Folkes v. Nelson

Filing 40

ORDER: After carefully considering the appropriate remedy under these highly unusual facts, the Court hereby GRANTS Petitioners habeas petition as to Ground 3 (Dkt. No. 1-1) and ORDERS that Petitioner be released from prison on or before May 1, 2021 unless the State of South Carolina before then reinstates his right to discretionary appellate review of the September 24, 2010 decision of the South Carolina Court of Appeals denying his direct appeal. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 1/7/21.(ltap, )

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Clinton Folkes, # 216506,

)
)
Petitioner,
)
)
v.
)
)
Warden Nelsen,
)
)
Respondent.
)
___________________________________ )

Civil Action No. 2:19-0760-RMG

ORDER AND OPINION

Before the Court is the Petitioner’s petition for a writ of habeas corpus on a single
remaining ground, Ground 3, challenging the effectiveness of appellate counsel following the
issuance of the adverse decision of the South Carolina Court of Appeals on September 24, 2010
until the issuance of the remittitur on October 18, 2010. The Magistrate Judge issued a Report
and Recommendation (“R & R”) recommending that Respondent’s motion for summary
judgment be granted. (Dkt. No. 38.) Petitioner filed objections to the R & R and the Respondent
filed no reply. (Dkt. No. 39.) For reasons set forth below, the petition is granted.
I.

Background
Petitioner Clinton Folkes proceeded pro se to seek a writ of habeas corpus pursuant to 28

U.S.C. § 2254. He is incarcerated on a term of life imprisonment without possibility of parole.
In 2008, he was tried in the Richland County Court of General Sessions and found guilty by a
jury of assault and battery with intent to kill. The conviction stemmed from a July 2007 physical
fight during which Petitioner cut a man in the neck with a knife and was heard at the time, by
witnesses who testified at trial, to have said, “I should have killed you[.]” (Dkt. No. 14-1 at 245,
247, 436.)

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The Warden moved for summary judgment on Petitioner’s § 2254 motion, to which
Petitioner responded in opposition. The Court granted summary judgment as to Grounds One,
Two, and Four through Twenty-Two, denied summary judgment without prejudice as to Ground
Three, and appointed Petitioner counsel because there were substantial issues raised by Ground
Three that were not adequately briefed by Respondent or Petitioner, who was at that time
proceeding pro se. (Dkt. No. 28.) The Court, therefore, set a supplementary briefing schedule
and directed the parties to address seven specific issues. (Dkt. No. 30.) The parties have
submitted this supplemental briefing, and the Magistrate Judge now recommends that the Court
grant summary judgment to dismiss the remaining Ground Three. Petitioner filed an objection to
this recommendation. (Dkt. No. 39.)
II.

Legal Standard
A.

Review of R & R

The Magistrate Judge makes a recommendation to the Court that has no presumptive
weight and the responsibility to make a final determination remains with the Court. See, e.g.,
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 judge.” 28 U.S.C. §
636(b)(1)(C). Where there are specific objections to the R & R, the Court “makes a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” Id. In the absence of objections, the Court reviews the R & R to
“only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72 advisory committee’s note; see also Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983) (“In the absence of objection . . . we do not believe that it requires
any explanation.”).

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B.

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Motion for Summary Judgment

Summary judgment is appropriate if a party “shows that there is no genuine dispute as to
any material fact” and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). In other words, summary judgment should be granted “only when it is clear that there is
no dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts.” Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). “In determining
whether a genuine issue has been raised, the court must construe all inferences and ambiguities
in favor of the nonmoving party.” HealthSouth Rehab. Hosp. v. Am. Nat’l Red Cross, 101 F.3d
1005, 1008 (4th Cir. 1996). The movant has the initial burden of demonstrating that there is no
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant has made this threshold demonstration, to survive summary judgment the respondent
must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324.
Under this standard, “[c]onclusory or speculative allegations do not suffice, nor does a ‘mere
scintilla of evidence’” in support of the non-moving party’s case. Thompson v. Potomac Elec.
Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v. CSX Transp., Inc., 190 F.3d
285, 287 (4th Cir. 1999)).
C.

Federal Habeas Relief Pursuant to 28 U.S.C. § 2254

A state prisoner who challenges matters “adjudicated on the merits in State court” can
obtain federal habeas relief only if he shows that the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court” or “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). When reviewing a state
court’s application of federal law, “a federal habeas court may not issue the writ simply because

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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, 410 (2000). The state court’s application is
unreasonable if it is “objectively unreasonable, not merely wrong.” White v. Woodall, 572 U.S.
415, 419 (2014). Meaning, the state court’s ruling must be “so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
The state court’s determination is presumed correct and the petitioner bears the burden of
rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The state
court’s decision “must be granted a deference and latitude that are not in operation” when the
case is considered on direct review. Harrington, 562 U.S. at 101. This is because habeas corpus
in federal court exists only to “guard against extreme malfunctions in the state criminal justice
systems.” Id. at 102 (citation and internal quotation marks omitted). Accordingly, pursuant to 28
U.S.C. § 2254(d), a federal habeas court must (1) determine what arguments or theories
supported or could have supported the state court’s decision; and then (2) ask whether it is
possible that fairminded jurists could disagree that those arguments or theories are inconsistent
with the holding of a prior decision of the United States Supreme Court. Harrington, 562 U.S. at
102. “If this standard is difficult to meet, that is because it was meant to be.” Id.
Before the petitioner may pursue federal habeas relief to this standard, he must first
exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). The petitioner “must present his
claims to the state’s highest court,” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997)
(abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011)), which
requires the petitioner to have “fairly present[ed] to the state court both the operative facts and

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the controlling legal principles associated with each claim.” Longworth v. Ozmint, 377 F.3d 437,
448 (4th Cir. 2004) (internal quotation marks omitted). A federal habeas court should not review
the merits of claims that would be found to be procedurally defaulted or barred under
independent and adequate state procedural rules. Lawrence v. Banker, 517 F.3d 700, 714 (4th
Cir. 2008). Rather, for a procedurally defaulted claim to be properly considered by the federal
habeas court, the petitioner must “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).
III.

The Critical Factual Issues and the Court’s Seven Questions
Ground Three of Petitioner’s § 2254 petition alleges:
Appellate Counsel was ineffective for failing to file a Petition for Rehearing in the
Court of Appeals thereby depriving the Applicant of his right to seek certiorari in
the Supreme Court of South Carolina.

(Dkt. No. 1-1 at 7.)
A petitioner may demonstrate ineffective assistance of counsel by showing the attorney’s
work was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984).
An attorney’s performance is deficient if it was unreasonable under the circumstances of the case
and the then-prevailing professional norms. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).
To meet the Strickland standard, “an attorney’s performance must be objectively unreasonable.”
Bostick v. Stevenson, 589 F.3d 160, 166 (4th Cir. 2009). Prejudice requires a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. A “reasonable probability” means “a probability
sufficient to undermine confidence in the outcome.” Kimmelman, 477 U.S. at 384. Where a
defendant loses his appeal rights due to counsel failing to consult and inform him of his appellate
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rights, prejudice may be shown by establishing that “but for [counsel’s] failure, he would have
timely appealed.” Bostick, 589 F.3d at 168.
The Strickland test for ineffective assistance of counsel is highly deferential to the
attorney, and the standard for § 2254 relief is itself highly deferential to the state court.
Harrington v. Richter, 562 U.S. 86, 102 (2011). As a result, when the state court adjudicated an
ineffective assistance claim on its merits, the § 2254 district court’s review is “doubly
deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The district court’s focus is “not
whether counsel’s actions were reasonable,” but rather “whether there is any reasonable
argument that [the petitioner’s] counsel satisfied Strickland’s deferential standard.” Harrington,
562 U.S. at 105.
On his direct appeal, Petitioner was represented by M. Celia Robinson, a member of the
South Carolina Commission on Indigent Defense, Division of Appellate Defense, who raised the
following issue on direct appeal: “Did the trial judge err reversibly in refusing to issue the
requested charge on the lesser included offense of Assault and Battery of a High and Aggravated
Nature (ABHAN) indicating that the absence of malice is not a required element for an ABHAN
conviction?” (Dkt. No. 14-1 at 455.) On September 24, 2010, the South Carolina Court of
Appeals affirmed Petitioner’s conviction in a per curiam opinion. (Id. at 489-90.) Ms. Robinson,
although still counsel of record to Petitioner, had left the Commission on Indigent Defense on
September 14, 2010 and was no longer providing any legal representation to Petitioner. In clear
violation of South Carolina Appellate Court Rule 264, she had not provided Petitioner notice of
her withdrawal, petitioned the South Carolina Court of Appeals to withdraw, obtained an order
from the Court of Appeals to withdraw, or provided notice of her withdrawal to the opposing
party.

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Following the issuance of the adverse decision by the South Carolina Court of Appeals,
no attorney advised Petitioner of the decision, nor informed him of his right to seek further
review via a petition for rehearing before the South Carolina Court of Appeals or a petition for
certiorari before the South Carolina Supreme Court. Further, no attorney advised Petitioner that
if he failed to timely seek further relief, his right to pursue a state court appeal would end.
Respondent contends that the Chief Appellate Defender, Robert Dudek, assumed
responsibility for all of Ms. Robinson’s pending cases upon her departure from the office.
However, Mr. Dudek had no recollection of reviewing the adverse decision of the South Carolina
Court of Appeals, nor of assessing whether a petition for further relief should be sought, nor is
there any record evidence that he performed any legal services on Petitioner’s behalf during the
period from the issuance of the adverse decision on September 24, 2010 until the filing of the
remittitur on October 18, 2010. (Dkt. No. 14-2 at 57-58, 71.) What is undisputed is that neither
Mr. Dudek nor any other attorney moved to be substituted as Petitioner’s counsel upon Ms.
Robinson’s departure and that no attorney advised Petitioner of the adverse decision of the Court
of Appeals or of his right to seek further appellate review. Ms. Robinson testified at the state
PCR hearing that had she still been representing Petitioner when the decision was entered, she
would have petitioned for rehearing and certiorari. (Id. at 81.) Mr. Dudek testified at the same
hearing that he disagreed with the South Carolina Court of Appeals decision. (Id. at 60-61.)
In his PCR action, Petitioner raised whether “Appellate Counsel was ineffective for
failing to file a Petition for Rehearing in the Court of Appeals, thereby depriving the Applicant
of his right to seek certiorari in the Supreme Court of South Carolina.” (Dkt. No. 14-2 at 335.)
This ground asserts a claim for ineffective assistance of appellate counsel from the time of the
adverse decision of the South Carolina Court of Appeals on September 24, 2010 until the

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issuance of the remittitur on October 18, 2010. The PCR court denied the claim, reasoning that
because criminal appellate counsel has no duty to pursue rehearing or certiorari and a petitioner
has no constitutional right to effective assistance of counsel when seeking discretionary appellate
review, Petitioner could not demonstrate deficiency and prejudice. (Dkt. No. 14-2 at 338.) The
PCR court did not address the issue of whether appellate counsel’s performance was ineffective
in the immediate post-decision period when the appeal remained before the Court of Appeals and
Petitioner was given no notice of the adverse decision or of his right to seek further appellate
review.
On September 28, 2010—four days after the South Carolina Court of Appeals adverse
decision—Petitioner was sent a letter on the letterhead of the South Carolina Commission on
Indigent Defense, purportedly signed by Ms. Robinson, stating that the South Carolina Court of
Appeals had denied his petition for certiorari and granted a petition for counsel to be relieved.
The letter further stated that Petitioner had now exhausted his state court remedies. There is no
dispute that Ms. Robinson’s signature was a forgery and that the letter was sent by a paralegal
without any supervision or knowledge of a licensed attorney. (Dkt. No. 14-2 at 80-81.) Further,
there is no dispute that this letter contained multiple false statements, including that (1) a petition
for certiorari had been submitted, (2) an order had been issued denying certiorari review, (3) an
order had been issued relieving Ms. Robinson as counsel, and (4) Petitioner’s right to seek
further state court review had been exhausted.1

1

The September 28, 2010 letter on the letterhead of the South Carolina Commission on Indigent
Defense and purportedly hand signed by Ms. Robinson, states, inter alia: “Enclosed is a copy of
the Order of the Court of Appeal’s [sic] denying our Petition for Writ of Certiorari, and granting
the petition to be relieved. This means that you have now exhausted your state court remedies.”
Petitioner was then advised of the one year statute of limitations regarding any petition for
habeas corpus in federal court. (Dkt. 14-2 at 253).
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Now, to determine whether Ground Three of this § 2254 should be dismissed on
summary judgment, the Court directed the parties to address seven specific questions (Dkt. No.
30), to which Respondent and Petitioner answered (Dkt. Nos. 31, 32, 34).2 The Court reviews
the answers, and provides its own assessment of them, in turn:
A.

Did an attorney acting on behalf of Petitioner review the decision of the South Carolina
Court of Appeals of September 24, 2010 and make a determination whether a petition for
rehearing should be filed? If the answer is in the affirmative, identify that attorney.
Petitioner:

No.

Respondent: Respondent’s answer is unclear, instead offering that (1) Dudek
“reviewed the judicial opinions on [Robinson’s] cases as they were received” and
(2) “[d]espite conflicting evidence, it appears that Dudek made the decision not to
seek certiorari in petitioner’s case.”
Analysis:
There is no record evidence that any attorney reviewed the adverse
decision of the South Carolina Court of Appeals or made any determination
whether a petition for rehearing should be filed. Respondent’s claim that Mr.
Dudek may have conducted such a review is inconsistent with his testimony that
he had no recollection of conducting such a determination and regretted that no
petition for rehearing had been filed. (Dkt. No. 14-2 at 58.)
B.

Did an attorney acting on behalf of Petitioner consult with him regarding whether a
petition for rehearing should be filed following the decision of the South Carolina Court
of Appeals on September 24, 2010? If the answer is in the affirmative, identify that
attorney.
Petitioner:

No.

Respondent: No. (“[I]t appears no attorney personally consulted with petitioner
after the Court of Appeals issued its opinion.”)
Analysis:
There is no dispute of material fact: no attorney acting on behalf of
Petitioner consulted with him regarding petitioning for rehearing.

2

Petitioner answered each question squarely and directly in a clear format, by listing each
question and stating yes or no with supporting reasoning. Respondent, by contrast, twice
provided a block narrative answer containing argument that does not squarely answer each
question asked.
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C.

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Were the decisions whether to file a request for rehearing and a petition for certiorari
following the decision of the South Carolina Court of Appeals of September 24, 2010
critical stages of the criminal proceedings?
Petitioner:
Yes [both decisions are critical]. A critical stage is “any stage of
the prosecution, formal or informal, in court or out, where counsel’s absence
might derogate from the accused’s right to a fair trial.” United States v. Wade, 388
U.S. 218 (1967). Here, a determinative opinion was issued that could have been
reheard or petitioned, which means it was a critical stage of the proceedings. But
Robinson had already absented herself at that time, thereby causing prejudice.
Respondent: No. If an individual does not have a constitutional right to counsel
at a certain stage of the proceedings, then he cannot claim ineffective assistance of
counsel during that stage, and therefore the stage is not critical.
Analysis:
There is a dispute regarding whether the period following the
adverse decision of the Court of Appeals on September 24, 2010 until the
issuance of the remittitur on October 18, 2010, while Petitioner’s appeal was still
pending before the Court of Appeals on direct appeal, constituted a critical stage
of the direct appeal proceedings.

D.

If no attorney acting on behalf of the Petitioner (i) reviewed the decision of the South
Caroline Court of Appeals, (ii) made the decision whether a request for rehearing should
be made, or (iii) consulted with Petitioner regarding his right to seek rehearing due to an
attorney assignment error within the offices of his court appointed appellate-counsel,
would such failures, individually or collectively, constitute the actual or constructive
denial of appellate counsel and/or constitute ineffective assistance of counsel?
Petitioner:
Yes. Prejudice is presumed when the defendant is completely
denied counsel “at a critical stage of his trial.” United States v. Cronic, 466 U.S.
648, 659 (1984). Petitioner had no legal representation when the opinion was
issued and could have been reheard or petitioned, because Robinson had left her
job and Dudek, even if he were considered Petitioner’s counsel, did not inform
him of Robinson’s resignation or review the opinion. “Based on Fourth Circuit
precedent, the failure of an attorney to inform his client of the right to file a
petition for writ of certiorari and to file a petition if requested by his client
constitutes ineffective assistance of counsel under both prongs of Strickland.”
Moton v. United States, 2016 WL 1732736, at *3 (E.D. Va. Apr. 28, 2016) (citing
United States v. King, 11 Fed.Appx. 219, 221 (4th Cir. 2001)).
Respondent: Respondent’s answer is unclear, instead noting that “the decision
to seek additional review is a matter of professional judgment” and “in deciding
whether to seek further review, the attorney must assess if there is a reasonable
chance of certiorari being granted.”

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Analysis:
The parties dispute whether these failures by counsel, individually
or collectively, constitute actual or constructive denial of appellate counsel and/or
constitute ineffective assistance of counsel.
E.

If the Court were to determine that Petitioner was actually or constructively denied
counsel at a critical stage of the criminal proceeding, would prejudice be presumed
without the necessity of Petitioner showing actual prejudice or a likelihood of prevailing
on appeal?
Petitioner:
Yes, prejudice would be presumed under United States v. Cronic
and related caselaw. But Petitioner could also show actual prejudice or a
likelihood of prevailing on appeal because, (1) to the extent he had any
representation at the time, failure to inform him of his right to file a petition or
writ of certiorari constitutes ineffective assistance under King and related caselaw;
and (2) in light of record evidence that Robinson would have sought rehearing
and a rehearing cannot otherwise be sought pro se.
Respondent: No, prejudice would not be presumed because “appellate counsel
subjected the State’s case to meaningful and adversarial testing” but it was
affirmed. And, Petitioner cannot demonstrate actual prejudice or a likelihood of
prevailing on appeal because “it is entirely speculative to conclude [the Court of
Appeals] opinion would have been reversed” because the Court of Appeals
affirmed.
Analysis:
There is a dispute regarding whether prejudice can be presumed if
Petitioner was actually or constructively denied counsel at a critical state of the
proceeding. There is also a dispute whether Petitioner could otherwise show
actual prejudice or a likelihood of prevailing on the merits.

F.

The letter sent to Petitioner of September 28, 2010 (Dkt. No. 14-2 at 253) states that
Petitioner’s Writ of Certiorari had been denied, the court had granted his attorney her
petition to be relieved, and Petitioner had exhausted his state court remedies. Does that
communication meet professional standards of competence and reasonableness? Was
that communication sent by an attorney acting on behalf of the Petitioner?
Petitioner:
No, the letter does not meet professional standards of competence
and reasonableness. No, the letter was not sent by an attorney acting on behalf of
Petitioner; it was prepared by a paralegal and signed in Robinson’s name despite
the fact that Robinson had already resigned.
Respondent: No, the letter “likely does not meet professional standards.” No, it
was not sent by an attorney acting on Petitioner’s behalf. Instead, it was drafted
by a paralegal, using the wrong form, advising that the Court of Appeals had
denied a writ of certiorari to review a denial of post-conviction relief, and signed
on Robinson’s behalf by the paralegal.

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Analysis:
There is no dispute of material fact that the letter does not meet
professional standards and was not sent by a lawyer acting on Petitioner’s behalf.
G.

If the Court were to determine that Petitioner was denied his right to counsel at a critical
stage of the criminal proceeding and that he has per se suffered prejudice as a result, what
would be the appropriate remedy? Would reinstating Petitioner’s right to seek rehearing
to the South Carolina Court of Appeals and, if necessary, to petition for certiorari,
provide him his appropriate constitutional remedy?
Petitioner:
“Reinstating Folkes’ right to seek rehearing is an appropriate
remedy. The Court of Appeals issued its remittitur in Folkes’ direct appeal on
October 18, 2020. (ECF Entry 14-1 p. 491). Accordingly, at this time the Court
of Appeals only has the jurisdiction to entertain a motion to recall remittitur. See
Wise v. SCDOC, 642 S.E.2d 551 (S.C. 2007). Using the relief awarded in Bostick
v. Stevenson, 589 F.3d 160 (4th Cir. 2009) and Galloway v. Stephenson, 510 F.
Supp. 840, 845 (M.D.N.C. 1981) as a guide, a possible order granting a writ of
habeas corpus would order Folkes’ judgment and conviction be vacated and he be
released from custody, unless within 60 days of the District Court’s order the
Court of Appeals (1) recalls its remittitur in State v. Folks, 2008-096806, and (2)
entertains Folks’ petition for rehearing. This relief is also consistent with Fourth
Circuit decisions finding in adequacy of appellate counsel after an opinion was
issued. See King, Moton.”
Respondent: “The Court of Appeals likely does not have jurisdiction to consider
any matter relating to this case, even a motion to recall the remittitur. See Wise v.
SCDC, 642 S.E.2d 551 (S.C. 2007). . . . Because the Court of Appeals did not
issue its remittitur by mistake, it could foreseeably decline to recall the remittitur
based on a lack of jurisdiction. But there are other avenues of appellate relief
available.” (Dkt. No. 33 at 6). Respondent referenced South Carolina Appellate
Court Rule 245(a) and the Fourth Circuit’s decision in Bostick v. Stevenson, 589
F.3d 160, 168 (4th Cir. 2009) where a habeas petition was granted because
defense counsel failed to consult with his client regarding his right to appeal. The
South Carolina Supreme Court subsequently granted the appeal and overturned
the defendant’s murder conviction in State v. Bostick, 708 S.E .2d 774 (S.C.
2011). (Id. at 6-7).
Analysis:
The parties dispute whether the Court of Appeals would have
jurisdiction, but do not dispute that an avenue of South Carolina court appellate
relief is available.

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IV.

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Discussion
A.

Was appellate counsel’s performance following the issuance of the decision
of the South Carolina Court of Appeals on September 24, 2010 and before
the Court of Appeals entered the remittitur on October 18, 2010 “objectively
unreasonable?”

The Court must first address whether Petitioner had any functioning counsel during the
period from the Court of Appeals’ adverse decision issued on September 24, 2010 to the
remittitur issued on October 18, 2010.

The record is clear that Ms. Robinson had left her

position with the Commission on Indigent Defense on September 14, 2010 without seeking and
obtaining permission to withdraw as Petitioner’s counsel, as required by South Carolina
Appellate Court Rule 264. The record is also clear that no substitute counsel had appeared on
Petitioner’s behalf and there is no record evidence that any licensed attorney assumed the duties
of substitute counsel, including the most basic duties of appellate counsel of informing the
Petitioner of the adverse decision, of his right to seek further appellate review, and of the
consequences of failing to do so. Indeed, the record evidence supports finding that after Ms.
Robinson left the Commission on Indigent Defense on September 14, 2010 until the remittitur
was issued on October 18, 2010, that Petitioner’s legal representation was left in the hands of a
non-attorney staff member.
The duty of appellate counsel to advise the client of an adverse decision and his right to
seek further appellate review are mandatory under these circumstances and the failure to do so
constitutes ineffective assistance of counsel. See Bostick, 589 F.3d at 168; Proffitt v. United
States, 549 F. 2d 910, 912 (4th Cir. 1976); United States v. Tajeda-Ramirez, 380 Fed.Appx. 252,
2010 WL 2182187, at *1-2 (4th Cir. 2010); United States v. King, 11 Fed.Appx. 219, 2010 WL
568022, at *1 (4th Cir. 2001). The failure of Petitioner’s appellate counsel to perform these most
basic duties of appellate representation strongly support a finding that Petitioner’s counsel had

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for all practical purposes abandoned him at a critical time in the appellate process before the
South Carolina Court of Appeals.
An analogous factual situation arose in Maples v. Thomas, 565 U.S. 266 (2012), where
two post-conviction counsel for a death row inmate left their law firm without informing their
client or the court of their departure. An adverse state court order was subsequently issued and
the time for appeal expired without any filing of a notice of appeal. The issue before the U.S.
Supreme Court in Maples was whether, under these circumstances, the defendant could show
cause for procedural default. Justice Ginsburg, writing for the Court’s majority, described the
post-conviction attorneys’ actions as “abandonment,” leaving the defendant “unrepresented at a
critical time for his state postconviction petition.”3 Id. at 271. The Court concluded that “no just
system would lay the default at Maples’ death-cell door.” Id.
Moreover, even if this Court were to assume that Petitioner had not been abandoned by
counsel, the performance (or lack thereof) of appellate counsel following the issuance of the
adverse Court of Appeals decision on September 24, 2010 and before the issuance of the
remittitur on October 18, 2010 was objectively unreasonable. The failure to advise Defendant of
the adverse decision and of his right to seek further review under these circumstances falls far
short of competent representation.
Additionally, the Court can not let pass without further comment regarding the gravity of
the extraordinarily unprofessional and illegal conduct associated with the letter to Petitioner of

3

The Court emphasized, “Maples maintains that there is [cause to excuse the default], for the
lawyers he believed to be vigilantly representing him had abandoned the case without leave of
court, without informing Maples they could no longer represent him, and without securing any
recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left
unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any
need to protect himself pro se. In these circumstances, no just system would lay the default at
Maples’s death-cell door.”
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September 28, 2010 on the letterhead of the Commission on Indigent Defense. The letter
contained a forged signature of counsel, was prepared and delivered by a non-attorney staff
member of the Commission engaged in the unauthorized practice of law, and inaccurately
informed Petitioner that his still active state court appellate rights had expired. The letter also
falsely represented that the Court of Appeals had issued an order denying a petition of certiorari
and an order relieving counsel of further representation. The September 28, 2010 letter provides
an additional and independent basis for a finding that Petitioner was denied effective assistance
of counsel.4
B.

Did Petitioner suffer prejudice as a result of the ineffective assistance of
assistance of counsel following the adverse decision of the South Carolina
Court of Appeals on September 24, 2010 and the issuance of the
remittitur on October 18, 2010?

Where a defendant was denied effective assistance of counsel by being informed of
neither an adverse appellate court decision nor his right to seek further appellate review, he may
demonstrate prejudice by showing that “but for [counsel’s] failure, he would have timely
appealed.” Bostick, 589 F.3d at 168. All the record evidence supports the conclusion that had
Petitioner received timely notice of the adverse decision of the Court of Appeals and of his right
to seek further appellate review, he would have pursed an appeal. First, Ms. Robinson testified
that had she still been Petitioner’s counsel she would have filed a petition for rehearing and for
certiorari, and Mr. Dudek testified he wished a rehearing and certiorari had been pursued.

4

Respondent dismisses the September 28, 2010 letter as simply an oversight by a paralegal who
used the wrong form letter. (Dkt. No. 31 at 3.) The Court finds this a far too benign
interpretation of a seriously unprofessional act of professional conduct undertaken under the
letterhead of the Commission on Indigent Defense. Ms. Robinson testified at the PCR hearing
that the letter was prepared and signed by a paralegal without her knowledge or consent. (Dkt.
No. 14-2 at 81.) Nonetheless, Ms. Robinson’s forged signature was placed on correspondence to
Petitioner. Mr. Dudek acknowledged that no attorney had assumed responsibility for Petitioner’s
case at the time the letter was sent and he had no recollection of seeing the letter. (Id. at 58.)
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Second, Petitioner has diligently pursued his habeas petition, initially pro se, attempting to raise,
among other things, a number of issues he had raised unsuccessfully in his direct appeal. Third,
having been sentenced to life without a possibility of parole, it seems implausible that Petitioner
would have not wished to pursue every appellate avenue. Petitioner has clearly established
prejudice under these facts.
C.

Was Petitioner denied counsel at the stage of his appellate proceedings
in which he had a constitutional right to counsel?

The PCR court and Respondent have attempted to posit this case as only raising the
question of whether Petitioner had a constitutional right to have his counsel file a petition for
rehearing to the South Carolina Court of Appeals and for certiorari to the South Carolina
Supreme Court. If this were the sole issue before the Court, the PCR court and Respondent
would be correct. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (no right to counsel for
discretionary appellate review). What the PCR court did not address, and Respondent seeks to
avoid, are the duties of appellate counsel during the period post an adverse decision while the
appeal is still pending on direct appeal before the appellate court. During this critical period in
state court appellate practice—in this case from the issuance of the adverse decision on
September 24, 2010 until the filing of the remittitur on October 18, 2010—appellate counsel had
the duty to advise the client of the adverse decision and of his right to seek further appellate
review. If appointed counsel was unable or unwilling to pursue further appellate review on
Petitioner’s behalf, Petitioner retained the right to pursue his appeal pro se, just as he initially did
in the filing of his habeas petition.
The Court recognizes that there has been considerable debate among federal courts
regarding what actions of appellate counsel fall within the proceedings of direct state court
review, where the defendant enjoys the right to competent appointed counsel. These cases often

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turn on the specific facts of each case. The Court finds persuasive the Sixth Circuit’s wellreasoned decision in Smith v. State of Ohio Department of Rehabilitation and Corrections,
holding that appellate counsel’s failure to inform the defendant of the adverse decision on his
direct appeal was an integral part of counsel’s representation at the direct appeal stage. 463 F.3d
426, 432-33 (6th Cir. 2006) (“The court’s ultimate decision regarding a particular legal
proceeding is part of that legal proceeding, and appointed counsel’s duties in representing a
client during that legal proceeding include the duty of informing her client of the outcome of the
proceeding.”) (emphasis in original).5 See also Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000)
(noting that Constitution requires “that counsel make objectively reasonable choices” and must
do so not only during the legal proceeding for which counsel represents the client, but also after
the judicial proceeding has concluded in determining whether an appeal should be filed);
Strickland, 466 U.S. at 688 (“From counsel’s function as assistant to the defendant derive the
overarching duty to advocate the defendant’s cause and the more particular duties to consult with
the defendant on important decisions and to keep the defendant informed of important
developments in the course of the prosecution.”); Jones v. Barnes, 463 U.S. 745, 751 (1983)
(because defendant’s decision regarding whether to “take an appeal” is a “fundamental decision”
that “the accused has the ultimate authority to make,” it follows that counsel has duty to timely
inform accused of proceeding’s resolution); Paris v. Turner, 187 F.3d 637 (Table), 1999 WL
357815, at *2-3 (6th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (where counsel delays
informing defendant of decision on first appeal of right and “fails to communicate to his client
5

The facts of Smith bear important resemblance to those here. As that court emphasized: “The
only way that Smith could have learned of the unpublished decision of the Ohio Court of
Appeals affirming his conviction was if his counsel notified him. When she failed to do so,
Smith was without any means of notice of the decision and thus did not and could not know that
the forty-five day deadline for filing a notice of appeal to the Ohio Supreme Court had started to
run.” Id. at 434.
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how to proceed with further appeals,” it cannot “fairly be said that [defendant] truly had his first
appeal of right”).
The Court finds that the failure of appellate counsel to timely advise Petitioner of the
adverse decision of the Court of Appeals on his direct appeal and of his right to seek further
appellate review was integral to their duties in representing Petitioner at the direct appeal stage.
Consequently, the failure of appellate counsel to perform in an objectively reasonable way at the
state court direct appeal stage entitles Petitioner to habeas relief. Moreover, the delivery of the
September 28, 2010 letter to Petitioner on the letterhead of the Commission on Indigent Defense
with the forged signature of departed counsel, Ms. Robinson, inaccurately informing Petitioner
that his state court appellate rights had been exhausted, was also integral to appellate counsel’s
representation at the direct appeal stage and provides an additional and independent basis for
habeas relief.
V.

Remedy
Having found that Petitioner was denied effective assistance of counsel at a critical time

in his direct state court appeal proceedings and suffered prejudice as a result, the Court must now
fashion an appropriate remedy. It is worthwhile to note that Petitioner’s requested remedy is
rather modest: the reinstatement of his right to seek discretionary state court appellate review of
the adverse decision of the Court of Appeals in his direct appeal.
Respondent suggests as a model for a remedy the Fourth Circuit’s decision in Bostick v.
Stevenson, which involved defense counsel’s failure to consult with his client regarding his right
to pursue a direct appeal. (Dkt. No. 33 at 6-7.) In Bostick, the Fourth Circuit instructed the
district court on remand to “issue a writ of habeas corpus and that it order Bostick released from
prison unless the state grants him a direct appeal within a reasonable time.” 589 F.3d at 168. The

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district court thereafter issued an order on January 25, 2010 granting the petition for habeas
corpus and directed that “the State of South Carolina shall grant Mr. Bostick direct appeal no
later than May 1, 2010 or he shall be released from prison pursuant to the Fourth Circuit
mandate.” Bostic v. Warden of Broad River Correctional Institute, C.A. No. 8:07-727, 2010 WL
360514 (D.S.C. 2010). The South Carolina Supreme Court subsequently allowed Bostick to file
a belated appeal and reversed his murder conviction. State v. Bostick, 708 S.E. 2d 774 (S.C.
2011).
Petitioner urges the Court to grant a slightly different remedy, by directing the South
Carolina Court of Appeals to recall its remittitur and to entertain a petition for rehearing. (Dkt.
No. 32 at 7-8.) Respondent argues that this proposed remedy would be technically defective
because the South Carolina Court of Appeals has no authority under these facts to recall its
remittitur. Respondent suggests that the better course is for this Court to follow the Bostick
model, ordering the State of South Carolina to reinstate Petitioner’s appeal rights or release him
from prison. (Dkt. No. 33 at 6.)
After carefully considering the appropriate remedy under these highly unusual facts, the
Court hereby GRANTS Petitioner’s habeas petition as to Ground 3 (Dkt. No. 1-1) and
ORDERS that Petitioner be released from prison on or before May 1, 2021 unless the State of
South Carolina before then reinstates his right to discretionary appellate review of the September
24, 2010 decision of the South Carolina Court of Appeals denying his direct appeal.6

6

The Court’s remedy is fashioned to restore Petitioner’s right to seek discretionary review of
the South Carolina Court of Appeals adverse decision of September 24, 2010. The Court will
leave to the South Carolina Supreme Court whether it will simply allow Petitioner to petition for
certiorari review before it or remand the matter to the South Carolina Court of Appeals with
instructions that the remittitur be recalled and discretionary review of a petition for rehearing be
granted. Should the Court of Appeals recall its remittitur and then deny a petition for rehearing,
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AND IT IS SO ORDERED.

s/ Richard Mark Gergel
Richard Mark Gergel
United States District Judge
January 7, 2021
Charleston, South Carolina

Petitioner shall be entitled to seek certiorari review, before the South Carolina Supreme Court, of
the adverse decision of the Court of Appeals on his direct appeal.
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