Johnson v. McFadden
ORDER RULING ON REPORT AND RECOMMENDATION: The court ADOPTS the findings of the Magistrate Judge's Report and Recommendation (ECF No. 119 ), GRANTS Respondent's Motion for Summary Judgment (ECF No. 103 ), and DISMISSES Petitioner's habeas corpus petition (ECF No. 1 . IT IS SO ORDERED. Signed by Honorable J Michelle Childs on 3/22/2016. (mcot, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Warden John Pate,
Civil Action No. 5:13-cv-02038-JMC
Petitioner brought this action seeking relief pursuant to 28 U.S.C. § 2254. This matter is
before the court for review of the Magistrate Judge’s Report and Recommendation (“Report”)
(ECF No. 119) recommending that Respondent’s Motion for Summary Judgment (ECF No. 103)
be granted. For the reasons set forth below, the court ADOPTS the findings of the Magistrate
Judge’s Report (ECF No. 119), GRANTS Respondent’s Motion for Summary Judgment (ECF
No. 103), and DISMISSES Petitioner’s habeas corpus petition (ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the Report’s factual and
procedural summation is accurate and includes relevant portions here:
Petitioner is currently incarcerated in the Ridgeland Correctional Institution of the
South Carolina Department of Corrections (“SCDC”). In August 2011, Petitioner
was indicted by a Greenville County Grand Jury for trafficking heroin (2011-GS23-0544) and possession with intent to distribute (PWID) methamphetamine (2011GS-23-0545). On April 9, 2012, Petitioner pleaded guilty pursuant to Alford v.
North Carolina, 400 U.S. 25, 91 S. Ct. 160 (1970), to the offenses before the
Honorable Letitia H. Verdin. During his plea, Christopher T. Posey, Esquire,
represented Petitioner, and Assistant Solicitor Judy M. Munson appeared on behalf
of the State. Petitioner was sentenced to 15 years for each charge, and the sentences
were ordered to run concurrently.
(ECF No. 119 at 1–2 (citations omitted).) Petitioner did not directly appeal his guilty plea or
sentence, but he did file a Post-Conviction Relief (“PCR”) application, which the PCR Court
denied in full. (See ECF No. 1 at 2; ECF No. 76-1 at 135–42; see generally ECF No. 76-1.)
Petitioner then filed his federal habeas petition on fourteen (14) separate grounds, (see ECF No.
1), to which Respondent filed a Motion for Summary Judgment (ECF No. 103).
The Magistrate Judge recommended that Defendants’ Motion for Summary Judgment be
granted. (ECF No. 119.) Plaintiff filed an Objection to the Report. (ECF No. 121.) Petitioner
also filed a Motion for Abeyance (ECF No. 124), which this court denied. (ECF No. 125.)
A. The Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to this court that has no presumptive
weight—the responsibility to make a final determination remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270–71 (1976). The court reviews de novo only those portions of a
Magistrate Judge’s Report to which specific objections are filed, and it reviews those portions not
objected to—including those portions to which only “general and conclusory” objections have
been made—for clear error. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982). The court may accept, reject, or modify—in whole or in part—the Magistrate
Judge’s recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Summary judgment should be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is “material” if proof of its existence or non-existence would affect the disposition
of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49
(1986). A genuine question of material fact exists where, after reviewing the record as a whole,
the court finds that a reasonable jury could return a verdict for the non-moving party. Newport
News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123–
24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with
mere allegations or denials of the movant’s pleading, but instead must “set forth specific facts”
demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Shealy v.
Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). All that is required is that “sufficient evidence
supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’
differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation
. . . is not enough to defeat a summary judgment motion.” Ennis v. Nat’l Ass’n of Bus. & Educ.
Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
Relief under 28 U.S.C. § 2254
The Antiterrorism and Effective Death Penalty Act of 1996, as codified in 28 U.S.C. §
2254, governs Petitioner’s federal habeas claims. Petitioners seeking relief pursuant to § 2254
usually must exhaust all available state court remedies before seeking relief in federal court. §
2254(b). Federal courts may not thereafter grant habeas corpus relief unless the underlying state
adjudication comports with § 2254(d), which provides:
[a]n 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 with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—(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.
§ 2254(d) (emphasis added).
A state court’s decision is contrary to clearly established federal law when it “applies a rule
that contradicts the governing law set forth” by the United States Supreme Court or confronts facts
essentially indistinguishable from a prior Supreme Court decision and “nevertheless arrives at a
result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405–06
(2000). In contrast, a state court’s decision involves an “unreasonable application” of “clearly
established” federal law 1) “if the state court identifies the correct governing legal rule from this
[Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s
case” or 2) “if the state court either unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Id. at 407.
In line with Williams, the Fourth Circuit has noted that an “unreasonable application” is
not necessarily an “incorrect application” of federal law, explaining that “an incorrect application
of federal law is not, in all instances, objectively unreasonable.” Humphries v. Ozmint, 397 F.3d
206, 216 (4th Cir. 2005) (citing Williams, 529 U.S. at 413). Thus, to grant a habeas petition, a
federal court must determine that the state courts’ adjudication of a petitioner’s claims was “not
only incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719 (4th
In making this determination, a federal court’s habeas review focuses on the state court
decision that already addressed the claims, not “the petitioner’s free-standing claims themselves.”
McLee v. Angelone, 967 F. Supp. 152, 156 (E.D. Va. 1997), appeal dismissed, 139 F.3d 891 (4th
Cir. 1998). And a Petitioner who brings a habeas petition in federal court must rebut facts relied
upon by the state court with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Cagle v.
Branker, 520 F.3d 320, 324 (4th Cir. 2008) (“[F]or a federal habeas court to overturn a state court’s
credibility judgments, the state court’s error must be stark and clear.” (citing 28 U.S.C. §
A. The Court’s Review of Petitioner’s Objections
In her Report, the Magistrate Judge determined as to Petitioner’s habeas petition: 1
1) that Grounds One, Two, Three, Four, Five, Six, and Twelve, comprising Petitioner’s
ineffective assistance of counsel claims, should be dismissed on the merits based on
the Petitioner’s inability to demonstrate that the PCR court unreasonably misapplied
federal law, (ECF No. 119 at 26–27);
This court recites the Magistrate Judge’s summary of Petitioner’s numerous habeas petition
grounds: “In Ground One, Petitioner maintains that deputies entered the hotel room without a valid
search or arrest warrant. In Ground Two, Petitioner maintains that an illegal search and seizure
was made, and police discussed ways to ‘stage’ the room to make it appear that evidence was in
plain view. In Ground Three, Petitioner maintains that the arresting officers committed perjury and
created a false scenario that was presented to procure a search warrant from a judge. In Ground
Four, Petitioner maintains that officers attempted to create ‘exigent’ circumstances that they
falsified in affidavits and police reports. In Ground Five, Petitioner argues that fraud was
committed when fabricated testimony was presented to a magistrate in order to procure a search
warrant after Petitioner had already been unlawfully detained. Additionally, Petitioner alleges that
[the Solicitor] used and presented false testimony during his sentencing. In Ground Six, Petitioner
maintains that there was a conspiracy to create and present, false evidence between multiple
members of the Greenville County Sheriff’s Office. In Grounds Seven and Eight, Plaintiff
maintains he was falsely arrested and unlawfully imprisoned. In Ground Nine, Petitioner maintains
that he was coerced into implicating himself even though he had invoked his right to remain silent.
In Ground Ten, Petitioner alleges he was selectively and maliciously prosecuted in spite of ample
evidence in existence that demonstrated [Petitioner’s “co-arrestee”] was an actual conspirator.
Petitioner maintains that official misconduct occurred in Ground Eleven. In Ground Twelve,
Petitioner alleges that evidence tampering occurred because drug paraphernalia was not in plain
view and the officers were not in ‘hot pursuit.’ Finally, in Ground Fourteen, Petitioner alleges
actual innocence.” (ECF No. 119 at 19–20 (citations omitted).)
2) that Grounds Seven, Eight, Nine, Eleven, and Fourteen are procedurally barred from
habeas review, (id. at 20);
3) that Ground Ten alleging that Petitioner was selectively prosecuted should be dismissed
on the merits, (id. at 28–30); and
4) that the portion of Ground Thirteen that is devoted to Petitioner’s first trial counsel is
procedurally barred, (id. at 20) and the portion that alleges that Petitioner was prevented
from reading his entire prepared statement should be dismissed on the merits, (id. at
In response, Petitioner makes several objections. First, instead of a specific objection to
any discussion of the Magistrate Judge’s Report, Petitioner reasserts the same claims he already
presented in his Motion for Abeyance (ECF No. 124) before this court that the plea counsel
committed perjury during the original PCR state hearing. (ECF No. 121 at 1–6.) This court, in its
Order denying that motion, stated:
In order for this court to grant the requested relief, this court must determine that
there was good cause for petitioner’s failure to previously raise the claim or exhaust
his remedies in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005).
Furthermore, even where good cause exists, the newly asserted claim must also be
meritorious. Id. The United States Court of Appeals for the Fourth Circuit has
previously held that fraud on the court is a narrowly construed doctrine, and is not
found even where there has been perjury by a witness or the fabrication of evidence.
See Fox ex. Rel. Fox v. Elk Run Coal Co., Inc., 793 F.3d 131, 136 (4th Cir. 2014).
Here, Petitioner’s fraud on the court claim is based on the assertion that his former
plea counsel committed perjury when called as a witness during Petitioner’s postconviction hearing in state court. The Fourth Circuit has held that even perjury by
a witness does not support a fraud on the court claim. Thus, even if Petitioner could
demonstrate good cause for failing to present this claim and associated evidence
previously, his claim is not meritorious.
(ECF No. 125). Upon review of Petitioner’s objections, this court concludes the same with regards
to his perjury claim here and finds that the\ objections are without merit.
Petitioner secondly explains that he objects to the Magistrate Judge’s “conclusion(s)
regarding his allocution and the part his plea counsel played in its truncation, which possibly
violated the petitioner’s rights under the Sixth and Fourteenth Amendments.” (ECF No. 121 at 6–
7.) 2 Petitioner specifically contends that the Magistrate Judge “in the same fashion as the PCR
Court, has improperly concluded that the sentencing judge had, in her position, at any point, a copy
of Petitioner’s allocution statement prior to handing down her sentence” because, presumably,
“the sole copy of the allocution statement was [Petitioner]’s rough draft.” (Id. at 9–10 (emphasis
in original).) Petitioner repeats his allegation that his plea counsel’s “role in promoting the
truncation of [his] allocution; [the plea counsel’s] failure to protest it; and his failure to specifically
advise the petitioner of his right to appeal the court’s truncation all represent deficient performance
below professional norms which prejudiced [him].” (Id.)
In her Report, the Magistrate Judge referenced the state PCR court’s explanation for how
Petitioner’s claim failed to overcome the standard for proving ineffective assistance of counsel, 3
and, moreover, the PCR court’s conclusion that plea court errors are not cognizable in PCR
proceedings. (ECF No. 119 at 28 (citations omitted).) The Magistrate Judge concluded the same
as to Petitioner’s ineffective assistance of counsel claim and found that under the standards of
Petitioner pleaded guilty and began reciting his prepared statement for the plea judge. (ECF No.
76-1 at 14.) During this recitation, the plea judge stated: “This is probably the stuff we can kind
of pare down a little bit there.” (Id. at 23.) Petitioner continued making his statement and
expressed that he would hand up the entire statement to the plea judge “afterwards.” (Id.) When
the plea hearing concluded, the plea judge accepted Petitioner’s plea as “being freely and
voluntarily made with the advice of extremely competent counsel with whom you say you are well
satisfied. . . .” (Id. at 33.)
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court held that to establish
ineffective assistance of counsel, a petitioner must show deficient performance and resulting
prejudice. Counsel renders ineffective assistance when his performance “[falls] below an objective
standard of reasonableness,” but there is a “strong presumption” that counsel’s performance was
professionally reasonable. Id. at 688–89.
AEDPA, Petitioner could not demonstrate “that the PCR court unreasonably misapplied clearly
established federal law in rejecting this claim, or that the PCR court made objectively unreasonable
factual findings.” (Id.) Based on this court’s review of the record and Petitioner’s Objection, this
court must conclude the same. See Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005);
McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004) (noting that to grant a habeas petition, a federal
court must determine that the state courts’ adjudication of a petitioner’s claims was “not only
incorrect, but that it was objectively unreasonable”); see also Cagle v. Branker, 520 F.3d 320, 324
(4th Cir. 2008) (“[F]or a federal habeas court to overturn a state court’s credibility judgments, the
state court’s error must be stark and clear.” (citing 28 U.S.C. § 2254(e)(1)(2012))).
As another ground for his objection, Petitioner introduces another ineffective assistance of
counsel claim, which does not appear to be directly connected to any portion of the Magistrate
Judge’s Report. As evidence for that claim, he argues that “at every stage of [his] case, plea
counsel failed to advise [him] of his right to appeal(s) and/or collateral attack(s).” (ECF No. 121
at 10–11.) Petitioner contends that what resulted “was a PCR application consisting almost
entirely of meritorious Fourth Amendment claims that were not cognizable on collateral attack.”
(Id. at 11.) He argues, for example, that “nearly every claim in his original PCR application, would
reveal that the Petitioner obviously wanted the benefit of an appellate court.” (Id. at 12.) To the
extent that Petitioner attempts to make a general ineffective assistance of counsel claim, his
objections fail, as he does not provide sufficient evidence to fulfill the standard under Strickland
v. Washington for successfully making out such a claim. See 466 U.S. 668, 688–89 (1984)
(holding that to establish ineffective assistance of counsel, a petitioner must show deficient
performance and resulting prejudice and that counsel renders ineffective assistance when his
performance “[falls] below an objective standard of reasonableness,” but there is a “strong
presumption” that counsel’s performance was professionally reasonable).
Finally, Petitioner reargues—again, not in response to any specific portion of the Report—
an ineffective assistance of counsel claim regarding his plea counsel’s “misrepresentation” of his
parole eligibility. (ECF No. 121 at 12.) The PCR Court found that Petitioner had “failed to meet
his burden of proving plea counsel misadvised him about parole eligibility.” (ECF No. 76-1 at
140.) Based on this court’s review of the record and Petitioner’s Objection as to this issue, this
court must conclude that Petitioner’s ineffective assistance of counsel claim fails. He cannot
demonstrate, as AEDPA requires, that the PCR court unreasonably misapplied clearly established
federal law in rejecting this claim, or that the PCR court made objectively unreasonable factual
findings. See Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005); McHone v. Polk, 392 F.3d
691, 719 (4th Cir. 2004) (noting that to grant a habeas petition, a federal court must determine that
the state courts’ adjudication of a petitioner’s claims was “not only incorrect, but that it was
objectively unreasonable”); see also Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (“[F]or
a federal habeas court to overturn a state court’s credibility judgments, the state court’s error must
be stark and clear.” (citing 28 U.S.C. § 2254(e)(1)(2012))).
For the foregoing reasons, the court therefore ADOPTS the findings of the Magistrate
Judge’s Report (ECF No. 119), GRANTS Respondent’s Motion for Summary Judgment (ECF
No. 103), and DISMISSES Petitioner’s habeas corpus petition (ECF No. 1).
IT IS SO ORDERED.
United States District Judge
March 22, 2016
Columbia, South Carolina
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