Brown v. McFadden

Filing 66

ORDER RULING ON REPORT AND RECOMMENDATION adopts 59 Report and Recommendation. 46 Respondents amended motion for summary judgment is GRANTED, and Petitioners habeas petition is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Signed by Honorable R Bryan Harwell on 3/2/2016. (gpre, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Javon Brown, a/k/a Jovan T. Brown, )
a/k/a Jovon Brown,
)
)
Petitioner,
)
)
v.
)
)
Joseph McFadden, Warden,
)
)
Respondent.
)
______________________________)

Civil Action No.: 8:14-cv-01269-RBH

ORDER

Petitioner, Javon Brown, a state prisoner proceeding pro se, initiated this action by filing a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See [ECF No. 1]. Pending before
the Court is Respondent’s amended motion for summary judgment [ECF No. 46] pursuant to Rule
56 of the Federal Rules of Civil Procedure. This matter is before the Court with the Report and
Recommendation (R & R) of United States Magistrate Judge Jacquelyn D. Austin.1 See [ECF No.
59]. The Magistrate Judge recommended granting the Respondent’s amended motion for summary
judgment and denying Petitioner’s petition. For the reasons stated below, the Court adopts the
Magistrate Judge’s R & R, as modified, grants Respondent’s amended motion for summary
judgment, and dismisses Petitioner’s § 2254 petition with prejudice.
Facts and Procedural History
This matter arises from the criminal conviction and sentence of Petitioner, Javon Brown, on
indictments for possession with intent to distribute cocaine and possession with intent to distribute
cocaine base. Petitioner was represented by James T. Irvin and on January 8, 2009, was tried in

1

This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
73.02(B)(2)(c) for the District of South Carolina.

absentia. A jury returned a verdict of guilty on both charges. Petitioner was sentenced to 20 years
imprisonment and a $10,000.00 fine on each count, with the sentences to run concurrently.
Petitioner did not appeal his conviction or sentence.
On May 28, 2010, Petitioner filed a pro se application for post-conviction relief in which he
alleged:
a)

Ineffective assistance of counsel; and

b)

Denial of due process, 6th and 14th Amend.;

A post-conviction relief (“PCR”) hearing was held on November 8, 2011. Petitioner was
represented by Barbara W. Pratt. On May 21, 2012, the PCR court filed an order denying relief as
to the convictions but granting relief as to the sentencing.2 Accordingly, the PCR court remanded
the case to the sentencing judge for a de novo sentencing hearing. On May 31, 2012, Petitioner filed
a motion to alter or amend the judgment requesting that the PCR court amend its order to include its
ruling on whether counsel was ineffective for failing to contest the use of the Petitioner’s prior
convictions to enhance his sentence. The PCR court granted the motion to alter or amend and
issued a ruling on the additional issue but denied the requested relief.
Petitioner timely appealed and was represented by Lanelle Cantey Durant who filed a
petition for writ of certiorari to the South Carolina Supreme Court on Petitioner’s behalf. The sole
issue raised on appeal was:
Did the PCR court err in failing to find trial counsel ineffective for
not making a motion to suppress the drugs which were the fruit of
an illegal arrest for DUS when Petitioner’s license was reinstated
but DMV records were not updated timely?

2

From a review of the record and the state court docket, it does not appear that Petitioner has been
resentenced in accordance with the PCR court’s order. That issue, however, is not before this Court.

2

The court denied the petition on February 10, 2014 and remitted the matter to the lower court on
March 4, 2014.
Petitioner then filed the current petition, which alleges four grounds. In ground one,
Petitioner alleges trial counsel was ineffective for failing to make a motion to suppress drugs which
were the fruit of an alleged illegal arrest. In ground two, Petitioner alleges trial counsel was
ineffective for failing to file an objection under South Carolina Rule of Criminal Procedure 6(B) to
require proof of the chain of custody at trial. In ground three, Petitioner alleges trial counsel was
ineffective for failing to investigate the facts of the stop, search, and arrest. In ground four,
Petitioner alleges trial counsel was ineffective for failing to communicate sentencing enhancement
factors.
Respondent filed a return and motion for summary judgment on August 7, 2014. On January
8, 2015, the Magistrate Judge issued an R&R recommending that Respondent’s motion for
summary judgment be denied with leave to refile. On March 2, 2015, this Court adopted the
Magistrate Judge’s R&R and denied Respondent’s motion for summary judgment without prejudice.
On March 24, 2015, Respondent filed an amended return and motion for summary judgment
arguing that grounds one and three should be denied on the merits because Petitioner cannot
establish constitutionally deficient performance by trial counsel or any resulting prejudice.
Respondent argues ground four should be dismissed as procedurally defaulted. Petitioner has
withdrawn his claim under ground two conceding that ground two was not fully exhausted.
[Petitioner’s Response in Opposition to Motion for Summary Judgment. ECF #27, at 2].
On December 7, 2015, the Magistrate Judge issued an R&R recommending Respondent’s
amended motion for summary judgment be granted and Petitioner’s petition dismissed with
3

prejudice. Petitioner filed objections to the R&R on January 28, 2016.
Legal Standards of Review
I.

Review of the Magistrate Judge’s Report & Recommendation
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 and recommendation 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 to the Magistrate Judge with instructions. 28 U.S.C. §
636(b)(1). The right to de novo review may be waived by the failure to file timely objections.
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The district court is obligated to conduct a de
novo review of every portion of the Magistrate Judge’s report to which objections have been filed.
Id. However, the Court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate’s proposed
findings and recommendations.” Id.
II.

Summary Judgment Review
“The court shall grant summary judgment 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) (2010). “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). When no genuine
4

issue of any material fact exists, summary judgment is appropriate. See Shealy v. Winston, 929 F.2d
1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed
in the light most favorable to the non-moving party. Id. However, "the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
III.

Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Therefore, in considering Petitioner’s ineffective assistance of
counsel claim, the Court’s review is limited by the deferential standard of review set forth in 28
U.S.C. § 2254(d). Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th
Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus 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 determination of
the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal
habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established federal law,” or “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”).

5

Discussion
Grounds One and Three
Grounds one and three involve allegations of ineffective assistance of trial counsel based on
the alleged failure to properly investigate the facts of the traffic stop, search, and arrest and failure to
make a motion to suppress drugs, which were the fruit of the allegedly illegal arrest. The Magistrate
Judge recommended granting Respondent’s amended motion for summary judgment as to grounds
one and three finding the PCR court’s denial of Petitioner’s ineffective assistance claim was neither
contrary to nor an unreasonable application of applicable Supreme Court precedent. The PCR court
found that because the arresting officer had probable cause for the traffic stop (arresting officer
observed Petitioner speeding and not wearing a seatbelt) and probable cause for the arrest for
driving under suspension (DMV records indicated Petitioner’s license was suspended), trial counsel
was not ineffective for either failing to further investigate the traffic stop or failing to file a motion
to suppress the drugs found as a result of the traffic stop. The Magistrate Judge found that the PCR
court properly applied Strickland v. Washington, 466 U.S. 668, 687 (1984), and because the state
trooper was able to articulate a valid reason for the stop and arrest, the PCR court had no basis to
conclude that trial counsel was ineffective for failing to further investigate the stop or for failing to
file a motion to suppress.
Petitioner objects arguing that the issue is not whether there was actually probable cause for
the arrest, but whether an objective officer could reasonably have believed that probable cause
existed. Petitioner further argues that a reasonable officer would not have arrested him for driving
under suspension because Petitioner was in possession of a receipt indicating that he had paid his
insurance at the time of his arrest and a reasonable officer would have determined that the DMV
6

records were not updated to reflect that Petitioner now had automobile insurance. Petitioner
contends the arrest and subsequent search were illegal, and the drugs should have been suppressed
had trial counsel made a reasonable investigation into the facts and circumstances of the stop,
search, and arrest and moved to suppress the drugs.
At Petitioner’s trial, the arresting officer testified that he was running his radar on the side of
U.S. Highway 501 on December 31, 2006, and observed a white Lexus exceeding the speed limit.
[State Court Appendix, ECF #24-1, at 46, Tr. 44]. The arresting officer also observed that the
driver was not wearing a seatbelt. Id. The arresting officer then stopped the vehicle on the shoulder
of the road. Id. at 45. Petitioner was driving the vehicle. Id. After a brief investigation, the officer
determined that Petitioner’s driver’s license was suspended, and arrested Petitioner for driving
under suspension. Id. at 45, 50, 53. Petitioner was then put in handcuffs and searched for weapons
or any other contraband for officer safety. Id. at 45. As the officer was patting down and searching
Petitioner, he observed a small plastic baggy in Petitioner’s waistband containing a white powdery
substance and a rock-like substance. Id. at 45-46. The arresting officer also found a large sum of
cash in Petitioner’s front right pocket. Id. at 49. SLED analyzed the substances and concluded that
the substances were 5.08 grams of powder cocaine and 4.89 grams of crack cocaine. Id. at 70.
The PCR court found that the officer had probable cause to stop Petitioner because his radar
indicated Petitioner was speeding and he observed Petitioner was not wearing a seatbelt. The PCR
court found that the officer had probable cause to arrest Petitioner because DMV records indicated
that the Petitioner’s license was suspended. Following the traffic stop and arrest, both of which
were supported by probable cause, the PCR court found that the officer conducted a permissible
search incident to arrest and discovered the drugs. See State v. Freiburger, 620 S.E.2d 737, 741
7

(S.C. 2005). Therefore, the PCR court found that trial counsel’s performance was not deficient for
not pursuing a motion to suppress and Petitioner was not prejudiced.
To establish ineffective assistance of counsel, a petitioner must show that (1) “counsel's
performance was deficient” and (2) “the deficient performance prejudiced the defendant.” Strickland
v. Washington, 466 U.S. 668, 687 (1984). To prove that counsel's performance was deficient, a
petitioner must show that “counsel's representation fell below an objective standard of
reasonableness.” Id. at 688, and that the “acts and omissions” of counsel were, in light of all the
circumstances, “outside the range of professionally competent assistance.” Id. at 690. Such a
determination “must be highly deferential,” with a “strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.” Id. at 689; see also, Burket v.
Angelone, 208 F.3d 172, 189 (4th Cir. 2000) (reviewing court “must be highly deferential in
scrutinizing [counsel's] performance and must filter the distorting effects of hindsight from [its]
analysis”); Spencer v. Murray, 18 F.3d 229,233 (4th Cir. 1994) (court must “presume that
challenged acts are likely the result of sound trial strategy.”). To satisfy Strickland's prejudice
prong, a “defendant must show that there is 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 is a probability sufficient to undermine confidence in the
outcome.” Id. The two prongs of the Strickland test are “separate and distinct elements of an
ineffective assistance claim,” and a successful petition “must show both deficient performance and
prejudice.” Spencer, 18 F.3d at 233. Therefore, a court need not review the reasonableness of
counsel's performance if a petitioner fails to show prejudice. Quesinberry v. Taylor, 162 F.3d 273,
278 (4th Cir. 1998).
8

Because Petitioner had no legal basis to challenge his traffic stop, search, or arrest, and there
was no 4th amendment violation in his search incident to arrest, Petitioner cannot establish that his
trial counsel’s alleged failure to pursue a motion to suppress the drugs fell below an objective
standard of reasonableness. Furthermore, in the absence of a 4th amendment violation, Petitioner
cannot establish prejudice from trial counsel’s failure to seek suppression of the drugs. Petitioner
argues that his arrest was illegal because the officer knew his license was suspended for not paying
his car insurance and a reasonable officer would have determined that DMV records were simply
not updated after Petitioner presented his receipt for payment of his car insurance. However, even
where an arrest is in violation of state law or does not result in a conviction, a search incident to
arrest is permitted as long as there has been no 4th amendment violation. See Virginia v. Moore, 553
U.S. 164, 176-78 (2008) (holding that search incident to arrest for driving with a suspended license
did not violate Fourth Amendment where police officers had probable cause to believe motorist was
driving with a suspended license even though state law required issuance of a summons and did not
authorize arrest). Further, “[a]n officer has probable cause for arrest when the facts and
circumstances within the officer’s knowledge ... are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.” Wilson v. Kittoe, 337 F.3d 392, 398 (4th Cir. 2003).
The arresting officer in this case was not required to accept Petitioner’s explanation as to why DMV
records were not accurate before making an arrest based on the facts and circumstances within his
knowledge. Probable cause did not simply vanish when Petitioner presented a receipt indicating
that he had paid his car insurance. Accordingly, the PCR court’s decision denying Petitioner’s
claim that trial counsel was ineffective for failing to pursue a motion to suppress or properly
9

investigate the traffic stop, search, and arrest, was not contrary to, or an unreasonable application of,
clearly established Federal law. Moreover, the PCR court’s decision was not based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding. Petitioner is not entitled to habeas corpus relief on either ground one or ground three.
Ground Four
In ground four, Petitioner alleges his trial counsel was ineffective for failing to communicate
sentencing enhancement factors to him before trial. Petitioner contends that if trial counsel had
communicated that his prior convictions could be used to enhance his sentence, then he would have
allegedly accepted the plea offer. The Magistrate Judge found that the claim was procedurally
defaulted because the claim was not raised to the South Carolina Supreme Court and the limited
exception set forth in Martinez v. Ryan, 132 S. Ct. 1309 (2012), does not extend to PCR appellate
counsel. Petitioner objects arguing that because the claim was not first presented in the PCR court,
Martinez applies and permits this Court to review his claim in ground four concerning the failure to
communicate enhancement factors before trial.
Before seeking federal habeas review of a claim, a petitioner ordinarily must raise the claim
in state court by complying with state procedural rules and exhausting available state remedies.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). “[W]hen a habeas petitioner fails to exhaust state
remedies for a claim, federal review is not available until the petitioner either returns to state court
with the claim or demonstrates that such an attempt would be futile, in which case the claim is
treated as procedurally defaulted.” Gray v. Zook, 806 F.3d 783, 798 (4th Cir. 2015). To overcome a
procedural default, a petitioner must demonstrate either (1) cause and resulting prejudice, or (2) that
the failure to review the claim “will result in a fundamental miscarriage of justice.” Coleman, 501
10

U.S. at 750.
In Martinez v. Ryan, the United States Supreme Court established a “limited qualification”
to the rule in Coleman and held inadequate assistance of counsel “at initial-review collateral review
proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective
assistance at trial.” 132 S. Ct. at 1315, 1319. The Supreme Court ruled as follows:
Where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing
a substantial claim of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.
Id. at 1320. The Martinez Court explained a “substantial” claim of ineffective assistance of counsel
is one that has “some merit.” Id. at 1318 (“To overcome the default, a prisoner must also
demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has some merit.”). A claim is
insubstantial if “it does not have any merit or . . . is wholly without factual support, or . . . the
attorney in the initial-review collateral proceeding did not perform below constitutional standards.”
Id. at 1319. The Fourth Circuit Court of Appeals has summarized the Martinez exception as
follows:
Martinez held that a federal habeas petitioner who seeks to raise an
otherwise procedurally defaulted claim of
ineffective-assistance-of-trial-counsel before the federal court may
do so only if: (1) the ineffective-assistance-of-trial-counsel claim is
a substantial one; (2) the “cause” for default “consist[s] 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
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raised in an initial-review collateral proceeding.”
Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014) (alteration in original) (quoting Trevino v.
Thaler, 133 S. Ct. 1911, 1918 (2013)); see also Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir.
2012) (summarizing the Martinez test to require the following: “a reviewing court must determine
whether the petitioner’s attorney in the first collateral proceeding was ineffective . . ., whether the
petitioner’s claim of ineffective assistance of trial counsel is substantial, and whether there is
prejudice”). Further, to excuse the procedural default of Corley’s claims, he must “show that [PCR]
counsel’s representation during the post-conviction proceeding was objectively unreasonable, and
that, but for his errors, there is a reasonable probability that Petitioner would have received relief on
a claim of ineffective assistance of trial counsel in the state post-conviction matter.” Sexton, 679
F.3d at 1157; see also Williams, 529 U.S. at 391 (stating that “the Strickland test provides sufficient
guidance for resolving virtually all ineffective assistance-of-counsel claims”).
Generally, the highly deferential standards of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA)—namely, 28 U.S.C. § 2254—govern federal habeas review of claims
originally presented in state courts. See 28 U.S.C. § 2254(d) (providing review standards for “any
claim that was adjudicated on the merits in State court proceedings”); see also Lindh v. Murphy, 521
U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). However, “because a
petitioner raising a Martinez claim never presented the claim in state court, a federal court considers
it de novo, rather than under AEDPA’s deferential standard of review.” Gray, 806 F.3d at 789
(“Martinez permits a petitioner, under certain circumstances, to excuse a procedural default and
bring a claim in federal court that was not raised in state court. Such a claim, never having been
heard by a state court, is reviewed de novo.”).

12

A review of the record indicates that ground four was not raised in Petitioner’s state court
PCR proceeding. Thus, the Court must now consider whether Martinez operates to permit review of
Petitioner’s ground four.3 Applying the Martinez standard to this case, it is clear that Petitioner’s
underlying claim of ineffective assistance of counsel regarding the failure to communicate
enhancement factors prior to trial is not a substantial one. Petitioner admits that trial counsel
informed Petitioner the State was pursuing the charge as a third offense. Because Petitioner was
aware that the charges were being pursued as a third offense, it cannot be said that trial counsel was
constitutionally ineffective for failing to discuss it further with Petitioner. Furthermore, although
Petitioner claims that “[h]ad counsel specifically informed Petitioner that the reason why the state
was pursuing a third offense was because of the marijuana conviction, Petitioner would have
understood and felt comfortable accepting the ten (10) year plea deal and/or Petitioner would have
demand [sic] counsel to challenged [sic] the use of the marijuana conviction for enhancement
purposes,” Petitioner fails to establish any resulting prejudice from the alleged failure to
communicate the enhancement factors. As a result, it was not objectively unreasonable for PCR
counsel not to raise the alleged failure to communicate issue in the state PCR proceeding. Petitioner
has failed to establish that the PCR court would have granted relief on this issue had it been
presented. Because Petitioner cannot establish the limited exception set forth in Martinez, ground
four is procedurally defaulted.
Certificate of Appealability
3

The Court respectfully disagrees with the portion of the Magistrate Judge’s R&R, which states that Petitioner
may not rely on Martinez to establish cause for the procedural default because the claim was not raised to the South
Carolina Supreme Court. See [R&R, ECF No. 59, at 17]. Because the claim was not initially raised to the PCR court,
the Court must apply Martinez in order to determine whether Petitioner’s failure to exhaust can be excused. The
Court does agree, however, with the Magistrate Judge’s analysis in footnote seven of the R&R, which concludes that
Petitioner is unable to establish that his underlying ineffective assistance of counsel claim is a substantial one.

13

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). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating reasonable jurists would find the court’s
assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief
on procedural grounds, the prisoner must demonstrate both the dispositive procedural ruling is
debatable and that the petition states a debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85. In this case, the Court concludes that Petitioner has not made the requisite
showing of “the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Conclusion
After reviewing the entire record, and for the reasons stated above and by the Magistrate
Judge in the Report and Recommendation, the Court overrules Petitioner’s objections [ECF No. 64]
and adopts and incorporates by reference the Report and Recommendation [ECF No. 59] of the
Magistrate Judge, as modified above.
IT IS THEREFORE ORDERED that Respondent’s amended motion for summary
judgment [ECF No. 46] is GRANTED, and Petitioner’s habeas petition [ECF No. 1] is
DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that a certificate of
appealability is DENIED because Petitioner has not made “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
March 2, 2016
Florence, South Carolina

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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