White v. Taylor

Filing 32

ORDER adopting 27 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 17 Motion for Summary Judgment. The Court denies a certificate of appealability. Signed by Honorable Sol Blatt, Jr on 3/17/2016.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Thompson White, #315546,
Petitioner,

v.

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Civil Action No. 2:15-2046-S8

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Warden Edsel T. Taylor,
Respondent.

ORDER

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This matter is before the Court upon Petitioner Thompson White's ("White" or "the
Petitioner") pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
wherein he alleges two grounds: (1) "false imprisonment/unlawful confinement for a murder
in which Petitioner defended himself from an oncoming threat" and (2) "Petitioner White
was or actually believed he was in imminent danger of losing his life or sustaining serious
bodily injury and had right to stand his ground." (Entry 1 at 6, 8.)
On August 12, 2015, the Respondent filed a motion for summary judgment, and
White filed a response in opposition. Pursuant to 28 U.S.C. 636(b)(1)(8) and the Local
Rules for the District of South Carolina, the matter was referred to a United States
Magistrate Judge for review. On January 26,2016, Magistrate Judge Mary Gordon 8aker
issued a report and recommendation ("R&R") outlining the issues and recommending that
the Court grant the Respondent's motion for summary judgment.

BACKGROUND
The Charleston County Grand Jury indicted the Petitioner for murder in March of
2011. Attorneys Andrew J. Savage and Allen Mastantuno represented the Petitioner. On
February 14, 2012, the Petitioner entered a guilty plea to the lesser offense of voluntary

manslaughter, with a sentencing cap of fifteen years.

The Honorable Thomas L.

Hughston, Jr., accepted the Petitioner's plea and sentenced him to twelve years'
imprisonment. On February 24, 2012, Savage filed a motion to reconsider the sentence,
and on February 11,2013, Judge Hughston reduced the Petitioner's sentence to ten years.
On July 16, 2013, the Petitioner filed an application for post-conviction relief
("PCR"), alleging that counsel was ineffective for failing to investigate the facts of his case
and the governing law and for failing to pursue available remedies, resulting in an
unknowing and involuntary plea.

On December 3, 2013, the State responded and

requested a hearing. Attorney Rodney D. Davis represented the Petitioner.
On April 16, 2014, the Honorable R. Markley Dennis held a hearing at which the
Petitioner and his plea counsel, Savage, testified. Judge Dennis ultimately found that
neither self-defense nor the Protection of Persons and Property Act, S.C. Code §§ 16-1410 through -450 ("PPP" Act") applied to the facts of the Petitioner's case and denied relief
in an order in June of 2014, which was amended by an order filed July 16, 2014.
The Petitioner appealed the PCR court's order, and Appellate Defendant Robert M.
Pachak represented the Petitioner. Pachak filed a Johnson petition raising the issue of
whether plea counsel was ineffective for failing to pursue immunity under the PPP Act.
The Petitioner also filed a pro se response. The Supreme Court denied the petition on
December 10, 2014, and issued the remittitur on December 30,2014.
STANDARDS OF REVIEW

fi"

The Magistrate Judge's R&R

The Magistrate Judge makes only a recommendation to the Court.

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The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the R&R to which
a specific objection is made. The Court may accept, reject, or modify, in whole or in part,
the recommendation made by the Magistrate Judge or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b).

II.

Summary Judgment
To grant a motion for summary judgment, this Court must find that "there is no

genuine issue as to any material fact." Fed. R. Civ. P. 56(c). The Court is not to weigh the
evidence, but rather to determine if there is a genuine issue of fact. Anderson v. Liberty
Lobby. Inc., 477 U.S. 242, 249 (1986).

If no material factual disputes remain, then

summary judgment should be granted against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on
which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
All evidence should be viewed in the light most favorable to the non-moving party. See
Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).

III.

Habeas Corpus
Because the Petitioner filed his petition after the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by
28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett,
134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas
corpus relief unless the underlying state adjudication:

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(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).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that
section 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have
independent meaning. lQ... at 404-05. A federal habeas court may issue the writ under the
"contrary to" clause if the state court applies a rule different from the governing law set forth
in contrOlling cases, or if it decides a case differently than the Supreme Court has done on
a set of materially indistinguishable facts. lQ... at 405-06. A federal habeas court may grant
relief under the "unreasonable application" clause if the state court correctly identifies the
governing legal principle from Supreme Court decisions but unreasonably applies it to the
facts of the particular case. lQ... at 407-08. Factual determinations made by the state "shall
be presumed to be correct," and U[t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
DISCUSSION
In the R&R, the Magistrate Judge first determined that, to the extent the Petitioner
asserts that he is actually innocent, his claims are without merit, first, because it is not clear
whether a claim of actual innocence unaccompanied by an assertion of an independent
constitutional violation is even cognizable under section 2254, and second, because even
if such a claim is cognizable, the Petitioner has failed to present any evidence to show that
his guilty plea was unknowing or involuntary or any "new evidence" that was not available
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at the time of his plea. See United States. v. Hawkins, C.A. No. 2:10-cr-0004-1, 2015 WL
7308677, *8 n. 16 (W.O. Va. Nov. 19,2015) (citing Royal v. Taylor, 188 F.3d 239, 243 (4th
Cir. 1999» ("Whether a freestanding claim of actual innocence is cognizable in a habeas
action unaccompanied by an assertion of an independent constitutional violation remains
unsettled in the Fourth Circuit."); see also Schlup v. Oelo, 513 U.S. 298, 324 (1995)
(holding that a credible claim of actual innocence accompanied by a constitutional error
"requires petitioner to support his allegations of constitutional error with new reliable
evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence-that was not presented at triaL")
Next, the Magistrate Judge considered the Petitioner's claims through the lens of
ineffective assistance of counsel and found no error in the PCR court's findings that neither
self-defense nor the PPP Act applied to the facts of the case and that plea counsel was
not ineffective. Specifically, the Magistrate Judge stated:
At the PCR hearing, Petitioner testified that plea counsel had discussed selfdefense with him, but he did not understand it. He stated that plea counsel
did not discuss the PPP Act with him. (Okt. No. 18-1 at 52-62.) Plea counsel
testified he was experienced with the PPP act and discussed both it and selfdefense with Petitioner. (lQ., at 64-70.) Plea counsel said he investigated the
facts and determined that neither the PPP Act nor self-defense would apply
to Petitioner's case because Petitioner had gone into his residence, retrieved
a gun, then left his property before firing at the deceased. (lQ.,)
The PCR court ruled that plea counsel was not ineffective. (Okt. No. 18-1 at
107-116.) The PCR [court] concluded that the PPP Act did not provide
immunity in Petitioner's case. (lQ.,) The PCR court found plea counsel's
testimony to be credible and found the Petitioner's testimony that he was not
informed about the PPP Act to not be credible. (lQ.,) Having reviewed the
analysis of the PCR court. this court finds that the PCR court's ruling was not
contrary to clearly established federal law or an unreasonable application of
the facts of the case at bar.
(Entry 27 at 10.) In so finding, the Magistrate Judge considered the specific elements of

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self-defense1 and the PPP Ace and ultimately determined that the PCR court reasonably
applied the facts to the law.
In his objections to the R&R, the Petitioner does not point to any specific portion of
the R&R to which he objects; rather, he essentially reiterates his claim that he acted in selfdefense and asserts that his counsel prejudiced him by failing to seek immunity pursuant
to the PPP Act. The Petitioner also restates his version of the facts; however, as the
Magistrate Judge noted, absent convincing evidence to the contrary, the Petitioner is
bound by the representations made during his plea colloquy, and the Court finds that the
Petitioner simply has not offered any evidence to show that his plea was involuntary.
See Walton v. Angelone, 321 F.3ed 442, 462 (4th Cir. 2003) (citing Fields v. Atry Gen. of
Maryland, 956 F.2d 1290, 1299 (4th Cir. 1992»,

1 As set forth by the Magistrate Judge, in South Carolina a defendant may use
deadly force in self-defense if all four of the following factors are met:
(1) The defendant was without fault in bringing on the difficulty;
(2) The defendant ... actually believed he was in imminent danger of losing
his life or sustaining serious bodily injury, or he actually was in such imminent
danger;
(3) If the defense is based upon the defendant's actual belief of imminent
danger, a reasonable prudent man of ordinary firmness and courage would
have entertained the same belief ... ; and
(4) The defendant had no other probable means of avoiding the danger of
losing his own life or sustaining serious bodily injury than to act as he did in
this particular instance.

State v. Dickey, 394 S.C. 491,499,716 S.E.2d 97, 101 (2011). In addition, "[i]mmunity
under
2 "Immunity under the [PPP Act] is predicated on an accused demonstrating the
elements of self-defense to the satisfaction of the trial court by the preponderance of the
evidence, save the duty to retreat." State v. Douglas, 411 S.C. 307, 318,768 S.E.2d 232,
238 (Ct. App. 2014), reh'g denied (Feb. 19,2015) (quotations and citations omitted).

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Ultimately, as the Magistrate Judge noted, the PCR court determined that plea
counsel was not ineffective.

In so determining, the PCR court found plea counsel's

testimony credible and the Petitioner's testimony not credible. As noted by the Magistrate
Judge, plea counsel testified that he discussed self-defense and the PPP Act with the
Petitioner but he did not believe, based on his investigation of the facts, that either applied
because the Petitioner went into his residence, retrieved a gun, and then left his property
before shooting the victim. After review, the Court agrees with the Magistrate Judge that
the PCR court's ruling was not contrary to clearly established federal law or an
unreasonable application of the facts.

Moreover, the Court finds the Petitioner's

conclusory objections to be without merit.
CONCLUSION

After a thorough review of the case, the Court finds that the Magistrate Judge's R&R
accurately summarizes the case and the applicable law. Accordingly, it is hereby
ORDERED that the R&R (Entry 27) is adopted and incorporated herein; the

Petitioner's objections (Entry 29) are overruled; and the Respondent's motion for summary
judgment (Entry 17) is granted.
AND IT IS SO ORDERED.

March -'1..,2016
Charleston, South Carolina

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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 petitioner satisfies this standard by demonstrating that reasonable
jurists would find that this Court's assessment of the constitutional claims is debatable or
wrong or that the issues presented were adequate to deserve further attention. See
Miller-EI 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). Here, the Court finds that the
Petitioner has not met the legal standard for the issuance of a certificate of appealability.
Therefore, the Court denies a certificate of appealability.

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