Stogner v. Pate

Filing 29

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 23 Report and Recommendation, granting 12 Motion for Summary Judgment, dismissing Petition with prejudice and denying a certificate of appealability. Signed by Honorable Timothy M Cain on 4/16/2013. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Christopher Mark Stogner,

)
)
Petitioner,
)
)
v.
)
)
Warden John R. Pate, Allendale
)
Correctional Institution,
)
)
Respondent.
)
_______________________________ )

C/A No. 1:12-2432-TMC
OPINION & ORDER

On August 17, 2012, Petitioner, a state prisoner proceeding pro se, filed a
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.1 In accordance with
28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were
referred to a Magistrate Judge.

On February 27 2013, Magistrate Judge Shiva V.

Hodges issued a Report and Recommendation ("Report") recommending that the
Petition be dismissed without prejudice. (ECF No. 23). The Magistrate Judge provided
Petitioner a notice advising him of his right to file objections to the Report. (ECF No. 23
at 19). On March 15, 2013, Petitioner filed objections to the Magistrate Judge's Report.
(ECF No. 26).
The Magistrate Judge makes only a recommendation to the court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the court. 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 to which specific objection is made, and the court may accept, reject, or modify,

1

This date reflects the date stamped by the prison mailroom on the envelope
containing the habeas petition. (ECF No. 1-4). See Houston v. Lack, 487 U.S. 266
(1988) (stating that a prisoner’s pleading is deemed filed at the moment of delivery to
prison authorities for forwarding to district court).

in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter
with instructions. 28 U.S.C. § 636(b)(1).
The 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. However, the court
need not conduct a de novo review when a party makes only “general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In
the absence of a timely filed, specific objection, the Magistrate Judge’s conclusions are
reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
Discussion
The Magistrate Judge sets forth the factual and procedural background. In short,
Petitioner was originally charged with and convicted of armed robbery in 1996.
However, on appeal, his conviction was vacated because the indictment failed to allege
a taking or asportation. State v. Stogner, Op. No. 2002-UP-724 (S.C. Ct. App. filed Nov.
21, 2002). (ECF No. 11-23). The court found that the indictment alleged merely an
attempt and the reference to the armed robbery statute did not cure the defect. Id.
Petitioner was re-indicted for armed robbery on April 26, 2004.

(App. 439-440).

Proceeding pro se, Petitioner was tried by a jury on April 26-28, 2004, and found guilty
of armed robbery.2 He was sentenced to 25 years.
Petitioner raises two grounds for habeas relief in his petition, quoted verbatim:
Ground One: Did the prosecutor violate Petitioner’s rights when he
sought armed robbery indictment when original was attempting armed
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The jury was drawn on April 26th and the trial started on April 27th.
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robbery.
Supporting Facts: Petitioner was convicted of armed robbery in 2001.
After an appeal the South Carolina Court of Appeals ruled that the
indictment only alleged attempted armed robbery. Prosecutor then
obtained a new armed robbery indictment on the same day of trial and
never disclosed it to Petitioner. Petitioner only earned of this new
indictment during the direct appeal.
Ground Two: Was the increase of 9 years in petitioner’s sentence after
successful appeal vindictive?
Supporting Facts: Petitioner went to Jury trial in 2001 where he was
found guilty. Petitioner was sentenced to 16 years. After a successful
appeal, on the ground of subject matter jurisdiction, Petitioner was
released. Prosecutor said through attorney that if petitioner didn’t plea,
Petitioner would receive harsher sentence.
Prosecutor scheduled
Petitioner’s fourth trial in front of a Judge, notorius for harse sentencing,
where Petitioner received 25 years.

(ECF No. 1 - Pet. at 5 and 7). The Magistrate Judge found Petitioner’s claims
procedurally barred because Petitioner did not properly raise either of these issues in
state court at the trial level and he did not pursue them on direct appeal. (Report at 14).
In his objections, Petitioner contends that he raised the issue he asserts in
Ground One “at the first chance he became aware of the new indictment, which was at
the direct appeal stage, when [he] received the Record of Appeal.” (Objections at 2).
The court finds however that Petitioner has not overcome the procedural bar.
When a state prisoner has defaulted his federal claims in state court, federal
habeas review of the claim is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental miscarriage
of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). To show cause, a

petitioner must demonstrate that there were “objective factors,” external to his defense,
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which impeded him from raising his claim at an earlier stage. Murray v. Carrier, 477
U.S. 478, 488 (1986). To show prejudice, a petitioner must show that the alleged
constitutional violation worked to his actual and substantial disadvantage, infecting his
entire trial with error of a constitutional magnitude. Id. at 488.
The “miscarriage of justice” exception is a narrow exception to the cause
requirement. A habeas petitioner falls within this narrow exception if the petitioner can
demonstrate that a constitutional violation has “probably resulted” in the conviction of
one who is “actually innocent” of the substantive offense. Id. at 496. “Actual innocence”
is not an independent claim, but only a method of excusing default. O'Dell v.
Netherland, 95 F.3d 1214, 1246 (4th Cir.1996), aff'd, 521 U.S. 151 (1997). To prevail
under this theory, a petitioner must produce new evidence not available at trial to
establish his factual innocence. Royal v. Taylor, 188 F.3d 239 (4th Cir.1999). Actual
innocence means “factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998) (citation omitted). Additionally, the claim of actual
innocence must be supported “with new reliable evidence,” and “the petitioner must
show that it is more likely than not that no reasonable juror would have convicted him in
the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 324, 327 (1995).
Petitioner has not shown sufficient cause and prejudice to excuse the default of
the claim he raises in Ground One. The record does not support Petitioner’s contentions
that he did not become aware of the indictment until appeal. During jury selection, the
trial judge noted that Petitioner was charged with armed robbery and he read the
indictment into the record. (App. 10-11).

Further, when questioning Petitioner about

his desire to proceed pro se, the trial judge asked him if he understood that he was
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charged with armed robbery and facing a maximum 30-year sentence and a 10-year
minimum sentence. (App. 29-30). Petitioner responded affirmatively. Id. Additionally,
prior to opening statements, the trial judge referring to the indictment, again noted that
the State had charged Petitioner with robbery while armed with a deadly weapon. (App.
111-12). Moreover, Petitioner has not offered any new evidence to suggest that he is
actually innocent. Accordingly, this claim is barred from federal habeas review.
As to Ground Two, in his objections, Petitioner contends that he raised the issue
of whether his longer sentence following his re-trial was vindictive when he requested
the trial judge reconsider his sentence and he raised it in his pro se brief on appeal.
(Objections at 2). However, as the Magistrate Judge noted, Petitioner did not raise this
issue on direct appeal.

(Report at 14).

In his PCR appeal, Petitioner raised the

allegation of ineffective assistance of appellate counsel for failing to argue on direct
appeal that a harsher sentence had been imposed on re-trial. Issues that relate to trial
court error cannot be raised in state PCR proceedings absent a claim of ineffective
assistance of counsel. Drayton v. Evatt, 430 S.E.2d 517, 520 (S.C.1993) (holding in
PCR petitioner cannot assert any issues that could have been raised at trial or on direct
appeal).
Moreover, that court notes that the Petitioner’s issue is without merit. In North
Carolina v. Pearce, 395 U.S. 711 (1969), the Supreme Court held that vindictiveness
against a defendant for seeking appellate review and obtaining a new trial must not be a
factor in sentencing. The Court held that whenever a harsher sentence is imposed after
a retrial, the reasons for the harsher sentence, and the factual data underlying the
reasons, must affirmatively appear. Id. at 726. More recently, the Supreme Court held
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in Texas v. McCullough, 475 U.S. 134 (1986), that the Pearce presumption arises from
the trial judge's “personal stake” in the original conviction, and may be inapplicable
when the second sentencer is a different trial judge. Id. at 980. In the absence of the
Pearce presumption, a defendant must prove actual vindictiveness to obtain relief.
Wasman v. United States, 468 U.S. 559 (1984).
As the state PCR court found, there is nothing in the record that suggests
Petitioner’s second sentence was based on anything other than proper sentencing
considerations. The state courts' disposition of this claim was not contrary to, nor an
unreasonable application of, established federal law, or based on an unreasonable
determination of facts, and accordingly, even if this claim was not procedurally bared,
Petitioner would not be entitled to federal habeas relief as to this claim.
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 appealability.
Conclusion
After a thorough review of the Report and the record in this case pursuant to the
standard set forth above, the Court finds Petitioner’s objections are without merit.
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Accordingly, the court adopts the Report and incorporates it herein.

It is therefore

ORDERED that the Respondent’s Motion for Summary Judgement is GRANTED and
this Petition is DISMISSED with prejudice. It is further ordered that a certificate of
appealability is DENIED because the Petitioner has failed to make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
April 16, 2013

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