Robinson v. McFadden

Filing 71

ORDER RULING ON REPORT AND RECOMMENDATION: The court ACCEPTS IN PART and REJECTS IN PART the Magistrate Judge's Report and Recommendation (ECF No. 58 ). Respondent's Motion for Summary Judgment (ECF No. 47 ) is GRANT ED IN PART with respect to Grounds One through Nine and Eleven through Thirteen and DENIED IN PART WITHOUT PREJUDICE with respect to Ground Ten. Grounds One through Nine and Eleven through Thirteen of Petitioner's Petition for a Writ of Habeas C orpus (ECF No. 1 ) are DENIED. This matter is REMANDED to the Magistrate Judge for consideration of any further motions and briefings in accordance with this order. A certificate of appealability is denied. Signed by Honorable J Michelle Childs on 09/30/2016. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Corey Jawan Robinson,

)
)
Petitioner,
)
)
v.
)
)
Joseph McFadden, Warden,
)
)
Respondent.
)
____________________________________)

Civil Action No.: 5:14-cv-04718-JMC

ORDER AND OPINION

Petitioner Corey Jawan Robinson (“Petitioner”), a state prisoner, filed this pro se Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging thirteen numbered Grounds for
relief. (ECF No. 1.) In Grounds Nine, Ten, and Eleven, respectively, Petitioner alleges that the
trial court erred by not granting his motion to suppress evidence, by not granting his motion for
directed verdict on the ground that the prosecution had failed to prove his actual or constructive
possession of the drugs at issue in his case, and by allowing him to appear pro se at trial when he
had not waived his right to counsel. (Id. at 19-21.) In Ground Seven, Petitioner alleges that his trial
counsel rendered ineffective assistance of counsel (“IAC”) by failing to properly argue a motion
to suppress and to request a Franks1 hearing. (Id. at 17.) In Grounds One, Two, Three, and Four,
respectively, Petitioner alleges that his counsel in his direct appeal rendered IAC by failing to file
a merits brief on the issues of whether drugs used as evidence in Petitioner’s trial should have been
suppressed, whether a directed verdict was warranted because Petitioner was entitled to flee from
an arresting officer who lacked reasonable suspicion to detain him, whether a directed verdict was
warranted because of the prosecution’s failure to prove actual or constructive possession of the

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Franks v. Delaware, 438 U.S. 154 (1978).
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drugs as an essential element of the crime, and whether the trial court abused its discretion in
admitting physical evidence over Petitioner’s objection. (Id. at 6-14.) In Grounds Five, Six, Eight,
Twelve, and Thirteen, respectively, Petitioner alleges that his counsel during post-conviction relief
(“PCR”) proceedings rendered IAC by failing to subpoena a video recording from a police car’s
camera, request a Franks hearing, and move for a continuance; failing to preserve prosecutorial
misconduct and newly-discovered-evidence claims by filing a S.C. App. Ct. R. 59(e) motion;
failing to conduct a substantial investigation of the record and amend the PCR application to
include claims that the trial court erred in not granting Plaintiff’s motion for a new trial and that
appellate counsel rendered IAC by not raising this issue in a merits brief; failing to conduct a
substantial investigation of the record after new evidence demonstrated prosecutorial misconduct
and a Brady2 violation; and failing to conduct a substantial investigation of the record after new
evidence demonstrated prosecutorial misconduct under American Bar Association standards. (Id.
at 15-16, 18, 22-23.)
This matter is before the court on Respondent Joseph McFadden’s (“Respondent”) Motion
for Summary Judgment (ECF No. 47.)3 In accordance with 28 U.S.C. § 636(b) and Local Rule
73.02 D.S.C., the matter was referred to United States Magistrate Judge Kaymani D. West, for
pre-trial handling. On March 2, 2016, the Magistrate Judge issued a Report and Recommendation
recommending the court grant Respondent’s Motion for Summary Judgment and deny the Petition.
(ECF No. 58.) This review considers Petitioner’s Objections to the Report and Recommendation

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Brady v. Maryland, 373 U.S. 83 (1963).

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Respondent filed an initial Return and Motion for Summary Judgment on March 30, 2015. (ECF
Nos. 23, 24.) The Magistrate Judge instructed Respondent to withdraw the initial filings and refile them so that certain omitted pages would be contained in the re-filed Return. (ECF No. 42.)
Respondent re-filed the Return and Motion for Summary Judgment on November 25, 2015. (ECF
Nos. 46, 47.)
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(“Objections”) (ECF No. 64), Respondent’s response thereto (ECF No. 66), and Petitioner’s reply
(ECF No. 68). For the reasons set forth herein, the court ACCEPTS IN PART and REJECTS IN
PART the Magistrate Judge’s Report and Recommendation (ECF No. 58), GRANTS IN PART
and DENIES IN PART Respondent’s Motion for Summary Judgment (ECF No. 46), DENIES
Grounds One through Nine and Eleven through Thirteen of the Petition (ECF No. 1), and
REMANDS the matter to the Magistrate Judge.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the Report and Recommendation is accurate, except in one respect
discussed below, and, aside from this exception, the court adopts the summary. The court will only
recite herein facts pertinent to the analysis of Petitioner’s Objections.
The Magistrate Judge determined that Petitioner’s claims under Grounds Two, Three, Four,
Five, Six, Seven, Eight, Ten, Twelve, and Thirteen are procedurally barred because Petitioner has
failed to exhaust the claims in state court, and the claims could no longer be raised there. (ECF
No. 58 at 24.); see generally Woodford v. Ngo, 548 U.S. 81 (2006); Hedrick v. True, 443 F.3d 342
(4th Cir. 2006). With respect to Grounds Two, Three, Four, Seven, and Ten, the Magistrate Judge
determined that, although Petitioner asserted that his failure to raise the claims should be excused
under Martinez,4 that case was of no aid to Petitioner because he failed to assert that the cause for
his failure to raise the claims was his PCR counsel’s error. (ECF No. 58 at 25.) With respect to
Grounds Five, Six, Eight, Twelve, and Thirteen, she determined that Martinez did not apply
because none of the underlying defaulted claims involved trial counsel’s IAC. (Id. at 26-28.) The
Magistrate Judge further found with respect to all of these Grounds that Petitioner had otherwise

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Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012).
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failed to demonstrate that cause and prejudice or a miscarriage of justice excused his procedural
default. (Id. at 25-26.)

The Magistrate Judge determined that the Ground One claim should be denied on the merits

because the PCR court’s decision to deny Petitioner’s claim that his appellate counsel rendered
IAC by not filing a merits brief on the issue of whether the drugs at issue in his case should have
been suppressed was not an unreasonable application of clearly established federal law. (Id. at 29
(citing Williams v. Taylor, 529 U.S. 362, 398 (2000); Smith v. Robbins, 528 U.S. 259, 285 (2000);
Jones v. Barnes, 463 U.S. 745, 751-52 (1983); Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986);
Griffin v. Aiken, 775 F.2d 1226 (4th Cir. 1985); Southerland v. State, 524 S.E.2d 833, 836 (1999)).)
Regarding Petitioner’s Ground Nine claim, the Magistrate Judge noted that a state trial court’s
decision not to suppress evidence over Petitioner’s objection based on the Fourth Amendment is
not reviewable in a § 2254 proceedings so long as the state provided a mechanism for the Fourth
Amendment argument to be heard and Petitioner’s opportunity to fully and fairly present the
argument through the mechanism was not impaired. (Id. at 31 (citing Stone v. Powell, 428 U.S.
465, 489-95 (1976); Doleman v. Murphy, 579 F.2d 1258, 1265 (4th Cir. 1978)).) The Magistrate
Judge determined that, because the state provided a mechanism to address the argument and
because Petitioner was afforded an opportunity to fully and fairly present it, the claim was not
cognizable. (Id.) The Magistrate Judge determined that Petitioner procedurally defaulted his
Ground Eleven claim because he failed to raise at trial any argument regarding his waiver of his
right to counsel. (Id. at 32-33 (citing Weeks v. Angelone, 176 F.3d 249, 269 (4th Cir. 1999);
Howard v. Moore, 131 F.3d 399, 420 (4th Cir. 1997); McKenzie v. Cartledge, No. 8:13-CV-02488RBH, 2014 WL 3919711, at *2 (D.S.C. Aug. 11, 2014)).)

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II. LEGAL STANDARD AND ANALYSIS
A. Standard of review
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge
makes only a recommendation to this court. The recommendation has no presumptive weight. The
responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made, and 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).
B. The exhaustion requirement
“Before seeking federal habeas review of a claim, a [state prisoner] ordinarily must raise
that claim in the state court, complying with state procedural rules and exhausting available state
remedies.” Gray v. Zook, 806 F.3d 783, 797-98 (4th Cir. 2015) (citing Coleman v. Thompson, 501
U.S. 722, 750 (1991)). “It is the general rule that after issues have been properly presented on
direct appeal from a conviction to the highest state court to which resort may be had, a federal
habeas petitioner will be deemed to have fully complied with the exhaustion requirement, since
further resort to state courts may fairly be considered futile after the state’s highest court has passed
on the issues presented.” Thomson v. Peyton, 406 F.2d 473, 474 (4th Cir. 1968) (per curiam);
accord O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); cf. Lyons v. Weisner, 247 F. App’x 440,
446 n.4 (4th Cir. 2007) (explaining petitioner “exhausted his claim by raising it on direct appeal
[even though he did not raise it in state post-conviction proceeding], which is sufficient in North
Carolina to exhaust a claim for federal habeas purposes”).

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The South Carolina Supreme Court has held that the presentation of claims to the South
Carolina Court of Appeals, alone, is sufficient to exhaust state remedies for federal habeas corpus
review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State
Remedies in Criminal and Post–Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). In
McKennedy, the South Carolina Supreme Court specifically held that In re Exhaustion had placed
discretionary review by the South Carolina Supreme Court “outside of South Carolina’s ordinary
appellate review procedure pursuant to O’Sullivan.” 559 S.E.2d at 854. Accordingly, a claim
would not be procedurally barred from review in this court for failure to pursue review in the South
Carolina Supreme Court after an adverse decision in the South Carolina Court of Appeals, either
after a direct appeal or after pursuing relief in a PCR application.
In order to exhaust state remedies, a § 2254 petitioner must provide the state “the
‘opportunity to pass upon and correct alleged violation of . . . federal rights.’” Baldwin v. Reese,
541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). “To
provide the State with the necessary ‘opportunity,’ the [petitioner] must ‘fairly present’ his claim
in each appropriate state court . . . , thereby alerting that court to the federal nature of the claim.”
Id. “[O]rdinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court must
read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a
federal claim.” Id. at 32.
C. The court’s evaluation
Although Petitioner’s objections are rambling and lack clarity, because he is a pro se
litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1978). Even liberally construed, however, the court concludes, with one exception,
that Petitioner’s objections are either conclusory, irrelevant, or merely rehash the arguments that

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were already before the Magistrate Judge based on the state court records and the parties’
contentions contained in their memoranda, responses, and replies. Because the court perceives no
clear error in the Magistrate Judge’s determinations against which Petitioner lodges only
conclusory objections, those objections must be overruled.5 Furthermore, as the remainder of
Plaintiff’s objections merely repeat the evidence and arguments presented to the Magistrate Judge,
which the Magistrate Judge thoroughly considered and correctly assessed,6 the court overrules
Plaintiff’s objections and accepts the Magistrate Judge’s Report and Recommendation without
elaboration except for the objection discussed below. See In re Brady-Zell, 756 F.3d 69, 71 (1st
Cir. 2014) (“[W]hen lower [tribunal]s have supportably found the facts, applied the appropriate
legal standards, articulated their reasoning clearly, and reached a correct result, a reviewing court
ought not to write at length merely to hear its own words resonate.”); accord Moses v. Mele, 711
F.3d 213, 215-16 (1st Cir. 2013); In re Curry, 509 F.3d 735, 735 (6th Cir. 2007); Nichols v. Reno,
124 F.3d 1376, 1378 (10th Cir. 1997).
Only one objection lodged by Petitioner warrants discussion. In his Ground Ten claim,
Petitioner alleges that the “Trial Judge erred in not granting [his] motion for direct verdict [based
on the prosecution’s] failure to prove actual or constructive possession [of the drugs at issue].”
(ECF No. 1 at 20.) The Magistrate Judge determined that Petitioner failed to exhaust this claim by

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The vast majority of these conclusory objections involve Petitioner’s unsupported assertions that
he demonstrated cause and prejudice sufficient to excuse his procedurally defaulting 11 of his 13
claims.
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The vast majority of these objections involve arguments that the Magistrate Judge incorrectly
determined that Petitioner procedurally defaulted 11 of his 13 claims by failing to raise them to
the highest state court to adjudicate his direct appeal or his PCR proceeding. His remaining
arguments regarding the two claims that the Magistrate Judge addressed on the merits either were
correctly rejected by the Magistrate Judge or do not challenge her reasons for recommending
denial. 
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not raising it in the appropriate state court. However, Petitioner objects to this determination,
arguing that he raised the claim on direct appeal. (ECF No. 68 at 2 (citing ECF No. 46-2 at 8-20).)
In his pro se brief to the South Carolina Court of Appeals—on which the Magistrate Judge relied
in determining that Petitioner had exhausted claims under Grounds Nine and Eleven (ECF No. 58
at 24)—Plaintiff stated the issue on appeal:
The lower court erred in allowing arresting officer to make an illegal
arrest without probable cause, which result from illegal detention, illegal
search and illegal seizure of an unlawful arrest and denial of motion to
suppress. State failed to prove actual possession by defendant of crack cocaine
and marijuana found in bag on ground near where defendant was
apprehended, state failed to prove constructive possession by defendant of
crack cocaine and marijuana, defendant was entitled to judgment of acquittal
Appellant raise the facts, errors and prejudice on the grounds of false
testimonies of witnesses, grounds of violation of motion in limine, hearsay
evidence and money as evidence. The lower court erred in not granting
appellant motion to quash the warrants and the defective of the COR code in
the indictments. Errors in appellant sentencing sheet for possession with intent
to distribute cocaine base.
(ECF No. 46-2 at 8 (emphasis added).) In the argument section of the brief, Petitioner isolated the
claim by setting forth the italicized language above as the header of a separate argument. (Id. at
12). The court concludes, based on this language, that Petitioner, in fact, raised the claim contained
in Ground Ten in his pro se brief filed in his direct appeal.
The court further concludes that, by raising the Ground Ten claim on direct appeal,
Petitioner satisfied the exhaustion requirement for the claim. First, he received an adverse ruling
on the claim from the South Carolina Court of Appeals (ECF No. 46-2 at 23), such that he
presented the claim to the highest state court necessary for purposes of exhaustion. See
McKennedy, 559 S.E.2d at 854; In re Exhaustion, 471 S.E.2d 454. Petitioner fairly presented the
claim by placing it squarely in the statement of the issue and separately addressing it in a subsection
of his pro se appellate brief. See Baldwin, 541 U.S. at 29. Moreover, the claim Petitioner presented

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was one for a violation of federal constitutional law. See West v. Wright, 931 F.2d 262, 266 (4th
Cir. 1991) (“Any challenge to the sufficiency of the evidence to convict in a state prosecution is
necessarily a due process challenge to the conviction.”), rev’d on other grounds Wright v. West,
505 U.S. 277 (1992). Accordingly, Petitioner satisfied the exhaustion requirement, and denial
based on failure to exhaust is inappropriate.
The court notes that Respondent moved for summary judgment with respect to the Ground
Ten claim on various grounds, some procedural and some merits-based (see ECF No. 46 at 22,
54.), and that the Report and Recommendation does not contain a description of the factual and
procedural background from which resolution on these grounds easily could be had. The court also
notes that both parties’ submissions with respect to the Ground Ten claim are rather terse compared
to their discussion on other claims. The court believes it is in the interests of expeditious
adjudication for Respondent’s summary judgment motion to be denied without prejudice as to
Ground Ten so that it may refile the motion and the court may have more fully developed argument
on the issue.
III. CONCLUSION
Upon careful consideration of the entire record, the court ACCEPTS IN PART and
REJECTS IN PART the Magistrate Judge’s Report and Recommendation (ECF No. 58).
Respondent’s Motion for Summary Judgment (ECF No. 47) is GRANTED IN PART with respect
to Grounds One through Nine and Eleven through Thirteen and DENIED IN PART WITHOUT
PREJUDICE with respect to Ground Ten. Grounds One through Nine and Eleven through
Thirteen of Petitioner’s Petition for a Writ of Habeas Corpus (ECF No. 1) are DENIED. This
matter is REMANDED to the Magistrate Judge for consideration of any further motions and
briefings in accordance with this order.

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Certificate of Appealability
The law governing certificates of appealability 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 prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El 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). In this case, the legal standard for the issuance of a certificate of
appealability has not been met.
IT IS SO ORDERED.

United States District Judge

September 30, 2016
Columbia, South Carolina

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