandates of Pruitt v. State 310 S.C. 254,
423 SE2d 127 (1991) and Austin v. State 409 SE2d 395 (1992) since a 59(e) motion
wasn’t filed
II. Whether PCR court errored in dismissing post-conviction relief application and
not complying with S.C. Code Ann 17-27-80 (1985) and Rule 52(a) SCRCP because
dismissal doesn’t contain specific findings of fact and conclusion of law with regard
to each issue raised in petitioner’s application and at the hearing.
ECF No. 22-10, 3.
The South Carolina Supreme Court denied the petition for writ of certiorari on July 31, 2011.
ECF No. 22-11. The matter was remitted to the lower court on August 9, 2011. ECF No. 22-12.
Petitioner’s § 2254 petition sets for the following grounds for relief:
GROUND ONE: Failure to call witnesses (investigate). Crime scene witnesses.
Alibi witnesses. Failure to investigate witnesses before advising to plea.
GROUND TWO: Failure to investigate medical records. Ineffective for failing to
investigate medical records (medical health records) and psychiatrists of petitioner.
GROUND THREE: Failure to suppress statements. Failed to file motion to suppress
coerced statements made by police.
GROUND FOUR: Government breached plea agreement. Plea counsel coerced
petitioner by telling him he would receive 25 years with two witnesses present.
Petitioner actually got 50 years.
ECF No. 1, 6-11.
The § 2254 petition is governed by the terms of 28 U.S.C. § 2254, as amended by the AntiTerrorism and Effective Death Penalty Act (“AEDPA”), which became effective on April 24, 1996.
II. DISCUSSION
The Magistrate Judge determined that Petitioner’s Grounds One through Four as set forth in

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his § 2254 petition are procedurally barred. Title 28, United States Code, Section 2254(b)(1)
provides:
(b)(1) An 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 unless it appears that–
(A) the applicant has exhausted the remedies available in the courts of the
State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.
An exhausted claim has been “fairly presented” to the state courts. Flippo v. McBride, 393
F. App’x 93, 97 (4th Cir. 2010) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.1997)). A
procedurally defaulted claim is one that either has been, or would be, rejected by the state courts, not
on the merits, but on the basis of an adequate and independent state procedural rule. Id. (citing
Burket v. Angelone, 208 F.3d 172, 183 (4th Cir.2000)). Thus, a federal court will not review a
question of federal law decided by a state court if the decision of that court rests on a state law
ground that is independent of the federal question and adequate to support the judgment. Coleman
v. Thompson, 501 U.S. 722, 729 (1991). This rule applies whether the state law ground is
substantive or procedural. Id. The “independent and adequate state law ground” applies to bar
federal habeas when a state court declines to address a petitioner’s federal claims because the
petitioner failed to meet a state procedural requirement. Id. at 730. This rule also applies when a
petitioner has deprived the state court of an opportunity to address his federal claims in the first
instance because he has failed to meet the state’s procedural requirements for presenting his claim.
Id. at 732. Thus, when a petitioner fails to exhaust state remedies and the court to which petitioner

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would be required to present his claims in order to meet the exhaustion requirement would now find
the claims procedurally barred, there is a procedural default for purposes of federal habeas regardless
of the decision of the last state court to which the petitioner actually presented his claims. Id. at 735,
n.1.
Courts may excuse a procedural default and reach the merits of a claim only if petitioner can
show cause for the default and prejudice resulting therefrom or that a failure to consider the claims
will result in a fundamental miscarriage of justice. Id. (quoting McNeill v. Polk, 476 F.3d 206, 211
(4th Cir. 2007)). This rule protects the state's interest in the finality of its judgments and promotes
respect for the state-court system. Bostick v. Stevenson, 589 F.2d 160 (4th Cir. 2009) (citing
Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
In this case, Petitioner generally raised Grounds One through Four at his PCR hearing. The
PCR judge determined that Petitioner did not receive ineffective assistance of counsel. However,
as demonstrated hereinabove, Petitioner did not seek a writ of certiorari as to any of these specific
grounds for relief.

Rather, PCR appellate counsel raised an issue regarding Petitioner’s

understanding that he would receive a “day for day” sentence. Petitioner raised grounds concerning
Rule 59(e). Petitioner now would be prohibited by state procedural rules from filing a petition for
writ of habeas corpus as to Grounds One through Four. See S.C. R. App. P. 203. Accordingly, these
issues are barred from federal habeas review.
Petitioner contends that he attempted to comply with South Carolina filing requirements but
was thwarted either at McCormick Correctional Institution, where he previously was housed, or by
ineffective assistance of PCR appellate counsel. “‘[T]he existence of cause for a procedural default
must ordinarily turn on whether the prisoner can show that some objective factor external to the
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defense impeded counsel's effort to comply with the State's procedural rule.’” Weeks v. Angelone,
176 F3d 249, 272 (4th Cir. 1999) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
Constitutionally ineffective assistance of counsel may constitute “cause” for a procedural default
under certain circumstances. Id. (citing Murray, 477 U.S. at 488). In order for ineffective assistance
of counsel to constitute cause for a procedural default, Petitioner must first demonstrate a
constitutional right to counsel in the proceeding at issue. Ivey v. Catoe, 36 F. App’x 718, 730 (4th
Cir. 2002) (citing Mackall v. Angelone, 131 F.3d 442, 448 (4th Cir. 1997)).
As an initial matter, with respect to Petitioner’s contention that he received ineffective
assistance of counsel in raising all claims in the petition for writ of certiorari, Petitioner has no right
to effective assistance of counsel in his state habeas proceedings. Accordingly, he cannot
demonstrate cause to excuse the procedural default.
With respect to the staff of the McCormick Correctional Institution mail room, Petitioner
argues that the staff’s negligence prevented him from filing a timely Rule 59(e) motion seeking
reconsideration of the PCR judge’s order. However, Petitioner does not explain how this would
have aided him in appealing the issues raised in his application for PCR. Petitioner testified during
the PCR hearing regarding the facts supporting Grounds One through Four. The PCR judge ruled
that Petitioner failed to meet his burden of proof as to ineffective assistance of counsel. Further,
Petitioner had the opportunity to raise the issues set forth in Grounds One through Four in his pro
se petition for writ of certiorari. Petitioner’s objection is without merit.
The court further agrees with the Magistrate Judge that Petitioner cannot demonstrate a
miscarriage of justice. Where a constitutional violation has probably resulted in the conviction of
one who is actually innocent, a federal habeas court may grant the writ even in the absence of a
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showing of cause for the procedural default. Murray, 477 U.S. at 496. In this case, Petitioner
admitted his guilt under oath at the guilty plea hearing. The solicitor placed facts about the murder
in the record, to which facts Petitioner agreed. A guilty plea is a solemn judicial admission of the
truth of the charge, and the right to later contest that plea is usually foreclosed. United States v.
Hoyle, 33 F.3d 415, 419 (4th Cir. 1994) (citing Via v. Superintendent, 643 F.2d 167, 171 (4th Cir.
1981)). There is no foundation in the record to support a finding that Petitioner is actually innocent,
or that his plea was not knowing and voluntary. Petitioner’s objection is without merit.
III. CONCLUSION
The court concurs in the Report and Recommendation. For the reasons stated, Respondent’s
motion for summary judgment (ECF No. 23) is granted. Petitioner’s petition for a writ of habeas
corpus is denied and dismissed, with prejudice.
IV. CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases, as effective December 1, 2009,
provides that the district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant. 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 that any assessment of the constitutional
claims by the district court is debatable or wrong and that any dispositive procedural ruling by the
district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Rose v. Lee,
252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that Petitioner has not made the requisite

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showing. Accordingly, the court denies a certificate of appealability.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Chief United States District Judge
Columbia, South Carolina
August 28, 2012.

NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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