Blackwell v. McCall

Filing 51

ORDER RULING ON REPORT AND RECOMMENDATION 37 . The Respondent's motion for summary judgment is granted. A certificate of appealability is denied. Signed by Honorable Timothy M Cain on 11-1672. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Eric D. Blackwell,

)
)
Petitioner,
)
)
v.
)
)
Michael McCall, Warden,
)
)
Respondent.
)
__________________________________________)

CA No. 6:11-1672-TMC

ORDER

Petitioner Eric D. Blackwell (Blackwell), a state prisoner proceeding pro se, filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) The respondent
filed a return to the petition and motion for summary judgment on September 2, 2011. (Dkt. Nos.
12, 13.) This matter is before the court for review of the Report and Recommendation (Report) of
the United States magistrate judge made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02 of the District of South Carolina. (Dkt. No. 37.)1 The Report recommends granting the
respondent's motion for summary judgment. The court adopts the Report and grants the motion for
summary judgment.
I.
The facts and procedural history are set out at length in the Report, which the court adopts.
Briefly, Blackwell allegedly, in concert with his then-girlfriend, murdered another individual in
Cherokee County. On May 5, 2005, he pleaded guilty to the crime. At the guilty plea, after
extensive questioning regarding the voluntariness of the plea, the state circuit judge accepted his
1

The magistrate judge's recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the United States District Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court
is charged with making a de novo determination of those portions of the Report to which specific objection is made.
The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

plea. Following the trial of his then-girlfriend and co-defendant, Blackwell was sentenced to life in
prison. Following his plea, he filed a number of additional actions:
1. Blackwell timely filed a notice of appeal, but his counsel filed an Anders2 brief. His appeal
was dismissed by the South Carolina Court of Appeals on October 12, 2007. The remittitur
was issued October 30, 2007.
2. Blackwell filed an initial post-conviction relief (PCR) application in the state circuit court on
November 1, 2006, while his direct appeal was pending. This PCR application was dismissed
without prejudice on May 21, 2007.
3. He filed a second PCR application on July 24, 2008, in which he claimed that his counsel was
ineffective and the indictment was invalid. Following an exhaustive evidentiary hearing, his
PCR application was dismissed with prejudice on November 4, 2009.
4. He then appealed the denial of his PCR application by way of a Johnson3 petition to the South
Carolina Supreme Court. His appellate counsel certified that the appeal was without merit and
asked to be relieved. The Supreme Court denied the petition and granted appellate counsel's
request. The remittitur was issued May 12, 2011.
Subsequently, Blackwell filed this action on July 7, 2011. He raises the following claims:
Ground one: Ineffective Assistance of Trial Counsel
Supporting

facts:

(1)

Counsel

mislead

Petitioner

to

believe

by

cooperating-pleading guilty and providing testimony against codefendant he would
receive the minimum sentence of thirty (30) years imprisonment rather than “Life”:
2

Anders v. California, 386 U.S. 738 (1967). Anders requires that counsel who seeks to withdraw after finding
the "case to be wholly frivolous" following a "conscientious examination" must submit a brief referencing anything in
the record that arguably could support an appeal; furnish a copy of that brief to the defendant; and after providing the
defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to
determine if further review is merited. Anders, 386 U.S. at 744.
3

Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988).

(2) Counsel abandoned the Petitioner by allowing the prosecuting Solicitor to meet
with Petitioner alone (without counsel present) on several occasions while
sentencing was still pending.
Ground Two: “Involuntary, Unknowing, and Unintelligent Guilty Plea.”
Supporting facts: (1) Petitioner was mislead and induced to plead guilty by
sentence information provided by trial counsel - and - by the Plea Judge’s language
relative to deferring sentence until after he co-operated by testimony for the State.
(2) Being compelled to plead guilty without a full and complete understanding and
knowledge of exculpatory evidence and available defenses based upon the facts
and evidence known to defense counsel and the State.
(Dkt. No. 1 at 5–8.) The respondent filed a return and motion for summary judgment on September
2, 2011. (Dkt. Nos. 12, 13.) Following Blackwell's response (Dkt. No. 35), the magistrate judge
filed the Report, recommending that the respondent's motion for summary judgment be granted.
The magistrate judge reasoned that (1) Ground One was not procedurally barred but that counsel
was not ineffective; (2) as to the Ground Two claims about trial counsel, the claims were not
procedurally barred but that his guilty plea was made voluntarily and knowingly; and (3) as to the
Ground Two claims regarding the plea court, his claims were procedurally barred for failure to
raise these issues on direct appeal or in the underlying PCR actions.
III.
Blackwell timely filed objections to the Report. (Dkt. No. 49.) Of his six objections,
Objections Two through –Six merely constitute reiterations of his previous claims. The magistrate
judge thoroughly and adequately addressed all issues raised therein, and the court finds no reason

to deviate from the Report. As to Objections Two through –Six, the court adopts in full the
reasoning and recommendations of the magistrate judge.
The court is therefore left with Objection One. In the Report, the magistrate judge reasoned
that Blackwell had not previously raised the voluntariness of his guilty plea vis a vis any allegedly
misleading statements proffered by the plea judge. Thus, the magistrate judge stated, this claim is
time barred. In this objection, Blackwell argues that the magistrate judge erred in so reasoning
because he had previously introduced "this factual issue as an interwoven and inseparable
component of misleading inducement associated with the guilty plea and misleading advice of
counsel." The court is not persuaded.
The court has reviewed the record, including specifically Blackwell's PCR application and
PCR appeal materials, and finds no mention of any allegedly misleading statements by the trial
court—until he filed this current petition for a writ of habeas corpus. An issue may not be raised
for the first time in a federal habeas petition. Therefore, as the magistrate judge stated, this issue is
procedurally barred from review by this court. See Coleman v. Thompson, 501 U.S. 722 (1991)
(stating that failure to properly appeal issue to state appellate court results in procedural bar on
habeas review); Murray v. Carrier, 477 U.S. 478, 488 (1986) (stating that failure to appeal issue to
state appellate court results in procedural bar on habeas review); Wainwright v. Sykes, 433 U.S. 72,
87 (1977) (holding that failure to preserve issue under state law results in procedural bar on habeas
review); Mathews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (holding that issues procedurally
defaulted in state court are procedurally barred on federal habeas review).4

4

A procedural default may be excused by showing cause for noncompliance with the state rule and actual
prejudice resulting from the alleged constitutional violation. Smith v. Murray, 477 U.S. at 533 (1986). Blackwell does
not raise this issue here.

IV.
After a thorough review of the Report and the record in this case, the court adopts the
Report and incorporates it herein. (Dkt. No. 37.) It is therefore ORDERED that the respondent's
motion for summary judgment is GRANTED. (Dkt. No. 12.) The petitioner's petition for a writ of
habeas corpus is DISMISSED 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 the petitioner 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
Timothy M. Cain
United States District Judge
Greenville, South Carolina
September 26, 2012