Hough v. Cartledge

Filing 25

ORDER RULING ON REPORT AND RECOMMENDATION adopts 17 Report and Recommendation, grants 12 Motion for Summary Judgment filed by Leroy Cartledge. A certificate of appealability is denied. Signed by Honorable Richard M Gergel on 2/27/2017. (gpre, )

IN THE UNITED STATES DISTRICT COUR~CEIVrD CLER!'I'S OFFICE
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
1011 fEB 21 P 12: 28
Michael A. Hough,
Petitioner,

v.
Leroy Cartledge,
Respondent.

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Case No. 8: 16-cv-00259-RtMG:::- U'!y\T
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ORDER AND OPINION

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Michael A. Hough ("Petitioner") is a state prisoner confined at McConnick Correctional
Institution in South Carolina. Petitioner is proceeding pro se and seeks habeas relief under 28
U.S.C. § 2254. This matter is before the Court on the Report and Recommendation ("R & R")
of the Magistrate Judge to grant Respondent's motion for summary judgment and deny the
habeas petition. (Dkt. No. 17.) Petitioner filed objections to the R & R in October 2016. (Dkt.
No. 23.) This Court has reviewed the record in this matter, the decisions of the state courts, the
briefs of the parties, the Magistrate's R & R, Petitioner's objections to the R & R, and the
relevant case law. For the reasons below, this Court GRANTS Respondent's motion for
summary judgment and DENIES the habeas petition.

I.

Background
A.

Indictment and Trial

Petitioner was indicted on one count of murder in October 2008, and he proceeded to trial
by jury on June 22, 2009. (Dkt. No. 11-1 at 179-80.) Cornelius J. Riley and Jason D. Kirincich
represented Petitioner at trial. The trial court dissolved the jury when one juror discovered
infonnation about Petitioner's criminal history and shared it with the other jurors. On July 28,
2009, represented by Mr. Riley, Petitioner pled guilty to voluntary manslaughter and waived his

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right to a jury trial. (Id. at 88-109.) The court sentenced Petitioner to twenty-three (23) years in
prison. (Id. at 108.) There were no direct appeals.

B.

Post-Conviction Relief

On November 20, 2009, Petitioner filed a pro se application for post-conviction relief
(PCR) based on ineffective assistance of counsel. (Id. at 110.) Petitioner alleged that Mr. Riley
coerced him to plead guilty when he incorrectly told Petitioner that he could not receive an
involuntary manslaughter jury instruction at trial. Petitioner argued that because there was
evidence of a struggle over a weapon between himself and the victim, he may have been able to
obtain an involuntary manslaughter instruction at trial. (Id. at 118.) The State filed a return to the
petition on March 19, 2010 and requested an evidentiary hearing. (Id. at 119-22.) Jeremy
Thompson represented Petitioner at his PCR hearing on June 7,2011.
In its July 22, 2011 order granting Petitioner's PCR application, the PCR court made the
following findings of fact from the record and that hearing:
The facts in this case are not in significant dispute. According to the Applicant, on
April 17, 2008, he and two other individuals planned to rob the home of Rodney
Baskins, a known drug dealer. They went by the house but saw that there were
people at the home, so they left and planned to come back when the home was
[unoccupied]. When they returned, they saw that there [were] people still in the
home. The Applicant told the others that he would just go up to the home and rob
Baskins. However, on his way up to the home, the Applicant thought better of his
plan and decided he was going to sell his gun. Before he reached the home, the
Applicant encountered Francis "Puddin" Horton, the victim in this case, and
offered to sell him the gun. The victim asked to examine the gun, but the
Applicant refused. The victim then grabbed the gun and a struggle ensued. During
the struggle, the victim was fatally shot. [FNl] The Applicant testified that he did
not know who pulled the trigger and that he did not mean to shoot the victim.
At the time of the incident, the Applicant was on community supervision.
Following the Applicant's arrest, his community supervision was revoked and he
was placed back into SCDC custody. For the bulk of the Applicant's service of
this sentence, he was housed at Lieber Correctional Institution in Ridgeville,
South Carolina. The Applicant was released from SCDC custody on April 1,
2009, and was returned to the Kershaw County Detention Center, where he
remained until his plea. Although the Applicant was scheduled to proceed to trial
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the week of June 22, 2009, defense counsel had only met with the Applicant for a
total of three to four hours on a few occasions prior to that date. See 6/22/09 Tr. p.
4 at 23-25. At the outset of that trial, the Applicant attempted to have defense
counsel relieved, but the motion was denied. The trial was ultimately continued
after a juror obtained the Applicant's criminal record and shared it with the other
jurors. See 6/22/09 Tr. p. 66, lines 12-22; p. 72, lines 3-22.
Prior to the aborted trial, the Applicant told defense counsel that he was not
present at Baskins' home the night of the shooting and that he had nothing to do
with the death of the victim. Following the trial, the Applicant sent defense
counsel a letter detailing his involvement in the death of the victim. Defense
counsel sent a letter back to the Applicant stating
Please remember that, as you've told me, [l] you went to Rodney's
house with a gun; [2] you had the gun out and it went off in a
struggle; and [3] a man died. If the prosecution can prove those
three things, as I believe they can, the jury will have no choice but
to convict you of at least voluntary manslaughter, which the State
has offered.
Letter to Applicant dated July 17, 2009. [FN2] Defense counsel testified before
this Court that while he did not recall the Applicant telling him about the
attempted sale of the firearm, the letter to the Applicant effectively summarized
his advice to the Applicant about accepting a plea deal. The Applicant testified
that defense counsel never advised him that evidence of a struggle over the gun
could be used to argue for the lesser-included offense of involuntary manslaughter
at trial. The Applicant further testified that had he known that the jury could have
been instructed on the crime of involuntary manslaughter, he would have
proceeded to triaL
[FN1:] Although the State's witnesses would have disagreed with the Applicant
as to how the incident began, the State informed the plea court that a struggle over
the gun did occur. See Guilty Plea Tr. p. 8, lines 2-6.
[FN2:] This letter was admitted as an exhibit during the hearing.
(/d. at 171-72.) Relying on these facts and the decisions of two South Carolina courts which had

found that evidence of a struggle over a weapon supports submission of an involuntary
manslaughter charge to the jury, the PCR court found that "counsel's advice was incorrect as a
matteroflaw." (Dkt. No. 11-1 at 174); see Tisdale v. State, 662 S.E.2d410, 412 (S.C. 2008)
("Evidence of a struggle between the defendant and the victim over a weapon supports
submission of an involuntary manslaughter charge."); see also Casey v. State, 409 S.E.2d 391,
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392 (S.C. 1991) ("Evidence of a struggle between a defendant and a Victim over a weapon is
sufficient for submission of an involuntary manslaughter instruction to the jury.") Respondent
argued that the struggle over the gun alone was not sufficient to support a charge of involuntary
manslaughter when Petitioner's conduct did not otherwise meet either definition of involuntary
manslaughter. The PCR court disagreed with Respondent's position on this point, but it
nonetheless found that Petitioner might have been entitled to an involuntary manslaughter charge
at trial based on the first definition I of involuntary manslaughter: the unintentional killing of
another without malice but while engaged in an unlawful activity not tending to cause death or
great bodily harm. 2
Notably, the PCR court found that to the extent there was any dispute at the PCR hearing
about whether Petitioner had given counsel the full version of events prior to pleading guilty,
"Counsel's failure to sufficiently communicate with the Applicant led to a breakdown in the
attorney/client relationship that resulted in the Applicant holding back information from defense
counsel." (Dkt. No. 11-1 at 175.) Defense counsel met with Petitioner for only three to four
hours in advance of Petitioner's scheduled trial for murder. (ld.)
At his PCR hearing, Petitioner testified that he was prejudiced by his counsel's deficient
performance because he would have proceeded to trial instead of pleading guilty had he received
correct legal advice. The PCR court found Petitioner credible on this point: "[P]roper advice

The two definitions of involuntary manslaughter in South Carolina are generally cited as a pair. In South
Carolina, involuntary manslaughter is the unintentional killing of another without malice while engaged
in either (I) the commission of some unlawful act not amounting to a felony and not naturally tending to
cause death or great bodily harm, or (2) the doing of a lawful act with a reckless disregard for the safety
of others. State v. Sams, 764 S.E.2d 511, 514 (S.C. 2014) (emphasis added). The PCR court omitted the
"not amounting to a felony" caveat in the first definition.
I

2 The PCR court found that unlawful sale of a firearm was not an activity that naturally tends to cause
death or great bodily harm.

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about the possible results at trial, instead of the improper advice which was given, would have
resulted in this case ending at trial, not at a plea." (ld. at 176)

C.

PCR Appeal

On September 26, 2011, the state filed a petition for writ of certiorari in the Supreme
Court of South Carolina on the following two issues:
1) Whether Counsel's advice was correct that involuntary manslaughter did not apply
considering the factual scenario relayed to him by his client?
2) Whether counsel's advice was correct that involuntary manslaughter did not apply
considering the new version of events as told at the PCR hearing?
(Dkt. No. 11-3 at 3.) The Supreme Court of South Carolina transferred the case to the South
Carolina Court of Appeals. Robert Dudek represented Petitioner at this stage. On February 11,
2015, the South Carolina Court of Appeals reversed the PCR court in a one-and-a-half page
opinion. The Court of Appeals said the PCR court erred when it failed to consider that Petitioner
was a felon in possession of a weapon at the time of the incident. (Dkt. No. 11-9 at 4-5.) The
Court of Appeals said Petitioner's felonious possession of a weapon disqualified him from an
involuntary manslaughter jury instruction under the first definition of involuntary manslaughter
which excludes those engaged in a felony. See State v. Sams, 764 S.E.2d at 514. The Court of
Appeals denied Petitioner's petition for a rehearing on March 19, 2015. (ld. at 14.) Petitioner
then filed a petition for writ of certiorari in the South Carolina Supreme Court. (Dkt. No. 11-10.)
On November 19, 2015, the South Carolina Supreme Court denied that petition to review the
decision of the Court of Appeals. (Dkt. No. 11-12.)

D.

Petition for Writ of Habeas Corpus

In his habeas petition to this Court, Petitioner has alleged that his defense counsel was
ineffective when he failed to advise Petitioner that he could receive an involuntary manslaughter
jury instruction at trial. As a second ground for relief tied to the same issue, Petitioner argues that
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he did not enter his plea knowingly and intelligently due to the incorrect advice he received from
counsel. (Dkt. No.1.) Respondent filed a motion for summary judgment and a return and
memorandum to the petition. (Dkt. Nos. II, 12.)

II.

Legal Standard
A.

Pro Se Petitions

Petitioner brought this action pro se, so the Court will liberally construe his pleadings.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per

curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those
drafted by attorneys. Haines, 404 U.S. at 520.

B.

Habeas Corpus

Claims that were adjudicated on the merits in a state court proceeding cannot be the basis
for federal habeas corpus relief unless the challenged decision was "contrary to, or involved an
unreasonable application of clearly established federal law as decided by the Supreme Court of
the United States," or "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)(1), (2). Section 2254(d)
codifies the view that habeas corpus is a '''guard against extreme malfunctions in the state
criminal justice systems,' not a substitute for ordinary error correction through appeal."
Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307,

332 n.5 (1979) (Stevens, J., concurring in judgment». "A state court's determination that a
claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on
the correctness of the state court's decision." fd. at 101 (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004».

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C.

Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees defendants the right
to effective assistance of counsel in criminal prosecutions. McMann v. Richardson, 397 U.S.
759, 771 n.l4 (1970). To make a case for habeas relief on the grounds of ineffective assistance of
counsel at trial, a petitioner must show (1) that his trial counsel's performance fell below an
objective standard of reasonableness, and (2) that a reasonable probability exists that but for
counsel's error, the result of the proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 694 (1984). The Court must apply a "strong presumption" that trial counsel's
representation fell within the "wide range of reasonable professional assistance," and the errors
must be "so serious that counsel was not functioning as the counsel guaranteed the defendant by
the Sixth Amendment." Harrington, 562 U.S. at 104.
The Supreme Court has cautioned that '''[s]urmounting Strickland's high bar is never an
easy task[,]' ... [e]stablishing that a state court's application of Strickland was unreasonable
under § 2254(d) is all the more difficult." Harrington, 562 U.S. at 105 (quoting Padilla v.
Kentucky, 559 U.S. 356, 371 (2010)). When evaluating an ineffective assistance of counsel

claim, the petitioner must satisfy the highly deferential standards of 28 U.s.C. § 2254(d) and
Strickland "in tandem," making the standard "doubly" more difficult. Id. In such circumstances,

the "question is not whether counsel's actions were reasonable," but whether "there is any
reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Courts are reluctant to characterize tactical or strategic decisions by trial counsel as
ineffective assistance. Carter v. Lee, 283 F.3d 240,249 (4th Cir. 2002). A "strong presumption"
exists that counsel's actions were the function of trial tactics and not "sheer neglect."
Harrington, 562 U.S. at 109. This rule, however, is not absolute where the purported strategic

decision is based upon an error or ignorance of the law by trial counsel. Wilson v. Mazzuca, 570
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F.3d 490, 502 (2d Cir. 2009) (omissions based upon "oversight, carelessness, ineptitude or
laziness" cannot be explained as "trial strategy") (quoting Eze v. Senkowski, 321 F.3d 110, 112
(2d Cir. 2003); Ramonez v. Berghuis, 490 F.3d 482, 488 (6th Cir. 2007) (a strategic choice made
without a professionally competent investigation of the Petitioner's options is "erected upon ... a
rotten foundation" and is not entitled to deference) (quoting Towns v. Smith, 395 F.3d 251, 258
(6th Cir. 2005).
To satisfy the prejudice prong of Strickland in the context of a guilty plea, a prisoner
must only show that "there is a reasonable probability that, but for counsel's errors, [the
prisoner] would not have pleaded guilty and would have insisted on going to trial." Hill v.

Lockhart, 474 U.S. 52,59 (1985).

D.

Procedural Bar

Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. §
2254. This statute permits relief when a person "is in custody in violation of the Constitution or
laws or treaties of the United States" and requires that a petitioner present his claim to the state's
highest court with authority to decide the issue before the federal court will consider the claim.

Id. The separate but related theories of exhaustion and procedural bypass taken together require a
habeas petitioner to submit his claims for relief to the state courts first. This Court will dismiss a
habeas corpus petition filed before the petitioner has exhausted available state court remedies or
otherwise bypassed seeking relief in state courts absent the limited circumstances detailed below.
1.

Exhaustion

Under 28 U.S.C. § 2254, Petitioner must exhaust his state court remedies before seeking
habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A). In South Carolina, a person in custody may
attack the validity of his conviction in two primary ways: (1) through a direct appeal, or (2) by
filing an application for PCR. State law requires a petitioner to state all grounds for relief in the
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direct appeal or PCR application. S.c. App. Ct. R. 203; S.C. Code Ann. § 17-27-90. If the PCR
court fails to address a claim as required by S.C. Code Ann. § 17-27-80, counsel for the applicant
must move to alter or amend the judgment. S.C. R. Civ. P. 59(e). Failure to do so will result in
the application of a procedural bar to that claim by the Supreme Court of South Carolina. Marlar
v. State, 653 S.E.2d 266 (S.C. 2007). Further, strict deadlines govern direct appeals and PCR
applications in South Carolina courts. A notice of direct appeal must be filed and served on all
respondents within ten days after the sentence is imposed or after receiving written notice of
entry ofthe order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application must be
filed within one year of jUdgment, or if there is an appeal, within one year of the appellate court
decision. S.C. Code Ann. § 17-27-45.
If any avenue of state relief is still available, the petitioner must proceed through the state
courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716
F.2d 1059,1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in
a federal petition for habeas relief, a petitioner may present only those issues that were presented
to the Supreme Court of South Carolina through direct appeal or through an appeal from the
denial of a PCR application, regardless of whether the Supreme Court actually reached the merits
of the claim.
2.

Procedural Bypass

The doctrine of procedural bypass, sometimes referred to as procedural bar or procedural
default, applies when a petitioner seeks habeas corpus relief based on an issue he can no longer
pursue in state court because he failed to raise it at the appropriate time in state court. In such a
situation, the petitioner has bypassed his state remedies, so he is procedurally barred from raising
the issue in a federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can

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occur at any level of state proceedings if a state has procedural rules that bar its courts from
considering claims not raised in a timely fashion. See id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second
appeal that could have been raised at an earlier time. See S.c. Code Ann. § 17- 27-90; Aice v.
State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner fails to file a direct appeal or a PCR

application before the filing deadlines have passed, he is barred from proceeding in state court.
S.C. App. Ct. R. 203(d)(3), 243. If the state courts have applied a procedural bar to a claim
because of an earlier default in the state courts, the federal court honors that bar. See Reed v.
Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995).

3.

Cause and Prejudice Exception

The exhaustion requirement is not jurisdictional. If a federal habeas petitioner can show
both (1) '''cause' for noncompliance with the state rule" and (2) '''actual prejudice resulting from
the alleged constitutional violation[,]," the federal court may consider the claim. Smith, 477 U.S.
at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977». A petitioner may prove cause ifhe
can demonstrate ineffective assistance of counsel relating to the default, show an external factor
hindered compliance with the state procedural rule, or demonstrate the novelty of a particular
claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably
available to the petitioner's counsel. Murray v. Carrier, 477 U.S. 478, 487-89; Reed, 468 U.S. at
16. Absent a showing of "cause," the court is not required to consider "actual prejudice." Turner
v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause,

he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual
prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107,
134-35 (1982).

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Absent a showing of cause and actual prejudice, a federal court is barred from
considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion
requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S.
288,297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).
III.

Analysis
Petitioner pursues two separate grounds for relief in his petition that turn on the same

question: whether Petitioner's counsel correctly advised petitioner that the best jury instruction
he could receive at trial was for voluntary manslaughter:
Ground One: Trial counsel was ineffective in failing to advise Petitioner that
evidence of a struggle between a defendant and a victim over a weapon is
sufficient for submission of an involuntary manslaughter instruction to the jury.
Ground Two: Petitioner's plea was not knowingly and intelligently entered into in
violation of the Sixth and Fourteenth Amendments to the United States
Constitution as well as Article I, Section 14 of the South Carolina Constitution.
A.

Ground One

Respondent contends that the South Carolina Court of Appeals' determination that
Petitioner would not have been entitled to an involuntary manslaughter jury instruction at trial is
a state court determination that turns purely on an issue of state law so is not reviewable in a
federal habeas action. (Dkt. No. 11 at 17-18) (citing Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) ("[I]t is not the province ofa federal habeas court to reexamine state-court determinations
on state-law questions. In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.")).
Petitioner, however, has framed his claim as one of ineffective assistance of counsel rather than a
direct challenge to a determination of a state law issue; though, in this case, the former
necessarily implicates the latter. When the constitutional right at issue concerns ineffective

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assistance of counsel, the Court "may consider state issues that counsel did not pursue in light of

Strickland's requirements." Salyer v. Sternes, 34 F. App'x 238, 240 (7th Cir. 2002). However, "§
2254 does not permit us to reexamine state-court interpretations of state law." Id. at 241.
The PCR court granted relief because it found that Petitioner's counsel was ineffective
when he advised Petitioner that the best he could get at trial was a voluntary manslaughter jury
instruction. Specifically, the PCR court determined that evidence of a struggle over a weapon
was likely sufficient to obtain an involuntary manslaughter charge in South Carolina and, in the
alternative, that the evidence could have supported an involuntary manslaughter jury instruction
under the first definition of involuntary manslaughter.
The South Carolina Court of Appeals reversed, finding that evidence of a struggle over a
weapon is insufficient to obtain an involuntary manslaughter jury instruction when Petitioner's
conduct did not meet the first definition of involuntary manslaughter which (stated correctly)
excludes those engaged in a felony. Under § 2254, this Court cannot reexamine the South
Carolina court's interpretation of state law, in this case that Petitioner would not have been
entitled to an involuntary manslaughter jury instruction based on the first definition of
involuntary manslaughter in light of the factual scenarios presented at the PCR hearing.
Viewing the Court of Appeals' decision through the lens of ineffective assistance of counsel, this
Court finds that the Court of Appeals did not make an unreasonable determination of the facts
and properly applied its own state law to the facts. Further, the Court of Appeals did not
unreasonably apply federal law when it reversed the PCR court's decision. For this reason, this
Court grants summary judgment for Respondent on Ground One and dismisses the petition
insofar as the petition asked this Court to determine whether Petitioner would have been eligible

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for an involuntary manslaughter jury instruction based on the first definition of involuntary
manslaughter and evidence that there was a struggle over the murder weapon.
Liberally construed, Petitioner's habeas petition also asks this Court to determine whether
his counsel was ineffective for failing to advise him that the evidence could support an
involuntary manslaughter jury instruction at trial under the second definition of involuntary
manslaughter. Several decisions by South Carolina courts - some cited by Petitioner in his pro se
briefings - indicate that felonious possession of a firearm may not disqualifY a defendant from
receiving an involuntary manslaughter jury instruction at trial under the second definition of
involuntary manslaughter, particularly when there is evidence of a struggle over the murder
weapon. State v. Light, 664 S.E.2d 465 (S.C. 2008); Tisdale v. State, 662 S.E.2d 410 (S.C.
2008); State v. Mekler, 664 S.E.2d 477 (S.C. 2008); State v. Crosby, 584 S.E.2d 110 (S.C. 2003);
State v. Burriss, 513 S.E.2d 104 (S.C. 1999); Casey v. State, 409 S.E.2d 391 (S.C. 1991); State v.
Battle, 757 S.E.2d 737 (S.c. Ct. App. 2014); State v. Brayboy, 691 S.E.2d 482 (S.C. Ct. App.

2010). Several of these cases involved fact-intensive inquiries into the nature of the struggle over
a gun. In some of these cases, the defendant was in felonious possession of a firearm at the time
of the incident but was still eligible to receive a jury instruction on involuntary manslaughter.
The case law on this point is somewhat counter-intuitive because South Carolina courts have
sometimes found that defendants involved in a struggle over a gun were engaged in a lawful act
due to the struggle eventhough they were unlawfully armed at the time of the incident.
On PCR appeal, the Court of Appeals explicitly stated that it did not consider whether
Petitioner's conduct could have supported an involuntary manslaughter instruction at trial under
the second definition of involuntary manslaughter because the peR court had not considered that

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definition. 3 (Dkt. No. 11-9 at 4 n.1) For this reason, this Court finds that Petitioner has not
properly exhausted his state court remedies on this issue. § 2254(b)(1)(A).

B.

Ground Two

Petitioner has also argued that he did not enter his plea knowingly and intelligently, in
violation of the Sixth and Fourteenth Amendments to the United States Constitution as well as
Article I, Section 14 of the South Carolina Constitution. Petitioner's argument that his guilty plea
was involuntary in violation of the South Carolina Constitution is not cognizable for federal
review. "In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States." McGuire, 502 U.S. at 68.
Respondent argues that Plaintiff procedurally defaulted the claim that his guilty plea was
involuntary in his state court proceedings. (Dkt. No. 11 at 12-14.) Although Ground Two was
raised to the PCR court, the PCR court did not rule on the issue in its order, and Petitioner failed
to file a Rule 59(e) motion to preserve the issue for appellate review. As with Ground One, this
Court will grant summary judgment for Respondent on Ground Two with regard to whether the
Court of Appeals correctly determined that Petitioner could not have received an involuntary
manslaughter jury instruction at trial under the first definition if involuntary manslaughter even
though there was evidence of a struggle over the murder weapon. However, to the extent
Petitioner is asking this Court to consider whether Petitioner's guilty plea was involuntary
because he was not aware that he could receive an involuntary manslaughter jury instruction
3 Petitioner seeks relief on the theory that he would have been entitled to an involuntary
manslaughter jury instruction at trial. Ironically, Petitioner has not yet had the opportunity to
have the state courts consider whether he might have been entitled to an involuntary
manslaughter jury instruction at trial under the second definition of involuntary manslaughter
because the PCR court granted relief based on the first definition. The government appealed that
decision to the Court of Appeals, which reversed it. Petitioner was granted PCR on his
ineffective assistance of counsel claim; therefore, he had no reason to file a Rule 59(e) motion to
specifically preserve this issue at that time.

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based on the second definition of involuntary manslaughter, that issue has not been exhausted in
state courts.

IV.

Conclusion
For the foregoing reasons, this Court GRANTS Respondent's motion for summary

judgment and DENIES the habeas petition.

V.

Certificate of Appealability
The governing law 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 the standard by demonstrating that reasonable jurists
would find this court's assessment of his constitutional claims 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. Therefore, a certificate of appealability is DENIED.

AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
February 27,2017
Charleston, South Carolina

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