Poole v. Warden, Perry Corr. Inst.

Filing 35

OPINION AND ORDER: The Respondent's motion for summary judgment (ECF No. 12 ) is GRANTED; and the petition is DENIED with prejudice. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 7/7/2017. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Willie James Poole,
Petitioner,
v.
Warden, Perry Correctional Institution,
Respondent.

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C/A No. 5:16-2635-TMC
OPINION & ORDER

This matter is before the court on Petitioner Willie James Poole’s (“Poole”) petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and
Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge. On
March 6, 2017, Magistrate Judge Kaymani D. West filed a Report and Recommendation
(“Report”) recommending Respondent’s motion for summary judgment (ECF No. 12) be granted
and the petition be denied (ECF No. 21). On April 10, 2017, Poole filed objections to the Report
(ECF No. 31), and on April 19, 2017, Respondent filed a response to those objections (ECF No.
33).
The Magistrate Judge makes only a recommendation to the court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de
novo determination of those portions of the Report to which specific objection is made, and the
court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the court need
not conduct a de novo review when a party makes only “general and conclusory objections that

do not direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a
timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed only for clear
error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
I. Background/Procedural History
In his Report, the magistrate judge sets out the facts and procedural history in detail.
Briefly, in December 2009, Poole was indicted for murder and possession of a weapon during the
commission of a violent crime. Poole was also charged in a separate indictment with assault and
battery with intent to kill (“ABWIK”).

On January 17, 2012, Poole pled guilty to voluntary

manslaughter and possession of a weapon during the commission of a violent crime and the
ABWIK charge was dismissed.

He was sentenced to thirty years imprisonment for the

manslaughter and five years imprisonment for the weapons charge to run consecutively.
Poole filed a direct appeal which was dismissed. Poole then filed an application for postconviction relief (“PCR”) alleging ineffective assistance of counsel, due process violations; and
subject matter jurisdiction. He also alleged his plea was involuntary and that the indictment was
defective. The PCR court denied Poole relief and dismissed his application. Poole appealed
filing a Johnson1 petition and raising the following issue: “Did the PCR court err in failing to find
plea counsel ineffective for not insuring that Petitioner Poole’s guilty plea was entered voluntarily
and knowingly because plea counsel failed to adequately investigate Petitioner’s case?” The

1

Johnson v. State, 364 S.E2d 201 (S.C. 1988). In Johnson, the South Carolina Supreme
Court adopted a procedure for appeal when appellate counsel concludes that the PCR applicant
has no meritorious grounds to present. Counsel is required to file a Johnson petition raising any
issue which is arguably appealable and requesting leave to withdraw as attorney for the
petitioner on appeal.
2

South Carolina Supreme Court denied Poole’s petition for a writ of certiorari.
Poole then filed this habeas petition raising the following grounds for relief, quoted
verbatim:
Ground One: Ineffective Assistance of Counsel
Supporting Facts: Counsel failed to adequately investigate the facts of the case
before erroneously advising Petitioner to plead guilty to the lesser included
offense. Trial counsel had previously represented Petitioner on armed robbery
(5:15-5104-TMC-KDW) and therefore counsel [knew] Petitioner could not have
committed the murder because Petitioner was committing armed robbery at the
time the murder was being committed (See Attached additional facts).2
2

Poole alleges the following additional facts to support Ground One, quoted verbatim:
Petitioner was charged with the murder of Taleva Allen,
(Petitioner’s significant other) who to have been killed on January
11, 2009 as her body was found in wooded area on January 12,
2009. On January 17, 2012 Petitioner had appeared before Judge
Stillwell for the commencement of trial. Petitioner advised the
judge he needed an attorney who would help him and that he did
not want Timothy Sullivan (“Sullivan”) representing him because
Sullivan wasn’t doing anything to him. (emphasis original and
supplied).
At that time Sullivan advised the court that he represented
Petitioner on a prior armed robbery case in which Petitioner was
ultimately convicted and sentenced to 25-years.
At that time the Judge gave Petitioner a choice to either represent
himself or keep Sullivan as counsel. At that point Petitioner felt he
had no choice but to allow Sullivan to represent him. It was then
that Petitioner realized he should accept the State’s offer to plead
guilty to voluntary manslaughter and possession of a weapon.
Interestingly though, after the Prosecution read the facts the judge
asked Petitioner if he shot and killed the decedent, Petitioner
replied “NO”. The judge then stated we will have a trial.
Petitioner submits that knowing Sullivan had done nothing to
prepare for trial and that Sullivan was not prepared by failing to
investigate Petitioner’s alibi witnesses there was no way he could
proceed to trial with Sullivan as his attorney so he entered a plea of
guilty to the State’s offer of 30-years in order to “avoid getting a
life sentence.”
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Ground Two: Conflict of Interest.
Supporting Facts: Petitioner was forced to enter a plea of guilty due to a conflict
of interest. Petitioner was previously represented by counsel on an unrelated armed
robbery (5:15-5104-TMC-KDW). Thereafter, a jury trial Petitioner was convicted
of the armed robbery. On 1-17-2012 Petitioner appeared before Judge Stillwell on
the instant offense, App.2, L.9-p.5, L.25. Judge Stillwell gave Petitioner a choice
to either roll with Sullivan or self-representation. Petitioner had no choice but to
plead guilty. App. 6, L1-p.14,1,24.
(Habeas Petition at 6,7-8, ECF No. 1 at 5, 6-7) (emphasis in original).
II. Applicable Law
Because 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, a federal court may not grant habeas relief unless the
underlying state adjudication: (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 application of
the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)
(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue
the writ simply because 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.” Id. at 410. Moreover, the state court’s factual
determinations are presumed to be correct and the petitioner has the burden of rebutting this
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

(ECF No. 1 at 14) (emphasis in original).
4

To prove such an ineffective assistance of counsel claim, a petitioner must establish both
that counsel's performance fell below an objective standard of reasonableness and that there is a
reasonable probability that the outcome of the proceeding would have been different but for the
deficient performance, a “reasonable probability” being one “sufficient to undermine confidence
in the outcome.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). When there has been a
guilty plea, the petitioner must prove that counsel's representation was below the standard of
reasonableness, and that, but for counsel's unprofessional errors, there is a reasonable probability
that petitioner would not have pled guilty and would have insisted on going to trial. Hill v.
Lockhart, 474 U.S. 52, 58-59 (1985).
Summary judgment is appropriate if a party “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);
see Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.1987) (stating that summary
judgment should be granted “only when it is clear that mere is no dispute concerning either the
facts of the controversy or the inferences to be drawn from those facts”). “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).
III. Discussion
Poole lists numerous objections to the magistrate judge’s Report. Some are not specific or
merely state the magistrate judge erred or rehash the arguments made before the magistrate judge,
and many overlap one another. The court has attempted to glean Petitioner's specific objections
as they pertain to the two grounds he raises in this petition.

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A. Ground One
In Ground One, Poole contends that plea counsel was ineffective because he failed to
adequately investigate the facts of the case before erroneously advising Poole to plead guilty to
the lesser-included offense of voluntary manslaughter. In her Report, the magistrate judge
recommends the court grant Respondent summary judgment on this ground. (Report at 30). The
magistrate judge determined that this claim was without merit. The magistrate judge found that
Poole could not demonstrate that the PCR court or South Carolina Supreme Court unreasonably
misapplied clearly established federal law in rejecting this issue, or that the PCR court made
objectively unreasonable factual findings regarding the effectiveness of plea counsel’s
investigation. Id.
Poole objects to the magistrate judge’s finding that the plea was voluntary because he
contends that even plea counsel advised the South Carolina Court of Appeals that the plea was
not voluntary. (Objections at 5). This is not entirely accurate. In the Notice of Appeal, plea
counsel stated that the “guilty plea may not have been voluntary.” (ECF No. 11-2 at 1). Along
with filing a notice of appeal, plea counsel filed a statement in which he noted that the solicitor
would not agree to an Alford3 plea, and while at first Poole refused to admit guilt, when faced
with the possibility of a trial, Poole admitted guilt. (ECF No. 11-2 at 3). Plea counsel stated that
Poole “had a tough time admitting that he actually shot his former girlfriend and the mother of his
child,” but Poole wanted to avoid the possibility of a sentence of life imprisonment without the

3

North Carolina v. Alford, 400 U.S. 25 (1970). An Alford plea is “an arrangement in which a
defendant maintains his innocence but pleads guilty for reasons of self-interest.” Uited States v. Taylor,
659 F.3d 339, 347 (4th Cir. 2011) (citing Alford, 400 U .S. at 37). A trial court may accept an Alford
plea when: (1) the defendant “intelligently concludes that his interests require entry of a guilty plea;”
and (2) “the record before the judge contains strong evidence of actual guilt.” United States v.
Mastrapa, 509 F.3d 652, 659 (4th Cir. 2007) (quoting Alford, 400 U.S. at 37-39).
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possibility of parole. Id. Plea counsel also noted that, in his opinion, there was a good chance that
Poole would have been convicted had he gone to trial on the murder charge. Id.
Poole also objects to the magistrate judge’s finding that plea counsel was not ineffective
for failing to investigate an alibi witness. Id. Poole contends the finding of the magistrate judge
that plea counsel’s testimony that he had no recollection of Poole asking him to contact an alibi
witness is refuted by the record. (Objections at 6). Poole bases this on a letter he states he wrote
to plea counsel. Id.
As noted above, in the context of a guilty plea, to establish prejudice, Poole must show
that “there is a reasonable probability that, but for counsel's errors, [petitioner] would not have
pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. Poole’s assertion
that he would not have pled guilty if he had received better assistance from counsel is not
dispositive of the issue. See United States v. Mora-Gomez, 875 F. Supp. 1208, 1214 (E.D. Va.
1995). Rather, “[t]his is an objective inquiry and [highly] dependent on the likely outcome of a
trial had the defendant not pleaded guilty.” Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007)
(internal citation omitted) (citing Hill, 474 U.S. at 59-60). The court looks to all the facts and
circumstances surrounding a petitioner's plea, including the likelihood of conviction and any
potential sentencing benefit to pleading guilty. See id. at 369-70. Here, Poole received a
substantial benefit when he pled guilty to the lesser offense and avoided a sentence of life without
parole, and the ABWIk charge was dismissed. Moreover, as counsel noted there was a strong
possibility that, had Poole not plead guilty to manslaughter, he would have been convicted of
murder.

Furthermore, the PCR court rejected Poole’s claim in regard to the alleged alibi

witnesses. The PCR court noted that plea counsel testified at the PCR hearing that most of the
witnesses could not be located and, in plea counsel’s opinion, were not likely to be helpful at
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trial. The PCR court determined that plea counsel adequately investigated and provided Poole
with throughly competent representation.
The court agrees with the magistrate judge’s determination that the PCR court or South
Carolina Supreme Court did not unreasonably misapply clearly established federal law in
rejecting this issue, nor did the PCR court made objectively unreasonable factual findings.
B. Ground Two
In Ground Two, Poole alleges that his plea counsel had a conflict of interest because he
had previously represented Poole on an unrelated armed robbery charge. In her Report, the
magistrate judge recommends that Ground Two be dismissed. (Report at 25). She determined
that the issue raised in Ground Two is procedurally barred, and the holding in Martinez v. Ryan,
566 U.S. 1 (2012), does not excuse the procedural default because the issue raised in Ground Two
is insubstantial and lacks merit. Id.
In his objections, Poole cites to Martinez and contends the issue is not barred. He also
specifically objects to the magistrate judge finding that there is no evidence of a conflict of
interest in this case and no indication that plea counsel’s interests divulged from Poole’s interests.
Poole argues that he “ was forced to enter a guilty plea due to a conflict of interest” and the
magistrate judge “failed to address the underlying claim that counsel labored under a conflict.”
(Objections 4-5).
Specifically, Poole argues that the magistrate judge erred by failing to address whether
plea counsel was acting under a conflict of interest because plea counsel had represented Poole on
the armed robbery charge and knew there was a pending collateral attack on that conviction.
(Objections at 7). Poole cites to a Second Circuit Court of Appeals, Lopez v. Scully, 58 F3d. 38
(2nd Cir. 1995), which held that counsel had an actual conflict of interest where his client moved
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to withdraw his guilty plea, alleging it was induced by counsel's coercion. A conflict existed,
since “to argue in favor of his client’s motion would require admitting serious ethical violations
and possibly subject him to liability for malpractice; on the other hand, any contention by counsel
that defendant’s allegations were not true would . . . contradict his client.” Id. at 41 (internal
quotation marks and citation omitted. In Lopez, counsel denied Lopez’s allegations and attacked
his client’s credibility. Id. at 41. The facts in this case are different. Here, Plea counsel was not
placed in a position of having to contradict Poole. Poole has not argued counsel coerced him to
plead guilty. If anything, he argues the plea judge coerced him.
In any event, the court agrees with the magistrate judge that this claim is procedurally
barred, and Poole has not established a substantial claim so as to overcome the bar pursuant to
Martinez. Pursuant to the holding in Martinez, a federal habeas court can find cause, thus
excusing procedural default of an ineffective trial counsel claim, where: (1) the claim of
ineffective assistance of trial counsel was a “substantial” claim; (2) the cause consisted of there
being no counsel or only ineffective counsel during the state collateral review proceeding; (3) the
state collateral review proceeding was the initial review proceeding in respect to the
ineffective-assistance-of-trial-counsel claim; and (4) state law requires that an “ineffective
assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.”
Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (quoting Martinez, 132 S. Ct. at 14-151318-19,
1320- 21). A “substantial” ineffective trial counsel claim is one that has some merit. Martinez,
566 U.S. at 14. The court need not decide whether PCR counsel's performance was deficient
under Strickland because Poole cannot show a reasonable probability that, but for PCR counsel's
ineffectiveness, the PCR court would have granted Poole relief. Also, Poole has not shown any
prejudice because Poole's guilty plea provided him with substantial benefits as discussed above,
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such as the reduction of his charge of murder to voluntary manslaughter and the state agreeing not
to seek a life sentence without parole.
To the extent, Poole alleges he is innocent (Objections at 6), to establish actual innocence,
“a petitioner must show that it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995); see
McQuiggin v. Perkins,

U.S.

, 133 S.Ct. at 1935. “To be credible, such a claim requires

petitioner to support his allegations of constitutional error with new reliable evidence . . . .”
Schlup, 513 U.S. at 324. “Without any new evidence of innocence, even the existence of a
concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage
of justice that would allow a habeas court to reach the merits of a barred claim.” Id. at 316. See
also Reid v. True, 349 F.3d 788, 806 (4th Cir. 2003) (holding that because the Petitioner could
provide “no new evidence at all, . . . his assertion of actual innocence fails”). Because Poole has
failed to set forth any new evidence to support an actual innocence claim, Poole’s claim fails.
Moreover, at the guilty plea, Poole admitted his guilt. See Blackledge v. Allison, 431 U.S. 63, 7374 (1977) (it is presumed that a defendant's statements at the guilty-plea hearing are presumed to
be true). A plea of guilty is considered by the court to be a solemn judicial admission that the
charges against the defendant are true. The defendant may not later argue that his plea was invalid
except in extremely limited circumstances, Blackledge, 431 U.S. 63 (explaining that in a very
limited number of cases the court will allow a defendant's challenge to his plea on the basis that
the plea was “the product of such factors as misunderstanding, duress, or misrepresentation by
others,” though the allegations must be concrete and specific).4

4

The court notes that initially Poole did not want to admit his guilt during the guilty plea
hearing. However, after the plea judge informed him that he could not plead guilty and also deny that
he killed the victim, Poole quickly admitted his guilt. The plea judge then told Poole that he did not
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The court agrees with the magistrate judge’s determination that the PCR court or South
Carolina Supreme Court did not unreasonably misapply clearly established federal law in
rejecting this issue, nor did the PCR court made objectively unreasonable factual findings.
IV. Conclusion
After a thorough review of the Report and the record in this case pursuant to the standards
set forth above, the court finds Petitioner's objections are without merit. Therefore, the court
adopts the Report and Recommendation (ECF No. 21). Accordingly, Respondent's motion for
summary judgment (ECF No. 12) is GRANTED; and the petition is DENIED with prejudice.
A certificate of appealability will not issue absent "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by demonstrating
that reasonable jurists would find both that his constitutional claims are debatable and that any
dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the instant
matter, the court finds that Petitioner has failed to make "a substantial showing of the denial of a
constitutional right." Accordingly, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
July 7, 2017

want Poole to say he committed the offense, just because Poole thought that was what the plea judge
wanted to hear. Poole then responded, “I did it.” And the plea judge asked him if he was sure, to which
Poole responded “Positive.” A short time later, the plea judge stated that he wanted to ask Poole one
more time “did you commit this crime?” Poole responded “I plead guilty.”
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