Petition for Writ of Certiorari — Corey Jawan Robinson, Petitioner v. Joseph McFadden, Warden

Supreme Court briefFeb 21, 2018

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LEGAL MAIL

406

•

FILED: February 1, 2018

UNITED STATES COURT OF APPEALS

•

FOR THE FOURTH CIRCUIT

No. 17-7050

(5: 14-cv-04718-JMC)

COREY JAWAN ROBINSON

Petitioner Appellant

•

•.• -

JOSEPH MCFADDEN, Warden

Respondent Appellee

JUDGMENT

In accordance with the decision of this court, a certificate of appealability is

denied and the appeal is dismissed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

-Is! PATRICIA S. CONNOR, CLERK

Appeal: 17-7050

Doc: 25

Filed: 02/01/2018

Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-7050

COREY JAWAN ROBINSON,

Petitioner Appellant,

JOSEPH MCFADDEN, Warden,

Respondent Appellee.

Appeal from the United States District Court for the District of South Carolina, at

Orangeburg. J. Michelle Childs, District Judge. (5:14-cv-04718-JMC)

Submitted: January 30, 2018

Decided: February 1, 2018

Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Corey Jawán Robinson, Appellant Pro Se. Donald John Zelenka, Deputy Attorney

General, William Edgar Salter, III, Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

'lO(o___

MISJIT1UI

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-7050

COREY JAWAN ROBINSON,

Petitioner Appellant,

JOSEPH MCFADDEN, Warden,

Respondent Appellee.

Appeal from the United States District Court for the District of South Carolina, at

Orangeburg. J. Michelle Childs, District Judge. (5:14-cv-047 1 8-JMC)

Submitted: January 30, 2018

Decided: February 1, 2018

Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Corey Jawan Robinson, Appellant Pro Se. Donald John Zelenka, Deputy Attorney

General, William Edgar Salter, III, Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

l-O7

PER CUfflAM:

Corey Jawan Robinson seeks to appeal the district court's orders accepting in part

the first recommendation of the magistrate judge and accepting the second

recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254

(2012) petition. The orders are not appealable unless a circuit justice or judge issues a

certificate of appealability.

28 U.S.C. § 2253(c)(1)(A) (2012).

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) (2012). When the district court denies relief on the

merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would

find that the district 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 that 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.

We have independently reviewed the record and conclude that Robinson has not

made the requisite showing. Accordingly, we deny as moot Robinson's motion to stay

the appeal pending resolution of his Fed. R. Civ. P. 59(e) motion, deny his motion for a

certificate of appealability, and dismiss the appeal. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

DISMISSED

5:14-cv-04718-JMC Date Filed 09/30/16

Entry Number 71 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

ORANGEBURG DIVISION

Corey Jawan Robinson,

Civil Action No.: 5:14-cv-04718-JMC

Petitioner,

ORDER AND OPINION

Joseph McFadden, Warden,

Respondent.

Petitioner Corey Jawan Robinson ("Petitioner"), a state prisoner, filed this pro se Petition

for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging thirteen numbered Grounds for

relief. (ECF No. 1.) In Grounds Nine, Ten, and Eleven, respectively, Petitioner alleges that the

trial court erred by not granting his motion to suppress evidence, by not granting his motion for

directed verdict on the ground that the prosecution had failed to prove his actual or constructive

possession of the drugs at issue in his case, and by allowing him to appear pro se at trial when he

had not waived his right to counsel. (Id. at 19-21.) In Ground Seven, Petitioner alleges that his trial

counsel rendered ineffective assistance of counsel ("IAC") by failing to properly argue a motion

to suppress and to request a Franks' hearing. (Id. at 17.) In Grounds One, Two, Three, and Four,

respectively, Petitioner alleges that his counsel in his direct appeal rendered TAC by failing to file

a merits brief on the issues of whether drugs used as evidence in Petitioner's trial should have been

suppressed, whether a directed verdict was warranted because Petitioner was entitled to flee from

an arresting officer who lacked reasonable suspicion to detain him, whether a directed verdict was

warranted because of the prosecution's failure to prove actual or constructive possession of the

'Franks v. Delaware, 438 U.S. 154 (1978).

5:14cv04.718JMCDate Filed 09/30/16 Entry Number 71 Page 2 of 10

drugs as an essential element of the crime, and whether the trial court abused its discretion in

admitting physical evidence over Petitioner's objection. (Id at 6-14.) In Grounds Five, Six, Eight,

Twelve, and Thirteen, respectively, Petitioner alleges that his counsel during post-conviction relief

("PCR") proceedings rendered IAC by failing to subpoena a video recording from a police car's

camera, request a Franks hearing, and move for a continuance; failing to preserve prosecutorial

misconduct and newly-discovered-evidence claims by filing a S.C. App. Ct. R. 59(e) motion;

failing to conduct a substantial investigation of the record and amend the PCR application to

include claims that the trial court erred in not granting Plaintiff's motion for a new trial and that

appellate counsel rendered JAC by not raising this issue in a merits brief; failing to conduct a

substantial investigation of the record after new evidence demonstrated prosecutorial misconduct

and a Brady2 violation; and failing to conduct a substantial investigation of the record after new

evidence demonstrated prosecutorial misconduct under American Bar Association standards. (Id.

at 15-16, 18, 22-23.)

This matter is before the court on Respondent Joseph McFadden's ("Respondent") Motion

for Summary Judgment (ECF No. 47•)3 In accordance with 28 U.S.C. § 636(b) and Local Rule

73.02 D.S.C., the matter was referred to United States Magistrate Judge Kaymani D. West, for

pre-trial handling. On March 2, 2016, the Magistrate Judge issued a Report and Recommendation

recommending the court grant Respondent's Motion for Summary Judgment and deny the Petition.

(ECF No. 58.) This review considers Petitioner's Objections to the Report and Recommendation

Brady v. Maryland, 373 U.S. 83 (1963).

Respondent filed an initial Return and Motion for Summary Judgment on March 30, 2015. (ECF

Nos. 23, 24.) The Magistrate Judge instructed Respondent to withdraw the initial filings and refile them so that certain omitted pages would be contained in the re-filed Return. (ECF No. 42.)

Respondent re-filed the Return and Motion for Summary Judgment on November 25, 2015. (ECF

Nos. 46, 47.)

5i4-cv04718JMC .—Date Filed 09/30/16 Entry Number 71 Page 3of 10

t_IIo_

("Objections") (ECF No. 64), Respondent's response thereto (ECF No. 66), and Petitioner's reply

(ECF No. 68). For the reasons set forth herein, the court ACCEPTS IN PART and REJECTS IN

PART the Magistrate Judge's Report and Recommendation (ECF No. 58), GRANTS IN PART

and DENIES IN PART Respondent's Motion for Summary Judgment (ECF No. 46), DENIES

Grounds One through Nine and Eleven through Thirteen of the Petition (ECF No. 1), and

REMANDS the matter to the Magistrate Judge.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The court concludes upon its own careful review of the record that the factual and

procedural summation in the Report and Recommendation is accurate, except in one respect

discussed below, and, aside from this exception, the court adopts the summary. The court will only

recite herein facts pertinent to the analysis of Petitioner's Objections.

The Magistrate Judge determined that Petitioner's claims under Grounds Two, Three, Four,

Five, Six, Seven, Eight, Ten, Twelve, and Thirteen are procedurally barred because Petitioner has

failed to exhaust the claims in state court, and the claims could no longer be raised there. (ECF

No. 58 at 24.); see generally Woodford v. Ngo, 548 U.S. 81(2006); Hedrick v. True, 443 F.3d 342

(4th Cir. 2006). With respect to Grounds Two, Three, Four, Seven, and Ten, the Magistrate Judge

determined that, although Petitioner asserted that his failure to raise the claims should be excused

under Martinez,4 that case was of no aid to Petitioner because he failed to assert that the cause for

his failure to raise the claims was his PCR counsel's error. (ECF No. 58 at 25.) With respect to

Grounds Five, Six, Eight, Twelve, and Thirteen, she determined that Martinez did not apply

because none of the underlying defaulted claims involved trial counsel's IAC. (Id. at 26-28.) The

Magistrate Judge further found with respect to all of these Grounds that Petitioner had otherwise

Martinez v. Ryan,

U.S.

132 S. Ct. 1309 (2012).

5:14-cv-04718-JMC Date Filed 09/30/16

Entry Number 71

Page 4 of 10

failed to demonstrate that cause and prejudice or a miscarriage of justice excused his procedural

default. (Id. at 25-26.)

The Magistrate Judge determined that the Ground One claim should be denied on the merits

because the PCR court's decision to deny Petitioner's claim that his appellate counsel rendered

JAC by not filing a merits brief on the issue of whether the drugs at issue in his case should have

been suppressed was not an unreasonable application of clearly established federal law. (Id. at 29

(citing Williams v. Taylor, 529 U.S. 362, 398 (2000); Smith v, Robbins, 528 U.S. 259, 285 (2000);

Jones v. Barnes, 463 U.S. 745, 751-52 (1983); Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986);

Griffin v. Aiken, 775 F.2d 1226 (4th Cir. 1985); Southerland v. State, 524 S.E.2d 833, 836 (1999)).)

Regarding Petitioner's Ground Nine claim, the Magistrate Judge noted that a state trial court's

decision not to suppress evidence over Petitioner's objection based on the Fourth Amendment is

not reviewable in a § 2254 proceedings so long as the state provided a mechanism for the Fourth

Amendment argument to be heard and Petitioner's opportunity to fully and fairly present the

argument through the mechanism was not impaired. (Id. at 31 (citing Stone v. Powell, 428 U.S.

465, 489-95 (1976); Doleman v. Murphy, 579 F.2d 1258, 1265 (4th Cir. 1978)).) The Magistrate

Judge determined that, because the state provided a mechanism to address the argument and

because Petitioner was afforded an opportunity to fully and fairly present it, the claim was not

cognizable. (Id.) The Magistrate Judge determined that Petitioner procedurally defaulted his

Ground Eleven claim because he failed to raise at trial any argument regarding his waiver of his

right to counsel. (Id. at 32-33 (citing Weeks v. Angelone, 176 F.3d 249, 269 (4th Cir. 1999);

Howard v. Moore, 131 F.3d 399,420 (4th Cir. 1997); McKenzie v. Cartledge, No. 8:13-C V-02488RBH, 2014 WL 3919711, at *2 (D.S.C. Aug. 11, 2014)).)

514-04i18MC Date Fil ed 09/30/16 Entry Number 71 Page 5 of 10

II. LEGAL STANDARD AND ANALYSIS

Standard of review

The Magistrate Judge's Report and Recommendation is made in accordance with 28 U.S.C.

§ 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge

makes only a recommendation to this court. The recommendation has no presumptive weight. The

responsibility to make a final determination remains with this court. See Matthews v. Weber, 423

U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those

portions of the Report and Recommendation to which specific objections are made, and the court

may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation, or

recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).

The exhaustion requirement

"Before seeking federal habeas review of a claim, a [state prisoner] ordinarily must raise

that claim in the state court, complying with state procedural rules and exhausting available state

remedies." Gray v. Zook, 806 F.3d 783, 797-98 (4th Cir. 2015) (citing Coleman v. Thompson, 501,

U.S. 722, 750 (1991)). "It is the general rule that after issues have been properly presented on

direct appeal from a conviction to the highest state court to which resort may be had, a federal

habeas petitioner will be deemed to have fully complied with the exhaustion requirement, since

further resort to state courts may fairly be considered futile after the state's highest court has passed

on the issues presented." Thomson v. Peyton, 406 F.2d 473, 474 (4th Cir. 1968) (per curiam);

accord O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); cf Lyons v. Weisner, 247 F. App'x 440,

446 n.4 (4th Cir. 2007) (explaining petitioner "exhausted his claim by raising it on direct appeal

[even though he did not raise it in state post-conviction proceeding], which is sufficient in North

Carolina to exhaust a claim for federal habeas purposes").

5:14-cv-047.18-JMC Date Filed 09/30/16

Entry Number 71 Page 6 of 10

The South Carolina Supreme Court has held that the presentation of claims to the South

Carolina Court of Appeals, alone, is sufficient to exhaust state remedies for federal habeas corpus

review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State

Remedies in Criminal and Post—Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). In

McKennedy, the South Carolina Supreme Court specifically held that In re Exhaustion had placed

discretionary review by the South Carolina Supreme Court "outside of South Carolina's ordinary

appellate review procedure pursuant to O'Sullivan." 559 S.E.2d at 854. Accordingly, a claim

would not be procedurally barred from review in this court for failure to pursue review in the South

Carolina Supreme Court after an adverse decision in the South Carolina Court of Appeals, either

after a direct appeal or after pursuing relief in a PCR application.

In order to exhaust state remedies, a § 2254 petitioner must provide the state "the

'opportunity to pass upon and correct alleged violation of.

federal rights." Baldwin v. Reese,

541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). "To

provide the State with the necessary 'opportunity,' the [petitioner] must 'fairly present' his claim

in each appropriate state court.

. . ,

thereby alerting that court to the federal nature of the claim."

Id. "[O]rdinarily a state prisoner does not 'fairly present' a claim to a state court if that court must

read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a

federal claim." Id. at 32.

C. The court's evaluation

Although Petitioner's objections are rambling and lack clarity, because he is a pro se

litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147,

1151 (4th Cir. 1978). Even liberally construed, however, the court concludes, with one exception,

that Petitioner's objections are either conclusory, irrelevant, or merely rehash the arguments that

5:14-cv-04718-JMC Date Filed 09/30/16 Entry Number 71 Page 7 of 10

were already before the Magistrate Judge based on the state court records and the parties'

contentions contained in their memoranda, responses, and replies. Because the court perceives no

clear error in the Magistrate Judge's determinations against which Petitioner lodges only

conclusory objections, those objections must be overruled.5 Furthermore, as the remainder of

Plaintiff's objections merely repeat the evidence and arguments presented to the Magistrate Judge,

which the Magistrate Judge thoroughly considered and correctly assessed,' the court overrules

Plaintiff's objections and accepts the Magistrate Judge's Report and Recommendation without

elaboration except for the objection discussed below. See In re Brady-Zell, 756 F.3d 69, 71 (1st

Cir. 2014) ("[W]hen lower [tribunal]s have supportably found the facts, applied the appropriate

legal standards, articulated their reasoning clearly, and reached a correct result, a reviewing court

ought not to write at length merely to hear its own words resonate."); accord Moses v. Mele, 711

F.3d 213, 215-16 (1st Cir. 2013); In re Curry, 509 F.3d 735 3 735 (6th Cir. 2007); Nichols v. Reno,

124 F.3d 1376, 1378 (10th Cir. 1997).

Only one objection lodged by Petitioner warrants discussion. In his Ground Ten claim,

Petitioner alleges that the "Trial Judge erred in not granting [his] motion for direct verdict [based

on the prosecution's] failure to prove actual or constructive possession [of the drugs at issue]."

(ECF No. 1 at 20.) The Magistrate Judge determined that Petitioner failed to exhaust this claim by

The vast majority of these conclusory objections involve Petitioner's unsupported assertions that

he demonstrated cause and prejudice sufficient to excuse his procedurally defaulting 11 of his 13

claims.

6 The vast majority of these objections involve arguments that the Magistrate Judge incorrectly

determined that Petitioner procedurally defaulted 11 of his 13 claims by failing to raise them to

the highest state court to adjudicate his direct appeal or his PCR proceeding. His remaining

arguments regarding the two claims that the Magistrate Judge addressed on the merits either were

correctly rejected by the Magistrate Judge or do not challenge her reasons for recommending

denial.

5:14-cv-04718-JMC Date Filed 09/30/16 Entry Number 71 Page 8of10

not raising it in the appropriate state court. However, Petitioner objects to this determination,

arguing that he raised the claim on direct appeal. (ECF No. 68 at 2 (citing ECF No. 46-2 at 8-20).)

In his pro se brief to the South Carolina Court of Appeals—on which the Magistrate Judge relied

in determining that Petitioner had exhausted claims under Grounds Nine and Eleven (ECF No. 58

at 24)—Plaintiff stated the issue on appeal:

The lower court erred in allowing arresting officer to make an illegal

arrest without probable cause, which result from illegal detention, illegal

search and illegal seizure of an unlawful arrest and denial of motion to

suppress. St ate failed to prove actual possession by defendant of crack cocaine

and marijuana found in bag on ground near where defendant was

apprehended, state failed to prove constructive possession by defendant of

crack cocaine and marjuana, defendant was entitled to judgment ofacqittal

Appellant raise the facts, errors and prejudice on the grounds of false

testimonies of witnesses, grounds of violation of motion in limine, hearsay

evidence and money as evidence. The lower court erred in not granting

appellant motion to quash the warrants and the defective of the COR code in

the indictments. Errors in appellant sentencing sheet for possession with intent

to distribute cocaine base.

(ECF No. 46-2 at 8 (emphasis added).) In the argument section of the brief, Petitioner isolated the

claim by setting forth the italicized language above as the header of a separate argument. (Id at

12). The court concludes, based on this language, that Petitioner, in fact, raised the claim contained

in Ground Ten in his pro se brief filed in his direct appeal.

The court further concludes that, by raising the Ground Ten claim on direct appeal,

Petitioner satisfied the exhaustion requirement for the claim. First, he received an adverse ruling

on the claim from the South Carolina Court of Appeals (ECF No. 46-2 at 23), such that he

presented the claim to the highest state court necessary for purposes of exhaustion. See

McKennedy, 559 S.E.2d at 854; In re Exhaustion, 471 S.E.2d 454. Petitioner fairly presented the

claim by placing it squarely in the statement of the issue and separately addressing it in a subsection

of his prose appellate brief. See Baldwin, 541 U.S. at 29. Moreover, the claim Petitioner presented

LI 15

5l4cvQ471BJM

Date Filed 09/3Q/16 Entry Number 71Page 9 of 10

was one for a violation of federal constitutional law. See West v. Wright, 931 F.2d 262, 266 (4th

Cir. 1991) ("Any challenge to the sufficiency of the evidence to convict in a state prosecution is

necessarily a due process challenge to the conviction."), rev 'd on other grounds Wright v. West,

505 U.S. 277 (1992). Accordingly, Petitioner satisfied the exhaustion requirement, and denial

based on failure to exhaust is inappropriate.

The court notes that Respondent moved for summary judgment with respect to the Ground

Ten claim on various grounds, some procedural and some merits-based (see ECF No. 46 at 22,

54.), and that the Report and Recommendation does not contain a description of the factual and

procedural background from which resolution on these grounds easily could be had. The court also

notes that both parties' submissions with respect to the Ground Ten claim are rather terse compared

to their discussion on other claims. The court believes it is in the interests of expeditious

adjudication for Respondent's summary judgment motion to be denied without prejudice as to

Ground Ten so that it may refile the motion and the court may have more fully developed argument

on the issue.

III. CONCLUSION

Upon careful consideration of the entire record, the court ACCEPTS IN PART and

REJECTS IN PART the Magistrate Judge's Report and Recommendation (ECF No. 58).

Respondent's Motion for Summary Judgment (ECF No. 47) is GRANTED IN PART with respect

to Grounds One through Nine and Eleven through Thirteen and DENIED IN PART WITHOUT

PREJUDICE with respect to Ground Ten. Grounds One through Nine and Eleven through

Thirteen of Petitioner's Petition for a Writ of Habeas Corpus (ECF No. 1) are DENIED. This

matter is REMANDED to the Magistrate Judge for consideration of any further motions and

briefings in accordance with this order.

:14-cv-04718-JMC Date Filed 09/30/16 Entry Number 71 Page 10 of 10

Certificate of Appealability

The law governing certificates of appealability 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 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.

IT IS SO ORDERED.

United States District Judge

September 30, 2016

Columbia, South Carolina

—AppeaI-17-7050 —Doc-25----- Filed, C2I0ii2O18_Pg:2oL2

PER CURIAM: