Whitner v. Cartledge

Filing 58

OPINION AND ORDER ADOPTING 29 ON REPORT AND RECOMMENDATION, granting Respondent's 15 Motion for Summary Judgment. Petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is dismissed with prejudice. A certificate of appealability is denied. Signed by Honorable Cameron McGowan Currie on 7/5/2017. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Samuel Lamont Whitner,

C/A. No. 8:16-1392-CMC-JDA

Petitioner,
v.
Opinion and Order
Warden Larry Cartledge,
Respondent.

This matter is before the court on Petitioner’s pro se application for writ of habeas corpus,
filed in this court pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent filed a motion for
summary judgment, as well as a return and memorandum of law on August 15, 2016. ECF Nos.
15, 16. A Roseboro Order was mailed to Petitioner on August 16, 2016, advising Petitioner of the
importance of a dispositive motion and the need for Petitioner to file an adequate response. ECF
No. 17. After two extensions of time to respond, Petitioner filed a response in opposition on
December 1, 2016. ECF No. 26. Respondent filed a reply on December 7, 2016. ECF No. 28.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2), DSC, this matter
was referred to United States Magistrate Judge Jacquelyn D. Austin for pre-trial proceedings and
a Report and Recommendation (“Report”). On January 30, 2017, the Magistrate Judge issued a
Report recommending that Respondent’s motion for summary judgment be granted. ECF No. 29.
The Magistrate Judge advised Petitioner of the procedures and requirements for filing objections
to the Report and the serious consequences if he failed to do so. Petitioner received two extensions
of time to file objections to the Report, but failed to do so within the time period. The court
thereafter entered an Order adopting the Report, granting the Government’s motion for summary

judgment, and dismissing the matter with prejudice. ECF No. 39. However, Petitioner, now
represented by counsel, then filed a motion for leave to file objections noting the deadline for
objections was miscalculated and resulted in Petitioner missing the previous deadline. ECF No.
42. The court granted this motion, vacated the Order at ECF No. 39, and allowed Petitioner
fourteen (14) days from entry of that Order to file his objections. ECF No. 44. Counsel for
Petitioner timely filed objections on May 9, 2017. ECF No. 48. Respondent filed a reply on May
23, 2017. ECF No. 56.
Standard
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
court. See Matthews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a 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 to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in the absence of a timely filed objection, a district court need not conduct a de novo review, but
instead must only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.”) (citation omitted).
Discussion
Petitioner, through counsel, offers objections to each finding of the Magistrate Judge,
arguing grounds one, two, and six are not procedurally defaulted as Petitioner can show cause and
actual prejudice; Petitioner should be granted relief on grounds three and four because the PCR
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court’s decision was unreasonable; and Petitioner can show cause for default of ground five
because of ineffective appellate counsel. ECF No. 48. Respondent’s reply to objections argues in
favor of adopting the Magistrate Judge’s Report on all grounds. ECF No. 56.
a. Procedural Default
On grounds one and two, Petitioner argues he was denied due process “under the
Fourteenth and Fourth Amendments of the U.S. Constitution when the prosecutor improperly
moved for an interlocutory appeal,” and under the Fourteenth Amendment when he was “subjected
to an unlawful wiretap.”1 ECF No. 48 at 5. The Magistrate Judge found these grounds to be
procedurally defaulted as they were not raised in Petitioner’s state appeal, and he failed to show
sufficient cause to excuse the default. ECF No. 29 at 21. Petitioner argues these denials of his
constitutional due process rights resulted in a fundamental miscarriage of justice, and therefore “a
federal habeas court may grant Petitioner’s writ of habeas corpus even in the absence of a showing
of cause for the procedural default.” ECF No. 48 at 6.
Grounds one and two were not presented to the state appeals court, and therefore are
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 750 (1991) (When “a state prisoner
has defaulted his federal claims in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”).

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While Petitioner claims in his introduction ground six should also be excused from default, he
makes no specific argument in the discussion section regarding this ground. Ground six was raised
for the first time in this § 2254 petition, and therefore is procedurally defaulted as not presented to
a state court.
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Although there are exceptions to this rule (i.e., for ineffective assistance of trial counsel), none
applies to grounds one and two here. While Petitioner argues he establishes a fundamental
miscarriage of justice through alleged deprivations of his due process, and therefore need not show
cause, a petitioner must show “a constitutional violation has probably resulted in the conviction of
one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). Petitioner fails to
meet this standard of actual innocence. Schlup v. Delo, 513 U.S. 298, 327 (1995) (“To establish
the requisite probability, the petitioner must show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.”); Bousley v. United States, 523
U.S. 614, 623 (1998) (“[A]ctual innocence means factual innocence, not mere legal
insufficiency.”). As Petitioner cannot make the requisite showing, grounds one and two are
procedurally defaulted.2
b. Ineffective assistance of trial counsel
In grounds three and four, Petitioner claims his trial counsel was ineffective in failing to
preserve the record regarding the use of the audio recording (ground 3) and failing to move for a
mistrial based on the admission of the recorded conversation (ground 4). The Magistrate Judge
determined the PCR court applied the correct legal standard reasonably in finding Petitioner’s trial

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In addition to procedural default, grounds one, two, and six cannot be brought in a federal
habeas action because they challenge state law errors. See Estelle v. McGuire, 502 U.S. 62, 6778 (1991) (“[I]t is not the province of a 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.”);
Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998) (“It is black letter law that a federal court
may grant habeas relief “only on the ground that [the petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States.”).

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attorney rendered reasonably effective assistance under the Strickland standard. ECF No. 29 at
24-28; see Strickland v. Washington, 466 U.S. 668 (1984). Petitioner objects, arguing trial counsel
was deficient and such deficient performance prejudiced Petitioner, so that he meets the standard
for ineffective assistance of counsel. ECF No. 48 at 8-9. Respondent argues Petitioner “failed to
show error in the Magistrate Judge’s review.” ECF No. 56 at 5.
Although Petitioner argues his counsel’s performance was deficient under the Strickland
test, this court is no longer engaged in applying the Strickland test, but rather determining whether
the PCR court’s application of the test was unreasonable. 28 U.S.C. § 2254(d); Harrington v.
Richter, 562 U.S. 86, 100 (2011) (“Federal habeas relief may not be granted for claims subject to
§ 2254(d) unless it is shown that the earlier state court's decision was contrary to federal law then
clearly established in the holdings of this Court; or that it involved an unreasonable application of
such law; or that it was based on an unreasonable determination of the facts in light of the record
before the state court.”). Therefore, in ineffective assistance of counsel claims, the “pivotal
question is whether the state court’s application of the Strickland standard was unreasonable.”
Harrington, 562 U.S. at 101. “A state court must be granted a deference and latitude that are not
in operation when the case involves review under the Strickland standard itself.” Id.
The court agrees with the Magistrate Judge regarding the state court’s analysis of
effectiveness of Petitioner’s trial counsel. The PCR court applied the correct legal standard from
Strickland, and the application was reasonable. The PCR court analyzed the issue in detail, finding
trial counsel was not ineffective regarding the audio recordings or mistrial. The facts regarding
counsel’s representation show he strenuously pursued exclusion of the audio recording. Therefore,
the PCR court’s decision was not unreasonable and will not be disturbed.

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c. Ineffective assistance of appellate counsel
Petitioner alleges his PCR counsel erred in failing to file a Rule 59(e) motion with the PCR
court when it failed to specifically rule on the issue raised in ground five. Petitioner cites Martinez
v. Ryan, 566 U.S. 1 (2012) for the proposition ineffective assistance of trial counsel can provide
“cause” to excuse procedural default, and argues Martinez has been extended in cases of
ineffective assistance of appellate counsel. ECF No. 48 at 7 (citing Han van Nguyen v. Curry, 736
F.3d 1287, 1293 (9th Cir. 2013). However, this argument is foreclosed by the Supreme Court’s
ruling in Davila v. Davis, __ S. Ct. __, 2017 WL 2722418, at *3 (June 26, 2017) (“Because a
prisoner does not have a constitutional right to counsel in state postconviction proceedings,
ineffective assistance in those proceedings does not qualify as cause to excuse a procedural
default.”). Therefore, ground five is procedurally defaulted.
Conclusion
After a de novo review of the entire record, the applicable law, the Report and
Recommendation of the Magistrate Judge, and Petitioner’s objections, the court agrees with the
conclusions of the Magistrate Judge. Accordingly, the Report and Recommendation is adopted
and incorporated by reference. Respondent’s motion for summary judgment is granted, and
Petitioner’s application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is dismissed with
prejudice.

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.
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(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of
appealability has not been met. Therefore, a certificate of appealability is denied.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
July 5, 2017

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