Petition for Writ of Certiorari — Crawley v. Maynard

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01 688 oct :5 2001

No. 01- OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

MALISSA ANN CRAWLEY,

Petitioner,

Vv.

GARY D. MAYNARD, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

LYNN M. PALTROW SUSAN FRIETSCHE

National Advocates for Counsel of Record

Pregnant Women DAVID S. COHEN

45 W. 10th Street #3F Women’s Law Project

New York, NY 10011

125 S. Ninth St. Suite 300

(212) 475-4218 Philadelphia, PA 19107

(215) 928-9801 ext. 205

C. RAUCH WISE

305 Main Street DAVID RUDOVSKY

Greenwood, SC 29646 Kairys, Rudovsky, Esptein

(864) 229-5010 & Messing

924 Cherry Street

SETH KREIMER Philadelphia, PA 19107

3400 Chestnut Street (215) 925-4400

Philadelphia, PA 19104

(215) 898-7447

113

er OOD AI OL TO RANNET

QUESTION PRESENTED

Is an application for State post-conviction review that is

pending before the U.S. Supreme Court in the form of a

petition for certiorari an “application for State post-

conviction or other collateral review” within the meaning of

28 U.S.C. § 2244(d)(2), the tolling provision of the

Antiterrorism and Effective Death Penalty Act?

LIST OF PARTIES

The Petitioner is Malissa Ann Crawley.

The Respondents are Gary D. Maynard, Director, South

Carolina Department of Corrections; Charles M. Condon,

Attorney General of the State of South Carolina; and Joan B.

Meacham, Director, South Carolina Department of

Probation, Parole aiid Pardon Services.

TABLE OF CONTENTS

QUESTION PRESENTED ..........sssssesssssssessseseeenenenenenenenensens i

LIST OF PARTIES ..........cccsscsssscsscssccssscsrscereesesssssssssessessnerers il

TABLE OF AUTHORITIES. ..........csccsssessseesneeseesreseneeseneeenes Vv

OPINIONS BELOW .........-+++ CEA, Ties oe Oo I

PE TIN ocvsenecevsssvensveccovesvecereonisceovnencteszeseesenessonsoneseones 1

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED..........::ccscceeseeesseeeeneesereeeeenees 1

STATEMENT OF THE CASE ........:cccccccesseeeseeeeseeeeeeeesneesenes 3

T, ERATOGUCHION «........cccccccpsovsessvrveescocccscsseceveseenreseeeressensees 3

II. Guilty Plea and Probation.............:scsssseseeeseeeneesereees 4

Ill. Application for State Post-Conviction Review .......... 5

IV. Federal Habeas Corpus Petition ..........::essseseeeeerereee 6

V. Statutory Framework..........ccscseseeesseseseeseseeeeesenneeees 7

REASONS FOR GRANTING THE WRIT ..........::ssssessese000 8

I. Review Is Necessary to Resolve a Split in

Authority Among Three Circuit Courts of Appeals. ..9

Il. The Fourth Circuit’s Interpretation of a Critical

Provision of AEDPA Presents an Important

Federal Question That Requires Guidance From

This COUML........ccccosecssssseccsesceseseservsersnssesssccsorsenseceserees 12

III. The Court of Appeals Decided an Important

Federal Question in a Way That Conflicts

With Two Centuries of Law From This Court

About the Nature of Its Appellate and Certiorari

I -- eneyuntueninenseorveniivetnoweyoness ee

CONCLUSION ..........cccccssscsssssscsvsssossserrcsensessccnserssseccereesseenes 22

APPENDIX TABLE OF CONTENTS

Crawley v. Catoe, 257 F.3d 395 (4th Cir. 2001)........... App. 1

Crawley v. Catoe, C/A No. 4:99-527-13BF (D.S.C.

IEE... Flee aD cnscssticnisieiccesiceaiienadamiidaicatnianeiiinn App. 13

Crawley v. Catoe, C/A No. 4:99cv527-19 (D.S.C.

PRE, EF 5 ROE CPR vitidsncicsrontvetuveitieianinewees App. 22

Crawley v. Catoe, C/A No. 4:99-52D-13BF (D.S.C.

Feb. 18, 2000) (Magistrate Judge’s Report and

DORIS cess cctv ciistaxtccersheutiilineeiaanens App. 23

Whitner v. South Carolina, 523 U.S. 1145 (1998)

(Memorandum Decision) ........:csccccrsccssessesserecrsseces App. 45

Crawley v. Evatt, No. 97-MO-117 (S.C. Dec. 1,

1997) (Memorandum Opinion) ............:::cseceeeeeees App. 46

Crawley v. Evatt, No. 94-CP-04-1280 (S.C. Ct.

Cr A Be cenit dsesiactnetsbiebdesinieatig App. 48

Crawley v. Evatt, No. 97-MO-117 (S.C. Jan. 8,

ee CD ecicisenis scsiaickcibhcitegdiidnasintiblatahuaduhitaniaciaialals App. 51

Crawley v. Catoe, No. 99-052713BD (D.S.C. Feb.

26, 1999) (Application for Habeas Corpus).......... App. 53

Crawley v. Evatt, No. 94-CP-04-1280 (S.C. Ct.

C.P. Sept. 25, 1994) (State Petition for Writ of

SE CAD sissies scisseninbincditiaiitaainiicinsiniaiiaainaies App. 63

State v. Crawley, No. 92-GS-04-01 (S.C. Ct. C.P.

Aug. 5, 1994) (Probation Revocation Order)........ App. 66

State v. Crawley, No. 92-GS-04-01 (S.C. Ct. C.P.

Fe, GTI ND Matceiserlaectictiacherstccsneiiontegs App. 69

State v. Crawley, No. 92-GS-04-01 (S.C. Ct. C.P.

Jan. 6, 1992) (Probation Order).............seeseeeeeees App. 70

State v. Crawley, No. 92-GS-04-01 (S.C. Ct. C.P.

Jan. 6, 1992) (Guilty Plea Transcript)................... App. 74

State v. Crawley, (S.C. Ct. Gen. Sess. Jan. 6, 1992)

(Indictment for Unlawful Neglect of a Child).......App. 81

TABLE OF AUTHORITIES

Cases:

Artuz v. Bennett, 531 U.S. 4 (2000).......:.::00. © seseseeeeeeee 16, 17

Booth v. Maryland, 112 F.3d 139 (4th Cir. 1997).......... 13, 14

Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999) ........ccccesceereees 16

Brady v. Maryland, 373 U.S. 83 (1963) ...sesesserereeserersees 21

Brown v. Angelone, 150 F.3d 370 (4th Cir. 1998)....... ssdioisbiicke 8

Coates v. Byrd, 211 F.3d 1225 (11th Cir. 2000) .....:sssssssceee 12

Cohens v. Virginia, 19 U.S. 264 (1821) ......seeseseereneeees 19, 20

Commissioner v. Lundy, 516 U.S. 235 (1996) .........::00+ 13, 15

County Court of Ulster County v. Allen,

* MMS TS, TOD CGT cvcscevsvncsscietstecscnsscsticetveninssnenstesiacsens 16

Duncan vy. Walker, 121 S. Ct. 2120 (2001)........ 12, 13, 14, 17

Fay v. Noia, 372 U.S. 391 (1963) ....cccsseseseeseereeeeeeeess 15, 16

Forsyth v. Hammond, 166 U.S. 506 (1897) .sssssssssssseesesseee 19

Griffith v. Kentucky, 479 U.S. 314 (1987).....ceseseseeseessees on ae

Gutierrez v. Schomig, 233 F.3d 490 (7th Cir. 2000)............ 12

Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000)............ 16

Herndon v. Lowry, 301 U.S. 242 (1937) ..ccccccsseesseeereeeeeeeeeens 21

Holmes v. Jennison, 39 U.S. 540 (1840) .......ccccccessereeeeteeeeees 21

Isham v. Randle, 226 F.3d 691 (6th Cir. 2000)..........::eeee 12

Marbury v. Madison, 5 U.S. 137 (1803) .....:eeeseeseeees 9, 19, 20

Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) ............ceeee 18

Morris v. Horn, 187 F.3d 333 (3d Cir. 1999)........:ccceceeee 9, 10

Nara v. Frank, No. 99-3364, 2001 U.S. App.

LEXIS 19340 (3d Cir. Aug. 30, 2001)............00 9,10, 11

Ott v. Johnson, 192 F.3d 510 (Sth Cir. 1999)... .ceccecceeeeeees 12

Rhine v. Boone, 182 F.3d 1153 (10th Cir. 1999)........ 9,11, 18

Russello v. United States, 464 U.S. 16 (1983) ...........004 ine

Snow v. Ault, 238 F.3d 1033 (8th Cir. 2001)........ ce eeeeeeees 11

Stokes v. District Attorney, 247 F.3d 539 (3d Cir. 2001).....11

Whitner v. South Carolina, 492 S.E.2d 777 (1997) ........... 5,6

Constitutional Provision:

oo Ge i & AY By Seen onan ee 18, 20, 21

Statutes: :

I ae salacpteipinlgdsedadesienneil 21

IE, OP 8 I scx cece srensisiessabernoanenveoyones ceoncsabamibese 17, 20

SE es at Dm EIT ia. scincdsenaconnieteiieiaciedeciesrniohiastenimmnnnias 6,9

FO ID oicesesececincerneneistivinoevenves 7, 14, 15, 16

Oe os coceservevesiesenconrunvmnenscutinend passim

I es Se Cid cstecistateiiensevacteinieinteonypodussueartnessiesetienian 16

IEE IAD ti cencvcosessicrssnsrsesestsreseeevvennsevenieton’ 16

Ts IIS «, bicstsvensaiioseavdanhnsnenictedbabaivcamnnlniebienrtinnmnanies 13

BG. PD oceviiscexeccurinucsescceveriniavdoiecectensoveborns 13,14

2B Ue. © 1257 (LOW. CO-GR. ZODE) ..-.cccsecersvcescersess ee

FRE OF TOE. ZS, TP1LG, GR, Z, FS MG TIO cvevevensessceressnversvesves 19

Act of June 25, 1948, Part IV, ch. 81, 62 Stat. 927......0....... 19

Judiciary Act of 1789, §§ 22, 25, 1 Stat. 73.0... eee 18

Judiciary Act of March 3, 1891, § 6, 26 Stat. 826................ 18

Judiciary Act of March 3, 1911, § 236, 36 Stat. 1152.......... 20

Be, I, Se Be POI un ssnsnitisiveniinterineanbanconnttesiaiinsntiiansbionia 5

Other Authorities:

Black’s Law Dictionary (7th ed. 1999) .......cceceeeeeeseeeeseees 19

A Bia: Be caciatesnstnalsioibaicacicinapncniiatnecurinbinainntntintvnnionin 12

Te ae Beis cossiicecinnivinsnicernenicinstinesiasaiccestinsinipantticttinnin 17, 21

Taft, William Howard, The Jurisdiction of the Supreme

Court Under the Act of February 13, 1925, 35 Yale

ec ED ici sacnsdennsiie dactanasaaabvaciicabienieiaapedisindpinsetembiadiorsanes 20

Wolfson, Richard F. & Kurland, Philip B., Jurisdiction

of the Supreme Court of the United States (1951).......... 20

Vili

In a decision that creates a split in authority with the U.S.

Court of Appeals for the Third Circuit and misconstrues the

nature of this Court’s certiorari jurisdiction, the U.S. Court of

Appeals for the Fourth Circuit dismissed as untimely

Petitioner -Malissa Ann Crawley’s first and only federal

petition for a writ of habeas corpus. The court below held

that the time during which Ms. Crawley was petitioning this

Court to review the substantial federal issues in her

application for State post-conviction review was not tolled by

28 U.S.C. § 2244(d)(2). Ms. Crawley now respectfully prays

that a writ of certiorari issue to review that judgment.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fourth Circuit is reported sub nom. Crawley v. Catoe at 257

F.3d 395. The opinion is set forth in the Appendix. App. 1.

The unreported opinion of the United States District Court

for the District of South Carolina is set forth in the Appendix.

App. 13. The unreported Report and Recommendation of the

Magistrate Judge for the District of South Carolina is set

forth in the Appendix. App. 23.

JURISDICTION

The opinion of the United States Court of Appeals for the

Fourth Circuit was entered on July 16, 2001. Jurisdiction in

this Court exists under 28 U.S.C. § 1254(1).

STATUTORY AND CONSTITUTIONAL

_ PROVISIONS INVOLVED

28 U.S.C. § 2244(d)(1):

A 1-year period of limitation shall apply to an application

for a writ of habeas corpus by a person in custody pursuant to

a. A TI RN TERR

the judgment of a State court. The limitation period shall run

fram.the latest.af-

(A) the date on which the judgment became final by

the conclusion of direct review or the expiration of the

time for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State

action;

was initially recognized by the Supreme Court, if the

right has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of the

claim or claims presented could have been discovered

through the exercise of due diligence.

28 U.S.C. § 2244(d)(2):

The time during which a properly filed application for

State post-conviction or other collateral review with respect

to the pertinent judgment or claim is pending shall not be

counted toward any period of limitation under this

subsection.

28 U.S.C. § 2263:

(a) Any application under this chapter for habeas corpus

relief under section 2254 must be filed in the appropriate

district court not later than 180 days after final State court

affirmance of the conviction and sentence on direct review or

the expiration of the time for seeking such review.

(b) The time requirements established by subsection (a)

shall be tolled—

(1) from the date that a petition for certiorari is filed

in the Supreme Court until the date of final disposition of

the petition if a State prisoner files the petition to secure

review by the Supreme court of the affirmance of a

capital sentence on direct review by the court of last

resort of the State or other final State court decision on

direct review;

(2) from the date on which the first petition for post-

conviction review or other collateral relief is filed until

the final State court disposition of such petition; and

(3) during an additional period not to ex: 2ed 30 days,

if-

(A) a motion for an extension of time is filed in

the Federal district court that would have jurisdiction

over the case upon the filing of a habeas corpus

application under section 2254; and

(B) a showing of good .cause_is made for the

failure to file the habeas corpus application within the

time period established by this section.

U.S. Const., Art. III, sec. 2, cl. 2:

In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State shall be a

Party, the supreme Court shall have original Jurisdiction. In

all the other Cases before mentioned, the supreme Court shall

have appellate Jurisdiction, both as to Law and Fact, with

such Exceptions, and under such Regulations as the Congress

shall make.

STATEMENT OF THE CASE

I. INTRODUCTION

On January 6, 1992, Malissa Ann Crawley was convicted

of violating South Carolina’s criminal child endangerment

statute. App. 69. Her conviction stemmed from an

unforeseeable interpretation of a statute governing the

conduct of ‘ ‘persons having legal custody of a child or

helpless person” that was read to criminalize continuing a

viable pregnancy during an active addiction. Ruling that the

statute was not intended to apply to conduct affecting fetuses,

the South Carolina Court of Common Pleas granted Ms.

Crawley’s state habeas corpus petition. App. 50. After the -

South Carolina Supreme Court reversed that decision, App.

47, and this Court denied certiorari on May 26, 1998, App.

45, Ms. Crawley filed her first and only federal habeas

petition. App. 53. That petition, dated February 26, 1999,

was filed well within one year of the conclusion of Ms.

Crawley’s pursuit of state post-conviction remedies.

II. GUILTY PLEA AND PROBATION

On November 9, 1991, Ms. Crawley gave birth to her son

Antwon in a hospital in Anderson, South Carolina. App. 3-4.

Later that month, she was arrested pursuant to section 20-7-

50 of the South Carolina Children’s Code' for having

criminally endangered Antwon while she was pregnant with

him. App. 83. Her offense consisted solely of exposing

herself while pregnant to potentially hazardous illicit drugs.

App. 83 (Indictment of January 6, 1992, charging that Ms.

Crawley had not provided her fetus “adequate shelter” in her

uterus). Ms. Crawley pled guilty to the child endangerment

charge and was sentenced to a five-year suspended sentence,

resulting in five years’ probation. App. 69.

' At the time of Ms. Crawley’s arrest and conviction, the statute read:

Any person having legal custody of a child or helpless person,

who shall, without lawful exercise, refuse or neglect to provide

the proper care and attention for such child or helpless person, so

that the life, health or comfort of such child or helpless person is

endangered or is likely to be endangered, shall be guilty of a

misdemeanor and shall be punished within the discretion of the

circuit court.

S.C. Code Ann. § 20-7-50 (1981).

In 1994, Ms. Crawley’s probation was revoked when she

pled guilty to a charge of criminal domestic violence

following a domestic dispute with her boyfriend. App. 66-

67. As aresult, on August 5, 1994, she was incarcerated and

ordered to serve out the balance of her five-year sentence.

App. 4.

Ifl. APPLICATION FOR STATE POST-CONVICTION

REVIEW

Ms. Crawley filed a state petition for a writ of habeas

corpus on September 25, 1994, asserting that the conduct to

which she had pled guilty under S.C. Code Ann. § 20-7-50

was not a criminal offense in South Carolina and that,

therefore, she was in custody in violation of the Due Process

Clause of the Fourteenth Amendment. App. 60. On October

17, 1994, the South Carolina Court of Common Pleas granted

her petition, ruling that the child endangerment statute did

not apply to maternal conduct affecting fetuses and noting

that “all other circuit court[s] that have addres[s]ed the issue

have resolved the issue in favor of the petitioner.” App. 49.

She was released from prison.

After obtaining state habeas corpus relief, Ms. Crawley

began rebuilding her life and the lives of her children. The

state, however, appealed. App. 4. Meanwhile, in a

subsequent case involving virtually identical facts under

section 20-7-50, the South Carolina Supreme Court held, in a

3-2 decision, that the word “child” in section 20-7-50 of the

Children’s Code includes viable fetuses and therefore

“encompasses maternal acts endangering or likely to

endanger the life, comfort, or health of a viable fetus.”

Whitner v. South Carolina, 492 S.E.2d 777, 779 (1997), cert.

denied, 523 U.S. 1145 (1998). The court also summarily

concluded that the application of South Carolina’s child

endangerment statute to the defendant in that case did not

violate her federal constitutional right to due process. See id.

at 784-85. In two separate dissents, Chief Justice Finney and

Justice Moore concluded that section 20-7-50 could not

sustain the interpretation imposed on it by the majority. See

id. at 787 (Finney, C.J., dissenting); id. at 787 (Moore, J.,

dissenting). Justice Moore further concluded that the newly

expanded statute was unconstitutionally vague. See id. at 788

(Moore, J., dissenting).

On December 1, 1997, relying solely on Whitner, the

South Carolina Supreme Court reversed the grant of habeas

relief to Ms. Crawley and reinstated her conviction, again

over the dissents of Chief Justice Finney and Justice Moore.

App. 46-47. Her petition for rehearing was denied on

January 8, 1998, App. 51, and she was reincarcerated on

March 2, 1998. App. 5.

Raising the federal constitutional issues contained in her

application for State post-conviction review, Ms. Crawley

petitioned this Court for certiorari on March 19, 1998, in a

properly filed petition consolidated with Whitner. App. 5.

This Court denied certiorari on May 26, 1998, App. 45, at

which point Ms. Crawley’s state habeas action was no longer

pending before any court. On February 13, 1999, Ms.

Crawley was released on parole.

IV. FEDERAL HABEAS CORPUS PETITION

Ms. Crawley filed her first and only federal petition for a

writ of habeas corpus in the U.S. District Court for the

District of South Carolina on February 26, 1999. App. 53.

The petition alleged that the application of South Carolina’s

child endangerment statute to Ms. Crawley’s prenatal

conduct violated her due process rights by failing to give her

sufficient notice that this statute criminalized her conduct -and

by rendering the statute unconstitutionally vague as applied

to her. App. 60.

Respondents (the State) moved for summary judgment,

arguing in part that Ms. Crawley’s petition was untimely

filed under 28 U.S.C. § 2244(d)(1) and (2) and that her

constitutional claims were meritless. On February 18, 2000,

a magistrate judge issued a Report and Recommendation

finding that Ms. Crawley’s petition was timely filed;

however; the magistrate recommended that summary

judgment be entered against Ms. Crawley on the merits of her

due process notice and vagueness claims. App. 43.

Following the filing of objections by both Ms. Crawley

and the State, on March 22, 2000, the U.S. District Court for

the District of South Carolina modified in part and adopted in

part the magistrate’s Report and Recommendation. App. 21.

The district court dismissed Ms. Crawley’s petition as

untimely, disagreeing with the magistrate’s limitation period

analysis. App. 15-18. In addition, the district court adopted

the magistrate’s recommendation that summary judgment be

entered against Ms. Crawley on her notice and vagueness

claims. App. 20.

Ms. Crawley then timely filed her Notice of Appeal in the

US. District Court together with a Motion for a Certificate of

Appealability, which the District Court granted on May 16,

2000. App. 5.

On July 16, 2001, the U.S. Court of Appeals for the

Fourth Circuit affirmed the grant of summary judgment.

App. 3. Specifically declining to address the merits of Ms.

Crawley’s petition, App. 3, the court held that § 2244(d)(2)

tolls only the time during which an application for State post-

conviction review is pending in state court. App. 9.

Accordingly, Ms. Crawley’s federal habeas petition, filed

more than one year after the last state court adjudication of

her application for State post-conviction review, was held to

be untimely. App. 11.

V. STATUTORY FRAMEWORK

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) provides for a one-year limitation period for

federal habeas petitions arising out of all non-capital state

convictions. See 28 U.S.C. § 2244(d)(1)(A). For prisoners

whose convictions became final prior to the enactment of

AEDPA on April 24, 1996, a one-year grace period begins on

that date. See Brown vy. Angelone, 150 F.3d 370, 375 (4th

Cir. 1998). Section 2244(d)(2) tolls this one-year limitation

period when a “properly filed application for State post-

conviction or other collateral review” is pending. 28 U.S.C.

§ 2244(d)(2).

It is undisputed that Ms. Crawley’s state habeas petition

constituted an “application for State post-conviction . . .

review.” App. 7. It is likewise undisputed that her

application for State post-conviction review was properly

filed and continuously pending from April 24, 1996, the

effective date of AEDPA, until January 8, 1998, the date the

South Carolina Supreme Court denied her petition for

rehearing. App. 7. The State contends that § 2244(d)(2) tolls

the limitation period while an application is pending in state

court only. Under the State’s reading of § 2244(d)(2), Ms.

Crawley had until January 8, 1999, to file her federal habeas

petition; therefore, her February 26, 1999, petition was

untimely.

Ms. Crawley argues that § 2244(d)(2) does not limit the

forum in which applications for State post-conviction review

must be pursued in order to obtain the benefit of tolling.

Thus, the one-year limitation period ran from May 26, 1998,

the date this Court denied certiorari with respect to Ms.

Crawley’s application for State post-conviction review, until

May 26, 1999. Therefore, her February 26, 1999, petition

was timely.

REASONS FOR GRANTING THE WRIT

In direct conflict with recent rulings from the Court of

Appeals for the Third Circuit, the Court of Appeals for the

Fourth Circuit interpreted AEDPA’s_ general tolling

provision, 28 U.S.C. § 2244(d)(2), to apply to pending

applications for State post-conviction review only while they

are pending in state courts. Instead of giving effect to the

plain language of this tolling provision, which contains no

forum limitation, the Court of Appeals for the Fourth Circuit

read the provision to track the distinct, explicitly narrower

tolling provision that governs capital habees cases arising in

“opt-in” states and which does contain a forum limitation.

This conflicting interpretation of a key provision in an

important federal statute merits review by this Court.

Furthermore, the ruling of the Court of Appeals is based

on a misunderstanding of the nature of this Court’s certiorari

jurisdiction. Two centuries of cases from this Court have

settled that certiorari review is part of this Court’s appellate

jurisdiction, which “revises and corrects the proceedings in a

cause already instituted, and does not create the cause.”

Marbury v. Madison, 5 U.S. 137, 175 (1803). Accordingly,

seeking certiorari review of the federal questions contained in

an application for State post-conviction review does not

transform the underlying state application into a new, federal

action. Because the decision below misapprehends the nature

of this Court’s certiorari jurisdiction, review should be

granted.

I. REVIEW IS NECESSARY TO RESOLVE A SPLIT

IN AUTHORITY AMONG THREE CIRCUIT

COURTS OF APPEALS.

The Court of Appeals for the Fourth Circuit squarely held

that “the time the petition for certiorari, which sought review

of the adverse decision in the state habeas proceeding, was

pending in the United States Supreme Court did not toll the

one-year limitations of § 2244(d)(1).” App. 11. This

holding, along with an identical holding from the Court of

Appeals for the Tenth Circuit, see Rhine v. Boone, 182 F.3d

1153 (10th Cir. 1999), cert. denied, 528 U.S. 1084 (2000),

directly conflicts with controlling authority from the Third

Circuit on precisely the same point of law. See Morris v.

Horn, 187 F.3d 333 (3d Cir. 1999); cf. Nara v. Frank, No.

99-3364, 2001 U.S. App. LEXIS 19340 at *22 n.4 (3d Cir.

Aug. 30, 2001).

Materially indistinguishable from the procedural posture

in this case, Morris involved a Pennsylvania state prisoner

who concluded his direct review process on September 22,

1989. Morris, 187 F.3d at 336. He then filed a petition for

state post-conviction review on April 2, 1990. See id. That

petition was continuously pending through October 30, 1996,

when the Pennsylvania Supreme Court affirmed the denial of

relief. See id. The petitioner then sought certiorari review in

the U.S. Supreme Court of the federal questions in his

application for State post-conviction review, and this Court

denied that petition on June 23, 1997. See id. With his state

post-conviction action no longer pending, the petitioner then

sought federal habeas relief. See id.

On appeal to the Court of Appeals for the Third Circuit,

in a unanimous opinion written by Chief Judge Becker, the

court tolled the entire time period during which the

application for State post-conviction review was pending,

through the denial of certiorari on June 23, 1997. See id. at

337. The court wrote that the “Commonwealth concedes that

Morris’s [petition for post-conviction review] was properly

filed. Therefore, the statute of limitations was tolled during

the pendency of this petition, from April 2, 1990, until June

23, 1997.” Id. Thus, the statute of limitations for the federal

habeas petition “did not begin to run until June 23, 1997,” the

date on which the U.S. Supreme Court denied certiorari. /d.

The Third Circuit decision makes clear that the period during

which Morris petitioned this Court for certiorari is a stage in

the adjudication of “this petition’—i.e., the petition for State

post-conviction review.

The Third Circuit has recently cited the holding in Morris

with approval. In Nara v. Frank, No. 99-3364, 2001 U.S.

App. LEXIS 19340 (3d Cir. Aug. 30, 2001) (to be published),

the petitioner requested that the court toll the ninety-day

period during which he could have filed a petition for

certiorari to review the federal questions in his application for

State post-conviction review. Declining to toll this period,

the Nara Court distinguished Morris by, noting that, unlike

Nara, the Morris petitioner “had sought certiorari review in

the Supreme Court of the denial of his post-conviction

petition; therefore, the period during which the Supreme

Court considered and denied the writ of certiorari was -

counted in the tolling analysis.” Jd. at *22 n.4. As Nara had

failed to file a petition for certiorari, the Third Circuit refused

to toll the limitation period because his application was not

“pending.” Jd. at *22.

Only one other circuit has decided a case in which a state

prisoner had filed a petition for certiorari and subsequently

requested that the petition toll the AEDPA one-year

limitation period. In Rhine v. Boone, 182 F.3d 1153 (10th

Cir. 1999), an Oklahoma prisoner had petitioned the U.S.

Supreme Court for certiorari following the Oklahoma Court

of Criminal Appeals’ affirmance of the trial court’s denial of

post-conviction relief. See id. at 1154. This Court denied

certiorari, and the prisoner then filed his federal habeas

petition, which would be timely only if the period of

certiorari review were tolled. See id.

The Tenth Circuit concluded that the habeas petition was

untimely. It reached this conclusion, however, by

incorporating habeas principles of finality and exhaustion

into its analysis of § 2244(d)(2). See id. at 1155-56. In

contrast to the Third Circuit, the court concluded that “{a]

petition for writ of certiorari to the United States Supreme

Court is simply not an application for state review of any

kind; it is neither an application for state post-conviction

review nor an application for other state collateral review.”

Id. at 1156.

To date, the Third, Fourth, and Tenth Circuits are the

only federal appellate courts to have addressed this issue.

Other courts have addressed the analytically distinct issue of

whether to include in the tolling period the time during which

a petition for certiorari could have been filed but was not

filed and is hence not pending. Those courts have universally

held that the ninety-day period in which a petitioner could

have filed a petition for certiorari but did not is not included

in the tolling period. See Stokes v. District Attorney, 247

F.3d 539 (3d Cir. 2001), cert. denied, No. 01-5619, 2001

U.S. LEXIS 9606 (Oct. 9, 2001); Snow v. Ault, 238 F.3d

1033 (8th Cir. 2001), cert. denied, 121 S. Ct. 1663 (2001);

Gutierrez v. Schomig, 233 F.3d 490 (7th Cir. 2000), cert.

denied, 121 S. Ct. 1421 (2001); Isham v. Randle, 226 F.3d

691 (6th Cir. 2000), cert. denied, 121 S. Ct. 1211 (2001);

Coates v. Byrd, 211 F.3d 1225 (11th Cir. 2000), cert. denied,

121 S. Ct. 1129 (2001); Ott v. Johnson, 192 F.3d 510 (Sth

Cir. 1999), cert. denied, 529 U.S. 1099 (2000). These cases

are not relevant to Ms. Crawley’s claim as they do not

involve a “properly filed” or “pending” petition for certiorari,

see 28 U.S.C. § 2244(d)(2), as Ms. Crawley’s case does.

Thus, the holdings of Crawley and Rhine conflict with the

holding of Morris. Ms. Crawley’s petition should be granted

to resolve this conflict. See Sup. Ct. R. 10(a).

II. THE FOURTH CIRCUIT’S INTERPRETATION OF

A CRITICAL PROVISION OF AEDPA PRESENTS

AN IMPORTANT FEDERAL QUESTION THAT

REQUIRES GUIDANCE FROM THIS COURT.

28 U.S.C. § 2244(d)(2) is a critically important provision

of a new and complex statute that controls state prisoners’

access to federal courts. As this Court has twice recognized

in the past year, the construction of this provision raises

important federal questions that should be settled by this

Court.

The Court of Appeals held that post-conviction relief

petitions toll the AEDPA limitation period only when they

are pending in state court. The confused analysis of §

2244(d)(2) supporting that holding demonstrates the

necessity of Supreme Court guidance here. The key phrase at

issue in this case—“application for State post-conviction or

other collateral review’—describes the legal remedies that toll

the federal habeas limitation period. This Court recently

observed as much, stating that § 2244(d)(2) tolls the

limitation period “while state remedies are being pursued.”

See Duncan v. Walker, 121 S. Ct. 2120, 2128 (2001)

(emphasis added); see also id. (Section 2244(d)(2) “toll{s] the

limitation period for the pursuit of state remedies... .

(emphasis added)).

Importantly, the phrase “an application for State post-

conviction . . . review” does not limit the forum in which the

state remedy must be pursued in order to gain the advantage

of the tolling provision.” The Fourth Circuit essentially

rewrote the statute to add words to § 2244(d)(2) so that it

would read “an application for post-conviction review in

state court.” It is well settled that courts have no authority to

add to Congress’ clear words. See Commissioner v. Lundy,

516 U.S. 235, 252 (1996) (stating that court cannot rewrite

clear statute).

Comparing § 2244(d)(2) to the other tolling provision in

AEDPA confirms this reading of the statute. 28 U.S.C. §

2263(b)(2), the parallel tolling provision for state prisoners

serving capital sentences in “opt-in” states, specifically

includes the state forum requirement that § 2244(d)(2) so

noticeably lacks. Given § 2263(b)(2)’s explicit language

tolling the limitation period only “until the final State court

disposition” of a first State post-conviction petition, the

omission of similar language from § 2244(d)(2) indicates that

Congress did not intend the general tolling provision to

2 Nor did Duncan v. Walker impose any such forum requirement. Rather,

Duncan held that the word “State” in § 2244(d)(2) modifies both “post-

conviction” and “other collateral,” see 121 S. Ct. at 2124, and that an

application for federal habeas corpus is not an “application for State... .

other collateral review.” See id. at 2129. The latter holding was rooted

entirely in the fact that a federal habeas petition is a federal remedy, not a

state remedy, see id. at 2124-27, and did not depend on reading a state

forum limitation into § 2244(d)(2). Thus, that holding has no bearing on

Ms. Crawley’s argument that her “application for State post-conviction

__. review” is a state remedy tolling the limitation period as long as it is

pending in any forum.

3 AEDPA contains a different set of procedural rules for death penalty

cases arising out of states that have sufficient guarantees that prisoners

under a death sentence received effective state-funded counsel during

State post-conviction review proceedings. See 28 U.S.C. §§ 2261-66.

These provisions are commonly referred to as the “opt-in” provisions of

AEDPA. See, e.g., Booth v. Maryland, 112 F.3d 139, 140 (4th Cir.

1997).

contain that limitation.* See Russello v. United States, 464

U.S. 16, 23 (1983) (“[Where] Congress includes particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.”’”). There is “no likely explanation for

Congress’ omission of the word{s]” “final State court

disposition” from § 2244(d)(2) other than that Congress did

not intend a forum requirement in that provision while it did

in § 2263(b)(2). Cf Duncan, 121 S. Ct. at 2125.

- In its comparison of § 2244(d)(2) to other sections of

AEDPA, the Fourth Circuit again shows the need for clear

guidance from this Court with respect to the statute. The

Court of Appeals notes that § 2244(d)(1)(A) triggers the one-

year limitation period after direct review becomes final,

which includes “the denial of a certiorari petition to the

United States Supreme Court or the expiration of time for

seeking such review.” App. 11. The Court then claims that,

because § 2244(d)(2) does not contain this same statutory

language, the two provisions “do not mean the same [thing]”

and thus “§ 2244(d)(2) refers only to the state proceedings

rather than to federal proceedings also.” App. 11.

This analysis confuses the plain language of these two

provisions. Section 2244(d)(1)(A) states that the triggering

date for the limitation period is the date on which direct

review is “final” or “the expiration of the time for seeking

such review.” This provision makes no explicit mention of

certiorari review. Only by interpreting that provision’s use of

the word “‘final” in the context of habeas case law discussing

* Looking at the purpose of the “opt-in” provisions buttresses the plain

language comparison. The “opt-in” sections of AEDPA are designed to

give states “prompter and more deferential review” in return for greater

state protections for death-sentenced prisoners. Booth, 112 F.3d at 140.

Because the “opt-in” sections are intended to provide for a shorter review

process, the obvious deduction is that the general tolling provision

applicable to Ms. Crawley is not as limited as the provision governing

“opt-in” cases.

the definition of that word, see, e.g., Griffith v. Kentucky, 479

U.S. 314, 321 n.6 (1987), does the court conclude that the

time for petitioning the U.S. Supreme Court for certiorari is

included in § 2244(d)(1)(A). In contrast, there is no mention

whatsoever of finality in § 2244(d)(2); therefore, there is no

basis for reading finality principles into its plainly dissimilar

statutory language. See Lundy, 516 U.S. at 235.

The significance of the comparison between § 2244(d)(2)

and § 2244(d)(1)(A) lies elsewhere: the comparison provides

support for the cases cited above that do not toll the time

during which a state prisoner could have, but did not, file a -

petition for certiorari to this Court following the denial of

State post-conviction review. Section 2244(d)(2) refers to

applications that are “pending,” whereas § 2244(d)(1)(A)

refers to the “conclusion of direct review or the expiration of

the time for seeking such review.” With that last clause—“or

the expiration of the time for seeking such review’—§

2244(d)(1)(A) goes beyond § 2244(d)(2) by including the

time during which a prisoner could seek review but does not;

in contrast, § 2244(d)(2) requires that a petition actually be

“pending.” , The dissimilarity in language of these two

provisions in § 2244(d) thus indeed describes two different

time periods, but this difference has no significance for cases

like Ms. Crawley’s in which a petition for certiorari was

actually filed.

The Court of Appeals further confuses the interpretation

of § 2244(d)(2) by importing the legal framework of

exhaustion of state remedies into the plain words of the

tolling provision. The Fourth Circuit reasons that because

seeking review in the U.S. Supreme Court from the denial of

an application for State post-conviction review is not

necessary in order to exhaust state remedies, the limitation

period must therefore run while the U.S. Supreme Court

considers the application for State post-conviction review.

See App. 10-11 (citing Fay v. Noia, 372 U.S. 391, 435-38

(1963)). In other words, according to the Fourth Circuit,

because a petition for certiorari is not required for

exhaustion, it must not be included in the tolling period

either.

Simply put, that conclusion is a policy judgment and

should not control the otherwise plain language of the statute.

See Artuz v. Bennett, 531 U.S. 4, 10 (2000) (rebuffing

attempts to import exhaustion principles into § 2244(d)(2) as

“policy arguments” beyond “the province of this Court. . . to

accommodate”). Section 2244(d)(2) simply does not state

that the tolling period includes only the stages of review

required for exhaustion. Nor does the tolling provision

include any language referring to a forum requirement,

whereas the exhaustion section of AEDPA explicitly does.

See 28 U.S.C. § 2254(b)(1)(A) (requiring exhaustion of

“remedies available in the courts of the State” (emphasis

added)); see also Fay v. Noia, 372 U.S. at 436 (“Section 2254

speaks only of ‘remedies available in the courts of the

State.’’’). If Congress had wanted the concept of exhaustion

under 28 U.S.C. § 2254(b)(1)(A) to control the construction

of AEDPA’s general tolling provision, it would have

included clear words to that effect in § 2244(d)(2).

Certiorari’s relevance to the direct appeal process further

illustrates this point. Petitioning the U.S. Supreme Court for

certiorari during the direct appeal stage of the criminal

process is not required for the exhaustion of state remedies.

See 28 U.S.C. § 2254(a); County Court of Ulster County v.

Allen, 442 U.S. 140, 150 n.7 (1979) (“[T]here is no statutory

requirement of an appeal [during direct review] to this Court

as a predicate to habeas jurisdiction.”). Nonetheless, by

placing the word “final” in the text of § 2244(d)(1)(A),

Congress did incorporate the period during which certiorari

could be sought into the period of direct review, hence

delaying the running of the limitation period until-that time

had elapsed. See Harris v. Hutchinson, 209 F.3d 325, 328

n.1 (4th Cir. 2000) (including the certiorari period in §

2244(d)(1)(A)’s time period); Bowen v. Roe, 188 F.3d 1157,

1158-59 (9th Cir. 1999) (same). This analysis demonstrates

what this Court has already held: exhaustion principles do

not control the analysis of AEDPA’s limitation period. See

Artuz, 531 US. at 10.

By Congressional design, a prisoner need not file a

petition for certiorari with the U.S. Supreme Court in order to

exhaust state remedies, but if the prisoner elects to do so, as

she is entitled to under 28 U.S.C. § 1257(a), that time is

tolled. The Fourth Circuit’s confusion of exhaustion and

finality principles with the limitation period mixes apples and

oranges.

The complex statutory language contained in AEDPA’s

tolling provision has proven difficult for lower courts to

interpret. Understanding the importance of developing a

clear interpretation of this new statute, this Court has already

stepped in to decide two important issues under § 2244(d)(2)

on which circuit courts have split. See Duncan v. Walker,

121 S. Ct. 2120 (2001) (holding that a federal habeas petition

does not toll the limitation period under § 2244(d)(2)); Artuz

v. Bennett, 531 U.S. 4 (2000) (holding that the term “properly

filed” does not include substantive rules regarding procedural

default but merely includes procedural conditions to filing).

By virtue of granting certiorari in both cases, this Court

recognized the important federal issues presented by the

language of § 2244(d)(2). However, both of those cases left

open Ms. Crawley’s question, as Justice Breyer has noted.

See Duncan, 121 S. Ct. at 2132-33 (Breyer, J., dissenting).

Because this case raises that precise question of federal law

requiring guidance from this Court, Ms. Crawley’s petition

should be granted. See Sup. Ct. R. 10(c).

lll. THE COURT OF APPEALS DECIDED AN

IMPORTANT FEDERAL QUESTION IN A WAY

THAT CONFLICTS WITH TWO CENTURIES OF

LAW FROM THIS COURT ABOUT THE NATURE

OF ITS APPELLATE AND CERTIORARI

JURISDICTION.

As § 2244(d)(2) does not contain a forum requirement

and instead refers only to the remedies that toll the limitation

period, the controlling inquiry is whether a petition for

certiorari to the U.S. Supreme Court following the denial of

an application for State post-conviction review by the highest

court of a state converts the underlying action from “an

application for State post-conviction . . . review” to some

other form of action. This question goes to the heart of this

Court’s certiorari jurisdiction.

Without close analysis, the Court of Appeals for the

Fourth Circuit concluded that a “‘petition for writ of

certiorari to the United States Supreme Court is simply not an

application for state review ....’” App. 10 (quoting Rhine v.

Boone, 182 F.3d at 1156). That conclusion contradicts two

centuries of cases from this Court that indicate unequivocally

that certiorari is the final step in an appellate process and

does not initiate a new action.

It is well established that, through Article III, this Court

has two types of jurisdiction—original and appellate. Original

jurisdiction is limited to cases involving ambassadors, public

ministers and consuls, and those in which a state is a party.

See U.S. Const. art. III, § 2, cl. 2. Subject to Congressional

regulation, this Court’s appellate jurisdiction extends to all

other cases within the judicial power of the United States, see

-id., including state court cases raising federal issues. See

Martin vy. Hunter’s Lessee, 14 U.S. 304, 351 (1816)

(Supreme Court’s “appellate power . . . extend[s] to cases

pending in the state courts.’’).

By statutory definition and this Court’s own description,

a writ of certiorari brings a case before the Court as if it were

brought on a writ of error or appeal.? Thus, the following

* Prior to 1891, this Court’s appellate jurisdiction consisted of cases

brought to it by writs of error or appeal. See Judiciary Act of 1789, §§

22, 25, 1 Stat. 73, 84-87. In 1891, Congress added the statutory writ of

certiorari as a discretionary avenue of review in federal cases that gave

this Court “the same power and authority in the case as if it had been

carried by appeal or writ of error to the Supreme Court.” Judiciary Act of

March 3, 1891, § 6, 26 Stat. 826, 828. When the Judiciary Act was

rewritten in 1914 to include in this Court’s certiorari jurisdiction cases

ry a a cs at a

description of the function of writs of error or appeal is

applicable to certiorari:

[Jurisdiction] does not in any manner act upon the

parties; it acts only on the record. It removes the

record into the supervising tribunal. . . . The mode of

removal is form, and not substance. Whether it be by

writ of error or appeal, no claim is asserted, no

demand is made by the original [party]; he only

asserts the constitutional right to have his defence

[sic] examined by that tribunal whose province it is to

construe the constitution and laws of the Union.

Cohens v. Virginia, 19 U.S. 264, 410-11 (1821) (emphasis

added). Certiorari, then, acts only on the record, not on the

substance of the case.°

The principle that certiorari review does not change the

substantive nature of a case has its roots in Marbury v.

Madison. There, Chief Justice Marshall wrote that “[i]t is the

essential criterion of appellate jurisdiction that it revises and

corrects the proceedings in a cause already instituted, and

does not create the cause.” 5 U.S. 137, 175 (1803).

Certiorari following a final decision in state court is

undoubtedly part of the appellate jurisdiction of this Court.

originating in state courts, Congress included the same language: the

Court was given “the same power in the case as if it had been carried by

appeal or writ of error to the Supreme Court.” Act of Dec. 23, 1914, ch.

2, 38 Stat. 790; accord Forsyth v. Hammond, 166 U.S. 506, 513 (1897)

(stating that statutory writ of certiorari gives Court “all the power and

authority over [the case] which this court would have in any case brought

to it by appeal or writ of error”). By 1948, when the Court’s jurisdiction

was codified at 28 U.S.C. §§ 1251-57, see Act of June 25, 1948, Part IV,

ch. 81, 62 Stat. 927, this principle was so well settled that this descriptive

language was omitted “as unnecessary.” See 28 U.S.C.S. § 1257 at 413

(Law. Co-op. 2001).

6 The definition of “certiorari” comports with this case law. See Black's

Law Dictionary 220 (7th ed. 1999) (defining “certiorari” as a “writ issued

by an appellate court, at its discretion, directing a lower court to deliver

the record in the case for review”).

See U.S. Const., Art. III, § 2, cl. 2; Judiciary Act of March 3,

1911, § 236, 36 Stat. 1152, 1156 (introducing subsequent

provisions as a list of Court’s “appellate jurisdiction”); see

also William Howard Taft, The Jurisdiction of the Supreme

Court Under the Act of February 13, 1925, 35 Yale L.J. 1, 7

(1925) (listing certiorari to a state supreme court as one

aspect of the “entire appellate jurisdiction of the Supreme

Court’). Thus, certiorari does not “create the cause” but

rather is the final step “in a cause already instituted.”

Marbury, 5 U.S. at 175.

Contrary to the Fourth Circuit’s holding in this case,

petitioning the U.S. Supreme Court for certiorari from the

denial of State post-conviction review does not change the

underlying action or the nature of the remedy sought. As Ms.

Crawley’s state habeas petition began in state court as an

“application for State post-conviction . . . review,” it

remained such an application when Ms. Crawley asked this

Court to review the federal constitutional questions at issue in

her case. The Fourth Circuit’s conclusion to the contrary

contradicts Marbury’s fundamental principle that appellate

jurisdiction does not “create the cause” and Cohens v.

Virginia’s observation that a wnt of error, after which

certiorari was modeled, “acts only on the record” and is “not

[a matter of] substance.” Here, as in all cases originating in

state court that are presented to this Court for review, the

petition for a wnt of certiorari merely shifted the forum of the

case from state court to federal court for final review; it did

not change the underlying nature of the case. Ms. Crawley’s

petition to the U.S. Supreme Court, asking the Court to

review the federal issues presented by her State post-

conviction relief application under 28 U.S.C. § 1257(a), was

” As a treatise on the jurisdiction of the Supreme Court referred to it,

certiorari is a way for this Court to exercise “final control over litigation

. .. IN every State court in so far as federal questions are involved... .”

Richard F. Wolfson & Philip B. Kurland, Jurisdiction of the Supreme

Court of the United States § 308 at 587 (1951).

thus the final step in her ongoing “application for State post-

conviction .. . review.”

Indeed, the language this Court uses to describe cases

pending before it on a writ of certiorari confirms that a case

before it on certiorari is the same case that was heard by the

court below. See, e.g., Brady v. Maryland, 373 U.S. 83, 85

(1963) (stating that petitioner’s case asking for State post-

conviction relief was “here on certiorari”); Herndon vy.

Lowry, 301 U.S. 242, 247 (1937) (referring to the State post-

conviction review decisions by the state court as part of “the

present proceeding”); Holmes v. Jennison, 39 U.S. 540, 568

(1840) (using the phrase, “[t]he case being thus before this

Court” in referring to a state habeas action).

Therefore, certiorari is also warranted in this case because

the Fourth Circuit’s conclusion that Ms. Crawley’s petition

for certiorari was not a procedural step in the ongoing

adjudication of her “application for State post-conviction . . .

review” conflicts with bedrock principles of this Court’s

jurisdiction. See Sup. Ct. R. 10(c).

* In fact, the opinion below begs the question: If the state habeas action

awaiting certiorari review in the U.S. Supreme Court was not an

“application for State post-conviction . . . review,” then what was it? The

state habeas action certainly did not become a new, original action in the

Supreme Court, as those are limited to a very small category of cases not

implicated here. See 28 U.S.C. § 1251; U.S. Const. art. Ill, § 2, cl. 2. It

was also not a form of direct review of the conviction because that

process had ended years earlier when Ms. Crawley did not appeal her

guilty plea. App. 4. Likewise, the petition was not a form of federal

habeas review because that process had not yet begun. App. 5. The only

possibility is that the petition for certiorari was a continuation of Ms.

Crawley’s “application for State post-conviction . . . review.”

CONCLUSION

For the foregoing reasons, Ms. Crawley respectfully

requests that the Court grant her petition for a wnit of

certiorari.

LYNN M. PALTROW

National Advocates for

Pregnant Women

45 W. 10th Street #3F

New York, NY 10011

(212) 475-4218

C. RAUCH WISE

305 Main Street

Greenwood, SC 29646

(864) 229-5010

SETH KREIMER

3400 Chestnut Street

Philadelphia, PA 19104

(215) 898-7447

Respectfully submitted,

SUSAN FRIETSCHE

Counsel of Record

DAVID S. COHEN

Women’s Law Project

125 S. Ninth St. Suite 300

Philadelphia, PA 19107

(215) 928-9801 ext. 205

DAVID RUDOVSKY

Kairys, Rudovsky, Esptein

& Messing

924 Cherry Street

Philadelphia, PA 19107

(215) 925-4400

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MALISSA ANN CRAWLEY,

Petitioner-Appellant,

WILLIAM D. CATOE, Director-Designate, Department of

Corrections, State of South Carolina, ATTORNEY GENERAL OF

THE STATE OF SOUTH CAROLINA,

Respondents-Appellees.

AMERICAN PUBLIC HEALTH ASSOCIATION; SOUTH CAROLINA

MEDICAL ASSOCIATION; AMERICAN COLLEGE OF

OBSTETRICIANS AND GYNECOLOGISTS; AMERICAN NURSES

ASSOCIATION; ALLIANCE FOR SOUTH CAROLINA’S CHILDREN,

NATIONAL ASSOCIATION OF ALCOHOLISM AND DRUG ABUSE

COUNSELORS; SOUTH CAROLINA ASSOCIATION OF

ALCOHOLISM AND DRUG ABUSE COUNSELORS; SOUTH

CAROLINA NURSES ASSOCIATION; AMERICAN MEDICAL

WoMEN’S ASSOCIATION; NATIONAL ASSOCIATION OF SOCIAL

WORKERS, INCORPORATED; SOCIETY OF GENERAL INTERNAL

MEDICINE; AMERICAN ACADEMY ON PHYSICIAN AND

PATIENT; THE CONSORTIUM FOR SUBSTANCE ABUSING

WOMEN AND THEIR CHILDREN;

[page 2 of 10]

ASSOCIATION FOR MEDICAL EDUCATION AND RESEARCH IN

SUBSTANCE ABUSE; ASSOCIATION OF REPRODUCTIVE HEALTH

PROFESSIONALS; NATIONAL FAMILY PRESERVATION

NETWORK; NATIONAL CENTER FOR YOUTH LAW; LEGAL

SERVICES FOR PRISONERS WITH CHILDREN; INSTITUTE FOR

HEALTH AND RECOVERY; NOW LEGAL DEFENSE AND

EDUCATION FUND; 52 PERCENT; LEGAL ACTION CENTER,

Amici Curiae.

App. |

No. 00-6594

Appeal from the United States District Court

for the District of South Carolina, at Florence.

G. Ross Anderson, Jr., District Judge.

(CA-99-527-4-13BF).

Argued: December 7, 2000

Decided: July 16, 2001

Before WIDENER and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge Widener wrote the

opinion, in which Judge King and Senior Judge Hamilton

concurred.

COUNSEL

ARGUED: Susan Frietsche, WOMEN'S LAW PROJECT,

Philadelphia, Pennsylvania, for Appellant. Tracey Colton

Green, OFFICE OF THE ATTORNEY GENERAL,

Columbia, South Carolina, for Appel-

[page 3 of 10]

lees. ON BRIEF: David S. Cohen, Lynn M. Paltrow,

WOMEN'S LAW PROJECT, Philadelphia, Pennsylvania;

Seth Kreimer, Philadelphia, Pennsylvania; C. Rauch Wise,

Greenwood, South Carolina; David Rudovsky, KAIRYS,

RUDOVSKY, EPSTEIN, MESSING & RAU, Philadelphia,

Pennsylvania, for Appellant. Charles M. Condon, Attorney

General, John W. McIntosh, Chief Deputy Attorney General,

Donald J. Zelenka, Assistant Deputy Attorney General,

App. 2

OFFICE OF THE ATTORNEY GENERAL, Columbia,

South Carolina, for Appellees. Daniel N. Abrahamson, San

Francisco, California, for-Amici Curiae.

OPINION

WIDENER, Circuit Judge:

Malissa Ann Crawley appeals from a decision of the

United States District Court for the District of South Carolina

denying her petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. Crawley's petition challenges her

conviction on due process grounds, alleging that she had no

notice that the statute under which she was convicted applied

to her conduct and that the statute as interpreted is

unconstitutionally vague. The district court dismissed

Crawley's petition as untimely under the one-year limitations

period of 28 U.S.C. § 2244(d) and also rejected the merits of

her petition. Crawley argues that the district court

misinterpreted the tolling provision of 28 U.S.C. § 2244(d)(2)

by failing to toll the statute of limitations for the period

during which her petition was pending in the United States

Supreme Court for writ of certiorari to review the South

Carolina Supreme Court's denial of her state habeas corpus

application. Because we agree with the district court that 28

U.S.C. § 2244(d)(2) did not toll the one-year limitations

period while Crawley's petition for writ of certiorari was

pending, we affirm without considering the merits of

Crawley's petition for habeas corpus.

The operative facts in this matter are not disputed. On

November 9, 1991, Malissa Ann Crawley gave birth to her

son at Anderson Hos-

[page 4 of 10]

App. 3

pital in South Carolisa. That same month, Crawley was

charged with "unlawful neglect of a child" pursuant to S.C.

Code § 20-7-50, 20-7-490 (1985), on the grounds that she

allegedly took cocaine or crack cocaine while she was

pregnant, endangering her fetus. Crawley waived grand jury

presentment and pleaded guilty as charged. On January 6, ;

1992, Crawley was sentenced to five years in prison which

was suspended, resulting in five years of probation. Crawley

did not appeal her conviction or her sentence. :

On July 15, 1994, Crawley was charged with criminal

domestic violence. She pleaded guilty to the charge. As a

result, on August 5, 1994, a South Carolina judge revoked

her probation and ordered her to begin serving her five-year

sentence. Crawley did not appeal the revocation of her

probation.

Crawley filed her first and only state application for

habeas corpus relief on September 25, 1994, asserting that,

because child endangerment does not extend to a fetus, the

act to which she pleaded guilty, under S.C. Code § 20-7-50, |

20-7-490 (1985),"[was] not a crime in South Carolina" and )

that she was in custody in violation of the South Carolina |

constitution and the Due Process Clause of the Fourteenth

Amendment. A South Carolina trial court granted Crawley's

application on October 17, 1994. The South Carolina

Supreme Court held the state's appeal of this decision in

abeyance until it resolved the appeal of another case raising

the same issues as Crawley's application. The South Carolina

Supreme Court decided in that case, Whitner v. State, 492

S.E.2d 777 (S.C. 1997), that a viable fetus is a "child" within

the meaning of the child abuse and endangerment statute.

Citing its decision in the Whitner case, the South Carolina

Supreme Court reversed the trial court's decision to grant

Crawley's application for state habeas relief and reinstated

Crawley's conviction and sentence on December 1, 1997.

Crawley v. Evatt, No. 97-MO-117 (S.C. Dec. 1, 1997). The

South Carolina Supreme Court denied Crawley's motion for

App. 4

eeeEEEe——ee—eE—E=

rehearing on January 8, 1998. On March 2, 1998, after both

the South Carolina Supreme Court and the United States

Supreme Court denied her request for bail pending her

petition for a writ of certiorari, Crawley was reincarcerated.

Crawley's petition for certiorari to review the adverse

habeas decision of the South Carolina Supreme Court,

consolidated with Whit-

[page 5 of 10]

ner's, was timely filed in the United States Supreme Court on

March 19, 1998. In a memorandum order of May 26, 1998,

the United States Supreme Court denied Crawley's petition

for certiorari. Whitner v. South Carolina and Crawley v.

South Carolina, 523 U.S. 1145 (1998).

Crawley filed her first and only petition for a writ of

habeas corpus in federal court on February 26, 1999, again

challenging her conviction on the grounds that South

Carolina's interpretation of the child endangerment statute,

extending the statute to include endangerment of a fetus,

violated due process because she had no notice that the

statute extended to her conduct and that the statute, as

interpreted, was unconstitutionally vague. The district court

dismissed Crawley's petition as untimely on March 27, 2000.

In addition, the district court entered summary judgment

against Crawley on the merits of her notice and vagueness

claims. Crawley timely filed her notice of appeal with the

US. District Court for the District of South Carolina on Apmil

24, 2000, together with a motion for a certificate of

appealability which this court granted on May 16, 2000.

Il.

The construction of the statute of limitations of the

Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104-132, 110 Stat. 1214 (AEDPA), is a question of

law that this Court reviews de novo. See Taylor v. Lee, 186

App. 5

F.3d 557, 559 (4th Cir. 1999), cert. denied, 120 S. Ct. 1262

(2000).

The Antiterrorism and Effective Death Penalty Act of

1996 imposed a new, one-year statute of limitations on

petitions brought by state prisoners for a federal writ of

habeas corpus. See 28 U.S.C.

[page 6 of 10]

§ 2244(d). In Crawley's case, this limitations period ran from

the date on which the criminal judgment against her "became

final by the conclusion of direct review or the expiration: of

the time for seeking such review." See 28 U.S.C. §

2244(d)(1)(A). Crawley's January 6, 1992, conviction for

"unlawful neglect of a child," from which she did not appeal,

became final long before the April 24, 1996, effective date of

the AEDPA. We have decided that, in the case of a habeas

challenge to a state conviction that became final prior to the

enactment of the AEDPA, a habeas petitioner is entitled to a

one-year grace period from the effective date of the Act,

April 24, 1996, in which to file a federal habeas petition. See

' The relevant section of AEDPA codified at 28 U.S.C. § 2244(d)

provides, in pertinent part:

(1) A 1-year period of limitation shall apply to an application for

a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation period shall run from

the latest of

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(2) The time during which a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.

App. 6

Brown v. Angelone, 150 F.3d 370, 375 (4th Cir. 1998). Thus,

Crawley's one-year limitations period ran from April 24,

1996.

AEDPA also provides, however, that this one-year

limitations period is tolled while "a properly filed application

for State postconviction or other collateral review .. . is

pending.” 28 U.S.C. § 2244(d)(2). Crawley's application for

state post-conviction relief was continuously pending before

the South Carolina courts from before the April 24, 1996,

effective date of the AEDPA until January 8, 1998, when the

South Carolina Supreme Court denied her request for

rehearing. The parties are in agreement that the one-year

limitations period was tolled during this time period.

The district court held that this tolling period ended on

January 8, 1998, and dismissed Crawley's February 26, 1999,

petition for a federal writ of habeas corpus as untimely.

Crawley argues, however, that her petition for certiorari to

the United States Supreme Court seeking review of the South

Carolina Supreme Court's decision to reject her application

for state habeas corpus relief was "a properly filed

application for other collateral review" which was "pending"

and which tolled the limitations period. If we accept

Crawley's argument, the

[page 7 of 10]

one-year limitations period was tolled at least during the

period from March 19 until May 26, 1998, when the Supreme

Court denied certiorari, and her petition was timely.

While this appeal poses a question of first impression in

this Circuit, several other circuits have considered and

rejected similar arguments. In Rhine v. Boone, 182 F.3d 1153

(10th Cir. 1999), the Tenth Circuit concluded, on these same

facts, that the one-year limitations period was not tolled

during the period that a petition for writ of certiorari to

App. 7

review denial of state habeas corpus relief was pending

before the United States Supreme Court.

Other courts have considered a similar argument to that

raised by Crawley on a slightly different factual basis. In

those cases, a habeas corpus petitioner who never filed a

petition for writ of certiorari to the United States Supreme

Court to review his state habeas corpus application argued

that the statue of limitations was tolled during the 90-day

period in which such a petition timely could have been filed.

The Seventh Circuit rejected a tolling argument in this

context on the ground that, where no petition for wnt of

certiorari has been filed, there was neither a "properly filed”

nor a "pending" application for other collateral review within

the meaning of 28 U.S.C. § 2244(d)(2). Gutierrez v.

Schomig, 233 F.3d 490 (7th Cir. 2000); see also Stokes v.

Dist. Att'y of Philadelphia, 247 F.3d 539 (3d Cir. 2001)

(citing Gutierrez as alternate ground for its holding, but also

relying on reasoning more akin to Rhine).

Other circuits to consider similar fact situations have

rejected tolling arguments on the same reasoning adopted by

the Tenth Circuit in Rhine v. Boone, 182 F.3d 1153, that

proceedings before the United States Supreme Court seeking

review of a state habeas corpus application do not toll the

one-year limitations period. See Stokes, supra; Ott v.

Johnson, 192 F.3d 510 (Sth Cir. 1999); Isham v. Randle, 226

F.3d 691 (6th Cir. 2000); Snow v. Ault, 238 F.3d 1033 (8th

Cir. 2001); Bunney v. Mitchell, 241 F.3d 1151, 1156 (9th Cir.

2001); and Coates v. Byrd, 211 F.3d 1225, 1226-27 (11th Cir.

2000). And the foregoing list of cases is not necessarily

exclusive.

All of the courts of appeal considering the question have

come to a like conclusion. Following the denial of relief in

the state courts in

[page 8 of 10}

App. 8

a a Te ee

state habeas proceedings, neither the time-for filing a petition

for certiorari in the United States Supreme Court, nor the q

time a petition for certiorari is considered by the United

States Supreme Court, is tolled under 28 U.S.C. § 2244(d)(2)

from the one-year statute of limitations under § 2244(d)(1).

In our case, the petition for certiorari to review the adverse

habeas decision of the South Carolina Supreme Court was

properly filed on March 19, 1998 and was pending in the

United States Supreme Court from then until it was denied on

May 26, 1998. We now hold that the period from March 19,

1998 until May 26, 1998 does not toll the statute of

limitations under § 2244(d)(2). We come to this conclusion

for the following reasons.

In a case on only slightly different facts, the Supreme

Court has recently construed the language of 28 U.S.C. §

2244(d)(2). In Duncan v. Walker, _ U.S. __, 2001 WL

672270 (U.S. June 18, 2001) (No. 00-121), the Court

reversed a decision of the Second Circuit which held that a

federal habeas petition, properly filed and pending in the

district court, filed under 28 U.S.C. § 2254, tolled the period

of the statute of limitations under 28 U.S.C. § 2244(d)(2) the

same as would have a properly filed state habeas petition. See

Walker v. Artuz, 208 F.3d 357 (2nd Cir. 2000), reversed by

Duncan v. Walker, _ U.S. __, 2001 WL 672270 (U.S. June

18, 2001) (No. 00-121).> The Court read 28 U.S.C. §

2244(d)(2) so that "the word 'State’ applies to the entire

phrase ‘post-conviction or other collateral review.” Duncan

v. Walker, __ U.S. __, 2001 WL 672270, slip op. at 4.

Because federal habeas corpus proceedings are neither state

post-conviction review nor other state collateral review, the

Court held that they do not toll the one-year limitations

period under 28 U.S.C. § 2244(d)(2).

This was the same construction of 28 U.S.C. § 2244(d)(2)

reached by the Tenth Circuit in Rhine v. Boone. See Rhine v.

2 The Tenth Circuit, in Petrick v. /artin, 236 F.3d 624 (10th Cir. 2001),

followed Walker without overruling Rhine, which we note in passing.

App. 9

Boone, 182 F.3d at 1156 ("We are satisfied that, in the

wording of § 2244(d)(2), 'State’ modifies the phrase 'post-

conviction review' and the phrase ‘other collateral review."’).

We are in agreement with the Tenth Circuit that "[a] petition

for writ of certiorari to the United States Supreme Court is

simply not an application for state review of any kind; it is

neither

[page 9 of 10]

an application for state post-conviction review nor an

application for other state collateral review." Rhine v. Boone,

182 F.3d at 1156. We further agree with the reasoning of the

Tenth Circuit that:

the term "pending" in § 2244(d)(2) must be construed

to encompass all of the time during which a state

prisoner is attempting, through proper use of state

court procedures, to exhaust state court remedies

with regard to a _ particular post-conviction

application.

Rhine, 182 F.3d at 1155 (italics in original) (internal

quotations omitted).

The rule of exhaustion of state remedies is a long-

standing federal procedural rule which has been codified at

least since 1948 and presently is 28 U.S.C. § 2254(b)(1). Soa

prisoner seeking federal habeas relief from a state conviction

may not file his request for the same until after he has

exhausted his remedies in the state courts. The Supreme

Court decided some years ago, in Fay v. Noia, 372 U.S. 391,

435-38 (1963), that such a prisoner was not required to seek

review in the United States Supreme Court of a denial of

habeas relief by the state courts as a part of the exhaustion of

state remedies. It held this because a petition for certiorari to

the United States Supreme Court was not a part of state

exhaustion, the United States Supreme Court "is not the court

of any State," Fay, 372 U.S. at 436. No reason is shown to

App. 10

treat a petition of certiorari in the United States Supreme

Court differently here.

Under the same statute at issue here, the limitation of

action begins to run when the conviction is final under §

2244(d)(1)(A) only when the availability of a direct appeal

has been exhausted, which includes the denial of a certiorari

petition to the United States Supreme Court or the expiration

of time for seeking such review. Griffith v. Kentucky, 479

U.S. 314, 321 n.6 (1987); Harris v. Hutchinson, 209 F.3d

325, 328 (4th Cir. 2000). The wording of § 2244(d)(2) differs

from that of § 2244(d)(1)(A) in that the statute of limitations

is tolled during a properly filed and-pending application "for

state post-conviction or other collateral review." The very

difference of wording in the two code sections indicates that

they do not mean the same and is an indication that §

2244(d)(2) refers only to the state proceedings rather

[page 10 of 10]

than to federal proceedings also. Certainly the wording of the

statute is not a model of clarity. See Strunk and White, The

Elements of Style § 20 (3d ed. 1979). Being unclear, it should

be construed consistent with the statutory purpose of

"curbing the abuse of the statutory writ of habeas corpus."

H.R. Rep. 104-518, reprinted in 1996 U.S.C.C.A.N. 944. As

noted, since Fay v. Noia unmistakably held that a petition for

certiorari to the United States Supreme Court was not a part

of the exhaustion of state remedies, no reason is seen to treat

such a petition differently here.

We hold that the time the petition for certiorari, which

sought review of the adverse decision in the state habeas

proceeding, was pending in the United States Supreme Court

did not toll the one-year limitations of § 2244(d, 1).

> Crawiey's brief, p.16, claims that all of the period between January 8,

1998 and May 26, 1998 was tolled. We need not decide that question

because if the time the petition was actually pending in the Supreme

App. 11

The judgment of the district court dismissing the petition

as out of time is accordingly

AFFIRMED.‘

Court, March 19 until May 26, 1998, counted toward tolling, that would

have been sufficient.

* The motion of Crawley, filed December 20, 2000, to strike the letter

from Catoe, et al., is granted.

App. 12

FILED March 22, 2000

LARRY W. PROPES, CLERK

FLORENCE, S.C.

UNITED STATES DISTRCT COURT

DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

Malissa Crawley, #212641,

Petitioner,

Vv.

William D. Catoe, Department : C/A No. 4:99-527-13BF

of Corrections, StateofSouth :

Carolina; Charles M. Condon, : ORDER

Attorney General of the State

of South Carolina; and Stephen

K. Benjamin, South Carolina

Department of Probation,

Parole and Pardon Services,

Respondents. :

This matter is before the Court for a review of the

magistrate’s Report and Recommendation made in

accordance with 28 U.S.C. § 636 and Local Rule 73.02,

D.S.C., and filed February 18, 2000.

I. BACKGROUND

Petitioner brought this action seeking relief pursuant to

28 U.S.C. § 2254. On May 21, 1999, Respondents filed a

motion for summary judgment based on the following

grounds: (1) that the petition is barred by the one-year statute

of limitations in 28 U.S.C. § 2244(d);' (2) that Petitioner has

defaulted her federal constitutional

[page 2 of 9]

claims; and (3) that even if the petition is properly before the

court, (a) Petitioner’s voluntary guilty plea waived any due

process challenge or allegation that she lacked notice that

S.C. Code Ann. § 20-7-50 proscribed her conduct, (b)

Petitioner’s conviction, at any rate, satisfied due process

because previous decisions of the South Carolina Supreme

Court gave Petitioner notice that S.C. Code Ann. § 20-7-50

proscribed her conduct, and (c) S.C. Code Ann. § 20-7-50 is

not impermissibly vague. Although the magistrate

recommends not finding Petitioner’s claim untimely or

procedurally barred, the magistrate recommends granting

Respondents’ motion for summary judgment and dismissing

Petitioner’s claim without an evidentiary hearing because

'28 U.S.C. § 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the judgment of

a State court. The limitation period shall run from the latest of -

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such

review;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws of the

United States is removed, if the applicant was prevented from filing by

such State action;

initially recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable to

cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

(2) the time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of

limitation under this subsection.

App. 14

Petitioner’s conviction did not violate due process and S.C.

Code Ann. § 20-7-50 is not unconstitutionally vague.

Il. STANDARD OF REVIEW

The magistrate makes only a recommendation to this

Court. The

[page 3 of 9]

recommendation has no presumptive weight, and

responsibility for making a final determination remains with

this Court. Mathews 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 objection is made, and this Court may “accept,

reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate.” 28 U.S.C. §

636(b)(1). This Court may also “receive further evidence or

recommit the matter to the magistrate with instructions.” Jd.

Both Respondents and Petitioner object to the Report and

Recommendation.

Ill. DISCUSSION

A. Respondents’ Objections

1. Statute of Limitations

Respondents object to the magistrate’s conclusion that

Petitioner’s claim is not barred by the statute of limitations in

28 U.S.C. § 2244(d). In their motion for summary judgment,

Respondents relied on Moseley v. Freeman, 977 F. Supp. 733

(M.D.N.C. 1997), for the proposition that an action for state

post-conviction review (PCR) is not pending during the time

for seeking a writ of certiorari from the United States

Supreme Court, thereby precluding the tolling of that time

under 28 U.S.C. § 2244(d)(2). Petitioner argued that Moseley

was inapplicable because the court was not interpreting §

App. 15

2244(d)(2). While the magistrate stated that Respondents’

argument was not without merit, the magistrate recommends

following prior precedent in this district holding that a

petition for a wnt of certiorari in the United States Supreme

[page 4 of 9]

Court in a state PCR action tolls the statute of limitations

pursuant to § 2244(d)(2). See Whitner v. Moore, No. 2:98-

3564-23AJ (D.S.C. Sept. 24, 1999).

In support of their objection to the magistrate’s

conclusion that Petitioner’s claim is not time barred,

Respondents point to two courts of appeals decisions that

directly contravene Petitioner’s position and the district

court’s holding in Whitner. See Ott v. Johnson, 192 F.3d 510

(Sth Cir. 1999); Rhine v. Boone, 182 F.3d 1153 (10th Cir.

1999), cert. denied, 120 S. Ct. 808 (2000).”

In Rhine, the Tenth Circuit specifically held:

The time after the [highest state court to rule on the

matter] finally denied [the petitioner’s state] post-

conviction application until the United States

Supreme Court denied his petition for certiorari was

not “time during which a properly filed application

for State post-conviction . . . review . . . [was]

pending,” and, therefore, it should be counted toward

the one-year limitation period.

182 F.3d at 1155 (some alteration in orginal) (quoting 28

U.S.C. § 2244(d)(2)). The court distinguished § 2244(d)(2)

from § 2244(d)(1)(A), which explicitly accounts for the time

during which a convict can petition the United States

* Rhine was decided on July 7, 1999, four months after Respondents filed

their objections to the magistrate’s Report and Recommendation in

Whitner, and Ott was decided on October 21, 1999, one month after the

district court issued its order in Whitner.

App. 16

Supreme Court for direct review in determining when a

conviction becomes final for purposes of setting the time

from which the statute of limitations for filing a federal PCR

action runs. The court explained its rationale and the

reasoning behind this distinction:

It would not be in the interest of judicial efficiency to

require a prisoner to begin post-conviction

proceedings before his judgment of conviction was

final, and that is why the relevant statutes hinge the

running of the

[page 5 ef 9]

limitation period on the finality of the judgment of

conviction, see 28 U.S.C. §§ 2244(d)(1 (A), 2255(1).

The same rationale does not extend, however, to

the tolling provision of § 2244(d)(2). The state post-

conviction proceeding is final after the state’s highest

court has addressed the application. Exhaustion of

state remedies, which is a pre-condition to the ability

to petition for a writ of habeas corpus, does not

include a direct appeal to the United States Supreme

Court from the state’s denial of post-conviction relief,

and neither is a federal court’s jurisdiction to entertain

a habeas petition affected by whether or not review of

the state’s denial of post-conviction relief is sought in

the Supreme Court. The tolling provision specifically

refers to a properly filed application for “State post-

conviction or other collateral review.” 28 U.S.C. §

2244(d)(2). We are satisfied that in the wording of §

2244(d)(2), “State” modifies the phrase “post-

conviction review” and the phase “other collateral

review.” A petition for writ of certiorari to the United

States Supreme Court is simply not an application for

state review of any kind; it is neither an application

for state post-conviction review nor an application for

other state collateral review.

App. 17

Id. at 1156 (one citation omitted).

In Ott, the Fifth Circuit reached the same conclusion

upon the same rationale. See 192 F.3d at 513 (citing Rhine,

182 F.3d at 1155, 1156).

The Fourth Circuit has not ruled on the issue of whether

the time for seeking a writ of certiorari from the United

States Supreme Court for review of a state PCR action tolls

the statute of limitations for filing a federal habeas corpus

petition pursuant to 28 U.S.C. § 2244(d)(2).° Therefore, this

Court will follow the precedent of the only two circuit courts

that have specifically ruled on the issue and hold that the time

after which a state finally denies a petitioner’s petition for

state post-conviction relief until

[page 6 of 9]

the United States Supreme Court denies the petitioner’s

petition for certiorari is not tolled under 28 U.S.C. §

2244(d)(2). Consequently, we agree with Respondents that

Petitioner’s habeas corpus petition in this case should be

dismissed in its entirety as untimely.

2. Procedural Default

Respondents object to the magistrate’s conclusion that

Petitioner did not default her federal constitutional claims.

The magistrate relied on Coleman v. Thompson, 501 U.S. 722

(1991), in which the Supreme Court held:

> In Taylor v. Lee, 186 F.3d 557 (4th Cir. 1999), cert. denied, 68

U.S.L.W. 3367 (2000), the Fourth Circuit, following precedent from the

Ninth Circuit and Tenth Circuit, held that the entire period of state post-

conviction review, “from initial filing to final disposition by the highest

state court,” is tolled from the limitations period under § 2244(d)(2). See

186 F.3d at 560-61. However, the court specifically reserved the present

question. See 186 F.3d at 558 n.1.

App. 18

In habeas, if the decision of the last court to which the

petitioner presented his federal claims fairly appeared

to rest primarily on resolution of those claims, or to

be interwoven with those claims, and did not clearly

and expressly rely on an independent and adequate

state ground, a federal court may address the petition.

501 U.S. at 735; see also Harris v. Reed, 489 U.S. 255

(1989) (adopting independent-and-adequate-state-ground rule

from Michigan v. Long, 463 U.S. 1032 (1983), for federal

habeas cases). Although this Court’s decision on

Respondents’ previous objection moots this objection, this

Court agrees with the magistrate that whether or not the

South Carolina Supreme Court’s two-sentence decision

rested on an independent and adequate state ground is not

clear. Therefore, Respondents’ objection is without merit.

3. Waiver

Respondents object to the magistrate’s rejection of their

argument that Petitioner’s voluntary guilty plea waived any

challenge to the constitutionality of S.C.

[page 7 of 9]

Code Ann. § 20-7-50. The magistrate, in rejecting

Respondents’ argument, relied on the Blackledge/Menna

exception to the general rule that an intelligent, competent,

and voluntary guilty plea may not be collaterally attacked.

The exception applies “where the defendant’s claimed right

is the ‘the right not to be haled into court at all upon the

felony charges.” United States v. Drew, 200 F.3d 871, 876

(D.C. Cir. 2000) (citing, inter alia, Blackledge v. Perry, 417

USS. 21, 30-31 (1974); Menna v. New York, 423 U.S. 61, 62

n.2 (1975)); see also United States v. Bluso, 519 F.2d 473,

474 (4th Cir. 1975). In their objection, Respondents point to

no authority that persuades this Court that the magistrate

erred in applying the relevant law. Respondents’ objection is

therefore without merit.

App. 19

B. Petitioner’s Objections

Petitioner objects to the magistrate’s conclusions that

Petitioner’s conviction did not violate due process and that

S.C. Code Ann. § 20-7-50 is not unconstitutionally vague as

applied to Petitioner. Respondents had argued to the

magistrate that Petitioner’s conviction satisfied due process

because previous case law gave Petitioner adequate notice

that § 20-7-50 proscribed her conduct. Petitioner argued that

the case law, as well as the statute itself, failed to provide her

with constitutionally adequate notice. Petitioner also argued

that the statute was impermissibly vague as applied to her.

The magistrate found that the state supreme court’s

interpretation of § 20-7-50 “was fully within due process

guarantees based upon existing precedent,” and that § 20-7-

50 is not unconstitutionally vague.

[page 8 of 9]

Although this Court’s resolution of the statute-of-

limitations issue eliminates any need to address Petitioner’s

objections, we do so in the event the Fourth Circuit disagrees

with that resolution, and after a de novo review of the record

and the relevant case law, this Court agrees with the

magistrate’s conclusions and finds both of Petitioner’s

objections without merit. Simply, this Court is not persuaded

by Petitioner’s analysis of the relevant cases that the

magistrate erred in applying the applicable constitutional law.

IV. CONCLUSION

After a de novo review of record, the relevant case law,

and the magistrate’s Report and Recommendation, this Court

finds, based on the reasons stated above, that Petitioner’s

habeas corpus petition should be dismissed in its entirety as

untimely because of Petitioner’s failure to file her petition

within the limitation period established in 28 U.S.C. §

2244(d). Otherwise, this Court finds that the magistrate’s

App. 20

report is based upon the proper law. Accordingly, this Court

modifies the Report and Recommendation by replacing the

magistrate’s discussion of the statute-of-limitations issue

with this Court’s discussion of that issue. Otherwise, the

Report and Recommendation is accepted and adopted in its

entirety.

[page 9 of 9]

IT IS THEREFORE ORDERED that Petitioner’s claim

be DISMISSED in its entirety as untimely.

IT IS SO ORDERED.

“s/G. Ross Anderson, Jr.”

G. ROSS ANDERSON, JR.

UNITED STATES DISTRICT

JUDGE

Anderson, South Carolina

March 22, 2000

ORIGINAL FILED

MAR 27 2000

LARRY W. PROPES, CLERK

FLORENCE, S.C.

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

Malissa Ann Crawley,

Petitioner, JUDGMENT

IN A CIVIL CASE

vs. Civil Action No. 4:99cv527-19

William D. Catoe, Director-

Designate, Department of

Corrections, State of South

Carolina; and Attorney General

of the State of South Carolina,

Respondents.

Decision by the Court. This action came to hearing before

the court. The issues having been duly heard and the court

having modified in part and adopted in part the

recommendation of the magistrate judge,

IT IS ORDERED AND ADJUDGED that petitioner’s claim

is dismissed in its entirety as untimely.

LARRY W. PROPES, CLERK

March 27, 2000 UNITED STATES DISTRICT COURT

“ W. ”

Deputy Clerk

App. 22

__ FILED FEB 18 2000

LARRY W. PROPES, CLERK

FLORENCE, S.C.

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRCT OF SOUTH CAROLINA

FLORENCE DIVISION

MALISSA CRAWLEY, #212641, ) Civil Action No.

) 4:99-52D-13BF

Petitioner, )

)

V. ) MAGISTRATE

) JUDGE’S

, ) REPORT AND

RECOMMENDATION

WILLIAM D. CATOE,

DEPARTMENT OF

CORRECTIONS, STATE OF

SOUTH CAROLINA; CHARLES

M. CONDON, ATTORNEY

GENERAL OF THE STATE OF

SOUTH CAROLINA; AND

STEPHEN K. BENJAMIN,

SOUTH CAROLINA

DEPARTMENT OF PROBATION,

PAROLE AND PARDON

SERVICES,

ee ee ee ee ee ee ee oe ee

Respondents.

I. BACKGROUND

Petitioner, Malissa Crawley (“petitioner”), is, upon facts

and information submitted, presently on parole in Anderson

County, South Carolina. Petitioner, represented by counsel,

filed her petition for a writ of habeas corpus pursuant to 28

App. 23

U.S.C. § 2254' on May 12, 1999. Respondents filed a

motion for summary judgment on May 21, 1999. The court

issued an order dated June 8, 1999, granting the petitioner’s

motion to extend time in which

[page 2 of 20]

to file a response to the motion for summary judgment until

July 2, 1999. The petitioner filed a memorandum in

opposition to the motion for summary judgment on July 2,

1999. The court has carefully reviewed the pleadings,

memoranda of law, and exhibits offered by petitioner and

respondents in support of their respective positions.

IL. Procedural History

The following procedural history of this case is not in

dispute. On November 29, 1991, the petitioner was arrested

and charged with “unlawful neglect of a child” in violation of

S.C. Code Ann. § 20-7-50 (1985). The petitioner waived

grand jury presentment and pled guilty as charged on January

6, 1992. The factual basis for the plea was that the petitioner

was using illegal drugs while pregnant and, therefore, was

guilty of “unlawful neglect of a child.” The Honorable Tom

J. Ervin sentenced the petitioner to five years imprisonment,

suspended during five years probation. The petitioner did not

appeal her conviction or sentence. On August 5, 1994, the

Honorable Frank Eppes revoked the petitioner’s probation

and reinstated the active sentence based upon her July 15,

1994, conviction for criminal domestic violence. The

petitioner did not appeal her revocation.

' This habeas corpus case was automatically referred to the undersigned

United States Magistrate Judge pursuant to the provisions of 28 U.S.C. §

636(b)(1)(B) and Local Rule 19.02(B)(2)(c), DSC. Because this is a

dispositive motion, this report and recommendation is entered for review

by the Court.

App. 24

s ;

‘A

On September 25, 1994, the petitioner filed a state

petition for writ of habeas corpus and alleged her

confinement was unlawful for the following reason:

The petitioner believes that she is being held

unlawfully due to the fact that the act to which she

pled guilty [unlawful neglect of a child] is not a crime

in the State of South Carolina. As a result, the trial

court did not have jurisdiction to either accept her

plea or to revoke her probation. As the charge against

her, based upon the act she is alleged to have

committed, is not a crime within the state of South

Carolina, she is being held in violation of the due

process clause of Article I, § 3 of the Constitution of

the State of South Carolina and the Fourteenth

[page 3 of 20]

Amendment of the Constitution of the United States

of America.

(Petition for Writ of Certiorari).

On September 30, 1994, the Honorable H. Dean Hall

granted the writ and set a hearing on the merits for October

17, 1994. Judge Eppes, who ultimately heard the case, issued

a formal written order vacating the petitioner's conviction

and sentence. Judge Eppes held that “The sole question for

the court is whether the petitioner pled guilty to a crime that

does not exist in South Carolina.” He ruled that the

petitioner did so. The State appealed Judge Eppes’ order

granting state habeas relief. The South Carolina Supreme

Court allowed the petitioner to hold the time limits for filing

her initial brief in abeyance while the appeal in Cornelia

Whitner’s case was pending. The Whitner” case was based

? The court issued a full opinion in Whiter holding that a viable fetus is a

“child” within the meaning of child abuse and endangerment statute, and

thus a mother could be charged under the statute for ingesting crack

App. 25

on this same issue. After the state supreme court issued its

first decision in Whitner, which was ultimately withdrawn

upon a grant of rehearing which led to the second Whitner

opinion described in footnote 2 below, petitioner Crawley

filed a brief raising a number of constitutional claims. On

reply, the State argued that the federal constitutional claims

were procedurally barred because neither the state habeas

petition nor Judge Eppes’ order addressed these arguments.

After reviewing the record and appellate briefs, the South

Carolina Supreme Court reversed the granting of state habeas

relief without oral argument and reinstated petitioner

[page 4 of 20]

Crawley’s conviction and sentence. The December 1, 1997,

order in Crawley states in full:

The state has filed an appeal following the grant of

respondent’s petition for a wnt of habeas corpus. We

reverse the grant of habeas corpus and reinstate

respondent’s conviction for unlawful neglect of a

child. [See] Whitner v. State. . .

On January 8, 1998, the state supreme court denied the

petition for rehearing. Chief Justice Rehnquist denied the

petitioner’s request to remain on bond while she sought

certiorari review from the United States Supreme Court.

On or about March 24, 1998, the petitioner filed a joint

petition for writ of certiorari in the United States Supreme

Court seeking review of the South Carolina Supreme Court’s

decision in her case and Whitner. The petition raised the

following question:

cocaine during third trimester of pregnancy, causing the baby to be born

with cocaine metabolites in its system. Whitner v. State, 492 S.E. 2d 777

(S.C. 1997), rehearing denied, certiorari denied, 118 S.Ct. 1857, 140

L.Ed. 2d 1004 (this decision is referred to as Whitner I] by the parties to

this action in their pleadings)

App. 26

Whether the South Carolina Supreme Court’s

unprecedented and unforeseeable decision

reinterpreting the state’s criminal child endangerment

statute to expand the definition of “child” in “legal

custody” to include a viable fetus violates the

Fourteenth Amendement’s requirement of due

process notice and its prohibition against vague

criminal statutes?

In a memorandum order dated May 26, 1998, the United

States Supreme Court denied the petition. Cornelia Whitner

v. South Carolina, and Malissa Crawley v. South Carolina,

__ US. __, 1188. Ct. 1857, (1998).

eT A Oey Se eee

Il]. Grounds for Relief

The petitioner filed her writ of habeas corpus in federal

court presenting the following single ground for relief:

Ground one: South Carolina charged Petitioner with

child endangerment for allegedly taking drugs while

she was pregnant. At the time Petitioner pled guilty,

no court of last resort in the nation had permitted

prosecutors to punish prenatal conduct through child

abuse or child endangerment

[page 5 of 20]

laws. Petitioner had no notice that the statute applied

to prenatal conduct: nothing in the plain language of

the statute or in the precedents from South Carolina—

or any other state for that matter-so advised her.

Instead, the South Carolina Supreme Court in Whitner

v. State, 492 S.E.2d 777 (S.C. 1997) created a new

crime that dramatically extended the reach of the

child endangerment statute. The South Carolina

Court then, without opinion, applied this expanded

App. 27

holding when reversing the state court’s grant of

habeas corpus.

(Petition p. 5).

IV. Summary Judgment Motion

R tents’ Moti

On May 21, 1999, the respondents filed a motion for

summary judgment. In their supporting memorandum and a

Return and Memorandum of Respondents’ Motion for

Summary Judgment, the respondents contend that they are

entitled to summary judgment because of the following:

1. The respondents submit that the entire petition for

writ of habeas corpus is barred by the Petitioner’s

failure to comply with the statute of limitations.

Under 28 U.S.C. § 2244(d), the Petitioner had

until January 8, 1999 to file a timely petition. The

Petitioner failed to timely file this action in

accordance with the law.

The court should also dismiss the entire petition

for wnt of habeas corpus because the Petitioner

has defaulted her constitutional claims for federal

review.

3. Even if the present petition was properly before

this court, the petitioner is not entitled to habeas

corpus relief.

A. The Petitioner’s voluntary guilty pleas

waived any due process challenge or

allegation that she

[page 6 of 20]

App. 28

lacked notice of the conduct proscribed by

the statute.

B. The Petitioner’s conviction satisfies due

process requirements because the previous

decisions of the state supreme court gave

her adequate notice that a viable fetus was

protected by the unlawful neglect statute.

C. The application of the statute to other

conduct plainly hazardous to the health

and safety of a viable fetus does not render

it impermissibly vague as applied to

petitioner Whitner [or Crawley].

B. Legal Background

The federal court is charged with liberally construing the

complaints filed by pro se litigants, to allow them to fully

develop potentially meritorious cases. See Cruz v. Beto, 405

U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972).

The court’s function, however, is not to decide issues of fact,

but to decide whether there is an issue of fact to be tried. The

requirement of liberal construction does not mean that the

court can ignore a clear failure in the pleadings to allege facts

which set forth a federal claim, Weller v. Department of

Social Services, 901 F.2d 387 (4th Cir. 1990), nor can the

court assume the existence of a genuine issue of material fact

where none exists. If none can be shown, the motion should

be granted. Fed. R. Civ. P. 56(c).

The movant has the burden of proving that a judgment on

the pleadings is appropriate. Once the moving party makes

this showing, however, the opposing party must respond to

the motion with “specific facts showing that there is a

genuine issue for trial.”

[page 7 of 20]

App. 29

The opposing party may not rest on the mere assertions

contained in the pleadings. Fed. R. Civ. P. 56(e) and Celotex

v. Catrett, 477 U.S. 317 (1986).

The Federal Rules of Civil Procedure encourage the entry

of summary judgment where both parties have had ample

opportunity to explore the merits of their cases and

examination of the case makes it clear that one party has

failed to establish the existence of an essential element in the

case, on which that party will bear the burden of proof at

trial. See Fed. R. Civ. P. 56(c). Where the movant can show

a complete failure of proof concerning an essential element

of the non-moving party’s case, all other facts become

immaterial because there can be “no genuine issue of

material fact.” In this case, the defendants are “entitled to

judgment as a matter of law” under Rule 56(c) because the

plaintiff has failed to make a sufficient showing on essential

elements of her case with respect to which she has the burden

of proof. Celotex, 477 U.S. at 322-323.

vs r Limitat

The respondents argue in their motion for summary

judgment that the entire petition for writ of habeas corpus is

barred by the petitioner’s failure to comply with the statute of

limitations. The focus of this issue is whether or not

petitioner Crawley’s appeal to the United States Supreme

Court from the South Carolina Supreme Court’s denial of

relief tolls the one (1) year time period she had in which to

file her federal habeas petition. Specifically, the respondents

argue that Section 2244(d)(1) states that “A 1-year period of

limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a

State court.” [emphasis added]. The respondents argue that

the one (1) year statute of limitation starts to run when the

state supreme court renders a final “judgment”

[page 8 of 20]

App. 30

and that the petition for U.S. Supreme Court Certiorari does

not toll the time.

The respondents cite the case of Mosely v. Freeman, 997

F.Supp. 733, 735 (M.D.N.C. 1997), to support their position

that the United States Supreme Court is not part of a state

court, nor is review by it part of a state proceeding. In

Mosely, a death row inmate sought the appointment of

counsel and the judge in that case, Judge Eliason, concluded

that the petitioner was not entitled to the appointment of

counsel to challenge the conviction until exhaustion of state

remedies was completed. Mosely indicated that he intended

to seek a writ of certiorari from the United States Supreme

Court to review the denial of collateral relief by the state

supreme court. The court in the Mosely case held that

seeking U.S. Supreme Court review did not toll the one year

statue of limitations for filing a federal habeas petition. The

court ruled, in essence, that the one year time limit for federal

filing begins when the state supreme court renders a final

decision, not after denial of certiorari by the U.S. Supreme

Court. The respondents state that:

Judge Eliason addressed the issue of “whether actual

or potential Supreme Court certiorari review of state

post-conviction relief proceeding should be counted

as part of the time during which the state post-

conviction relief proceeding is pending . . . in

determining that the Supreme Court is not part of a

state court, nor is review by it part of a state

proceeding . . . Judge Eliason held that the time for

seeking certiorari review from the United States.

Supreme Court is not part of a pending post-

conviction relief application. (Emphasis added).

(Respondents’ memorandum p. 6).

The respondents quote from Judge Eliason’s decision that

“there is no implicit, much less explicit, evidence that

Congress intended that federal courts consider United States

App. 31

es TL TT

Supreme Court Certiorari Review of state post-conviction

proceedings to be part of the

[page 9 of 20]

cognizable time period for filing or processing Section 2254

actions.” (Respondents’ memorandum p. 7). Based on the

Mosely decision, the respondents contend that the statute of

limitations was not tolled while the certiorari petition was

pending before the United States Supreme Court, and

therefore, the petitioner had one year from the date when the

state supreme court denied her petition for rehearing to file

her federal habeas petition. The South Carolina Supreme

Court denied the petition for rehearing on January 8, 1998.

The state supreme court denied petitioner’s motion to remain

on bond on January 22, 1998, and denied a petition for

rehearing from that ruling on February 6, 1998. The

respondents argue that only the petitioner’s motion for appeal

bond filed in the United States Supreme Court was pending

before February 27, 1998, and under state law, a motion for

bond is not a pending case or controversy. Therefore, the

respondents argue that the petitioner’s case was not pending

in state court after January 8, 1998, and her petition should

have been filed on or before January 8, 1999. It was not filed

until February 26, 1999. Thus, the respondents assert that the

petition is untimely under 28 U.S.C. § 2244(d)(1).

The petitioner argues that her petition was filed in a

timely fashion and that her writ of certiorari to the United

States Supreme Court did toll the one-year statute of

limitations. The petitioner states that “[her] state habeas

petition, properly filed on September 25, 1994, was

“pending”’ at all times from the date of its filing through May

26, 1998, when the U.S. Supreme Court denied certiorari.

This continuously pending post-conviction action tolled the

one-year statue of limitations until May 26, 1998. The

Statute accordingly provides that she has one year — until

May 26, 1999 — to file her habeas petition. As her petition

App. 32

was filed February 26, 1999, it is timely.” (Petitioner’s

memorandum in opposition p. 4). The

[page 10 of 20]

petitioner primarily bases her argument on the case of

Whitner v. Moore, C.A. No. 2:98-3564-23AJ (D.S.C. Feb.

24, 1999) (Report and Recommendation). As previously

mentioned, Whitner was prosecuted in state court under the

same statute as the petitioner. Whitner filed a federal habeas

petition. In Whitner’s federal habeas petition case, the

respondents filed a motion for summary judgment on the sole

ground that the petition was time barred by the one year

statute of limitations. The matter was referred to US.

Magistrate Judge Robert S. Carr for preparation of a report

and recommendation. The sole issue before the court was

whether the one year time limit for filing a federal habeas

petition should be tolled under 28 U.S.C. § 2244(d) when a

properly filed application for review is pending before the

U.S. Supreme Court.. The issue discussed in Magistrate

Judge Carr’s report and recommendation is the same statute

of limitation issue being discussed in this case. Magistrate

Judge Carr concluded that Whitner’s petition for writ of

certiorari pending before the United States Supreme Court

tolled the one-year statute of limitations. U.S. District Judge

Patrick Michael Duffy adopted Magistrate Judge Carr’s

report and recommendation and issued an order to that effect.

More specifically, the petitioner argues that under Whitner,

Magistrate Judge Carr and U.S. District Judge Duffy

concluded that “tolling the statute of limitations while a

petition for a writ of certiorari pends before the U.S. Supreme

Court is entirely consistent with the purpose of the tolling

provision. It conserves judicial resources by preventing two

courts form reviewing the same claims of the same prisoner

at the same time.” (Petitioner’s return in opposition p. 13).

The petitioner contends that the respondents misconstrued the

Mosely decision in that the issue before the court. . .

[page 11 of 20]

App. 33

... Was not whether the § 2244(d) limitations period

should be tolled while the U.S. Supreme Court is

considering a petition for certiorari. In fact, the Court

was not interpreting the language of § 2244(d)(2) at

all. Rather, the court was determining whether the

period of actual or potential U.S. Supreme Court

certiorari review should be considered when

appointing counsel for death-penalty litigants under §

848(q)(4)(B) . . .This exhaustion analysis is unrelated

to the statute of limitations and tolling provisions of §

2244(d).

(Petitioner’s memorandum in opposition p. 11-12).

The petitioner also argues that when the Mosely decision

is read in its entirety, there is no direct guidance on the issue

currently before this court.

The undersigned concludes that the respondents’

argument is not without merit. However, U.S. District Judge

Duffy, adopting the report and recommendation of

Magistrate Judge Carr, ruled on September 24, 1999, that in

Whitner (2:98-3564-23AJ), the petitioner’s petition in the

United States Supreme Court for a Writ of Certiorari was

“pending” for purposes of § 2244(d)(2), and thus tolled the

section’s one-year filing limitation period until that Court

denied certiorari. Therefore, based on precedent in this

district, the undersigned recommends that the petition not be

dismissed as untimely filed. .

V1. Procedural Default

The respondents argue that the Court should dismiss the

entire petition for writ of habeas corpus because the

petitioner has defaulted her constitutional claims for federal

review. Specifically, the respondents argue that:

App. 34

Since the petitioner did not raise any federal

constitutional claims in her state habeas petition,

those issues were not properly before the state

supreme court . . . the memorandum opinion

reinstating the convictions does not expressly state

that the state supreme court considered the federal

constitutional

[page 12 of 20]

claims; it simply cites Whitner II and section 20-7-50.

However, this court should not presume that the state

supreme court considered the merits of the federal

constitutional issues or declined to apply its

procedural bar.

(Respondents’ memorandum p. 10).

The petitioner opposes this argument stating that the

petitioner fairly presented her constitutional claim to state

courts and the fact that the state court did not rule on the

merits of a claim is of no consequence, citing Atkins v.

Moore, 1998 U.S. App. Lexis 3954, at *14 n.6 (4 Cir. Mar.

5, 1998). The petitioner argues that it is highly illogical for

the state to suggest that the state habeas court’s reliance on

state law grounds for granting habeas relief defaulted Ms.

Crawley’s federal claim. The petitioner cites the case of

Coleman v. Thompson, 505 U.S. 722 (1991), stating that this

case holds that “if the decision of the last state court to which

the petitioner presented his federal claims fairly appeared to

rest primarily on resolution of those claims or to be

interwoven with those claims, and did not clearly and

expressly rely on an independent and adequate state ground,

a federal court may address the petition.” Coleman, 501U:S.

at 735.

The undersigned has reviewed the documents submitted

along with the arguments. The South Carolina Supreme

Court reversed the granting of habeas relief without oral

App. 35

angunem and reinstated the petitioner’s conviction and

sentence. The December 1, 1997, order was only two

sentences concluding that “we reverse the grant of habeas

corpus and reinstate respondent’s conviction for unlawful

neglect of a child. Whitner v. State, Op No. 24468; .. . S.C.

Code Ann. § 20-7-50.” (Respondents’ memorandum p. 3).

Therefore, it is not clear whether or not the decision rested

solely on state grounds. For that reason, the

[page 13 of 20]

undersigned recommends that the petitioners’ claim not be

dismissed as procedurally barred.

Vil. DISCUSSION

A. Guilty Plea

The respondents contend that the petitioner’s voluntarily

guilty plea waived any due process challenge or allegation

that she lacked notice of the conduct proscribed by the

statute. Further, the respondents argue that the petitioner

never challenged the voluntariness of her plea in state court

and, thereby, waived any claim that she lacked notice that her

conduct was prohibited by section 20-7-50. They point to the

case of McCarthy v. United States, 394 U.S. 459, 466 (1969)

quoting “[A] guilty plea is an admission of all the elements

of a formal criminal charge.” The respondents further argue

that “When a criminal defendant has solemnly admitted in

open court that he is, in fact, guilty of that offense with which

he is charged, he may not thereafter raise independent claims

relating to the deprivation of constitutional rights that

occurred prior to the entry of the plea.” Tollet v. Henderson,

411 U.S. 258, 267 (1973). The respondents conclude that the

petitioner has not preserved any justiciable constitutional

claims for federal habeas corpus relief and the petition

should, therefore, be dismissed.

App. 36

The petitioner argues that in decisions subsequent to

Tollett, the U.S. Supreme Court has made clear that a plea of

guilty does not waive a claim that the charge is one which the

state may not constitutionally prosecute. Menna v. New

York, 423 U.S. 61, 62 n.1 (1975). The petitioner further

states that her guilty plea did not forfeit her right to raise her

due process claim in federal court.

The undersigned has reviewed each parties’ argument and

their supporting case law.

[page 14 of 20]

The respondents present a persuasive argument that by

pleading guilty, the petitioner waived her right to raise

independent claims relating to constitutional questions. The

respondents cite the Jollet case to support their position.

However, even though this is a close issue, the United States

Supreme Court has recognized one exception to the general

rule when the defendant’s claimed right is “the right not be

haled into court at all upon the felony charges.” United

States of America v. Drew, 2000 WL 35563 (D.C.Cir. 2000),

citing United States v. Broce, 488 U.S. 563, 574-75 (1989).

The Fourth Circuit has held that a guilty plea does not

prevent collateral attack on judgment where claim is that the

underlying statute is unconstitutional. United States v. Bluso,

519 F.2d 473 (4" Cir. 1975). Therefore, the undersigned

concludes that the guilty plea of the petitioner did not

arguably waive her claim if it goes to the constitutionality of

the statute itself. Thus, the undersigned recommends that the

petition not be dismissed based ‘on the fact that the petitioner

pled guilty and further recommends that the merits be

addressed.

B. Conviction Satisfies Due P - Viable F

The respondents argue that the petitioner’s conviction

satisfies due process requirements because the previous

decisions of the state supreme court gave her adequate notice

App. 37

that a viable fetus was protected by the unlawful neglect

statute. The respondents contend that previous precedents of

the state supreme court gave the petitioner ample notice that

a viable fetus was a “person” and therefore a “child” under

the unlawful neglect statute so’that, although section 20-7-50

did not proscribe fetal abuse specifically, the application of

the statute to this set of facts did not violate due process. The

respondents assert that “since petitioner has not shown that

the decision reinstating her conviction ‘was contrary to,

[page 15 of 20]

or involved an unreasonable application of, clearly

established federal law, as determined by the Supreme Court

of the United States. . . ,’ this court should deny habeas

corpus relief, 28 U.S.C. § 2254(d)(1).” (Respondents’

memorandum p. 22-23).

The petitioner argues that the cases upon which the state

relies in their memorandum to support summary judgment as

well as the statute itself failed to provide her with

constitutionally adequate notice. (Petitioner’s memorandum

in opposition p. 24). The petitioner contends that :

The state insists that Ms. Crawley should have known

that the child endangerment law criminalized her

behavior, but ignores the fact that at the time of Ms.

Crawley’s conviction, no circuit court in South

Carolina had interpreted the Hall, Fowler, and Horne

cases (Cases cited by the respondents to support their

position) to extend the reach of the child

endangerment law. See Crawley v. Evatt, no. 94-CP-

04-1280 (S.C. Ct. Gen. Sess. Oct. 17, 1994). Surely,

Ms. Crawley cannot fairly be held to a deeper

understanding of the law than all the circuit courts

that had examined this issue at the time of her

conviction.

(Petitioner’s memorandum in opposition p. 23-25).

App. 38

EARNED ali I Lhe =

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mad

, race tel BAER Ry BO PF ey:

are yt

The petitioner asserts that she could not have foreseen

that the reference of a “child” in the unlawful neglect statute

included an unborn, viable fetus. Specifically, she contends

that she had no notice that the statute prohibited her ingestion

of cocaine while pregnant.

At the time of petitioner’s crime, S.C. Code Ann. § 20-7-

30(1) (1985) defined child as ‘‘a person under the age of

eighteen.” The United States Supreme Court has held that

the unforeseeable enlargement of a criminal statute deprives

a defendant of due process of law where she has no notice

that her conduct was criminal. Bouie v. City of Columbia,

378 U.S. 347 (1964). The question that should be addressed

is whether or not the statute, either

[page 16 of 20]

standing alone or as construed, makes it reasonably clear at

the relevant time that the defendant’s conduct was criminal.

United States v. Lanier, 520 U.S. 259, 267 (1997). Pnor

precedents of the state courts explaining the meaning of a

statute are appropriate in determining whether the defendant

had notice that her conduct was prohibited. Wainwright v.

Stone, 414 U.S. 21, 22-23 (1973). The respondents argue

that in determining whether the petitioner had adequate

notice that section 20-7-50 applied to her conduct, this court

should consider the case law relied upon by the state supreme

court citing the case of Whitner, 492 S.E.2d at 779-80.

The respondents discuss several cases to support their

position. The respondents point to Hall V. Murphy, 236 S.C.

257, 113 S.E.2d 790 (1960) asserting that it was the first case

in which the state supreme court held that a viable fetus was

a “person” under state law. In the Hall case, the defendant

was the driver of a car which collided with a bus, causing his

passenger to give birth prematurely. The child died four

hours later. The court concluded that “we have no difficulty

in concluding that a fetus having reached that period of

App. 39

prenatal maturity where it is capable of independent life apart

from its mother is a person and if such a child is injured, it

may after birth maintain an action for such injuries . . . the

law recognizes the separate existence of an unborn child for

the purpose of protecting his property rights and to protect

him against criminal conduct.” Hall, 113 S.E. 2d at 793.

In the case of Fowler v. Woodward, 244 S.C. 608, 138

S.E.2d 42(1964), an automobile accident killed a woman who

was eight months pregnant. When the plaintiff filed suit on

behalf of the estate of the deceased infant, the defendant

moved to dismiss because there was not an allegation that the

infant was born alive. The state supreme court

[page 17 of 20]

disagreed and concluded that the plain language of the

wrongful death statute allowed an action on behalf of the

estate of a viable fetus. The state supreme court stated in their

decision that “ a viable child is a person before separation

from the body of its mother.”

In State v. Horne, 282 S.C. 444, 319 S.E. 2d 703 (1984),

the state supreme court concluded that a viable fetus was

protected by the criminal law of this state. In that case, the

defendant stabbed his pregnant wife in the abdomen and

during an emergency caesarean section operation, the unborn

child died in the womb. The defendant was charged with

murder, ané the jury convicted him of manslaughter. On

appeal, i: state supreme court held that the language of the

murder statute allowed a prosecution for the unlawful killing

of a viéale fetus. The state court noted that “It would be

grossly inconsistent for us to construe a viable fetus as a

‘person’ for the purposes of imposing civil liability while

refusing to give it a similar classification in the criminal

context.” Horne, 282 S.C. at 477, 319 S.E.2d at 704.

As previously noted, the state supreme court in Cornelia

Whitner held that she had notice that her unborn, viable fetus

App. 40

was a “child” protected by section 20-7-50. As the

respondents correctly argue, the state supreme court in

Whitner, noted that state law defines “child” as “a person

under the age of eighteen.” Therefore, although the statute

20-7-50 did not state that a child included a viable fetus, the

meaning of “person” brings a viable fetus under its

definition.

The petitioner also argues that she could not have known

section 20-7-50 applied to her criminal conduct because other

states prohibited prosecutions for prenatal abuse of a fetus.

However, even if the South Carolina Supreme Court has

reached a different conclusion

[page 18 of 20]

than other states, the correctness of the state supreme court’s

interpretation of the statute may not be reviewed in this

Court. According to relevant case law, this Court is bound to

accept the interpretation of South Carolina law by the highest

court of the state. See Hortonville Joint School Dist. v.

Hortonville Educ. Ass'n, 426 U.S. 482, 488 (1976).

The undersigned finds that the state supreme court’s

interpretation of the statute was fully within due process

guarantees based upon existing precedent. Therefore,

although section 20-7-50 did not specifically state “fetal

abuse” in its wording, the application of the statute to the

petitioner’s case did not violate due process. Thus, since the

petitioner has failed to show that the decision reinstating her

conviction was “contrary to, or involve an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States. . .” 28 U.S.C. §

2254(d)(1), the undersigned recommends that the

respondents’ motion for summary judgment be granted on

this issue and habeas corpus relief denied.

C. Vagueness

App. 41

The petitioner argues that the application of the statute is

impermissibly vague because it gives the State unbridled

discretion in determining which conduct to prosecute. The

petitioner states in her memorandum in opposition to the

respondent’s position that:

While it is true that the unpredictable and unlimited

breadth of the newly construed child endangerment

statute will confound pregnant women and

prosecutors in the future, the claim in this case is

based on the fact that the statute did not inform Ms.

Crawley herself of the range of prohibited behavior,

or whether her conduct fell within the scope of the

statute. The Due Process clause requires more, and

the State has not demonstrated that the child

endangerment statute gave Ms. Crawley the fair

warning required by the Constitution.

[page 19 of 20]

(Petitioner’s memorandum p. 25).

The respondents argue that the application of the statute

to other conduct plainly hazardous to the health and safety of

a viable fetus does not render it impermissibly vague.

Specifically, the respondents assert that the petitioner is

asking this Court to review a hypothetical application of the

statute, when the petitioner’s case comes squarely within its

parameters. In addition, they assert that “this Court should

not grant habeas corpus relief on the basis of potential

prosecutions that may never occur.” (Repondents

memorandum p. 24-26)

The undersigned has reviewed each parties’ argument and

all evidence presented. The court in United States v.

Mazurie, 419 U.S. 544, 550 (1975), held that “It is well

established that vagueness challenges to statutes which do

not involve First Amendment freedoms must be examined in

the light of the facts of the case at hand.” In this case, the

App. 42

petitioner pled guilty to the crime charged. The voluntariness

of the guilty plea is not an issue before this Court. One to

whose conduct a statute clearly applies may not successfully

challenge it for vagueness. Parker v. Levy, 417 U.S. 733,

756 (1974).

Regarding this issue, the petitioner argues that the child

endangerment statute “did not inform Ms. Crawley herself of

the range of prohibited behavior, or whether her conduct fell

within the scope of the statute.” The undersigned disagrees.

A review of the statute and its language make it clear that

it is a crime to unlawfully “neglect” or “endanger” a child.

The South Carolina Supreme Court held that a viable fetus is

a “child” within the statute and entitled to protection.

Previous cases cited in section VII B of this report and

recommendation also have reached this same conclusion.

[page 20 of 20]

The statute provides sufficient notice to the petitioner that

her conduct was prohibited behavior. The undersigned

concludes it is not unconstitutionally vague. Thus, the

undersigned recommends that the respondents’ motion for

summary judgment be granted on this issue.

VIL. Conclusion

In summary, the undersigned recommends that the

petitioner’s claim not be summarily dismissed as untimely

filed or procedurally barred. However, the undersigned

recommends that summary judgment be granted as the

undersigned concludes that the petitioner’s conviction did not

violate due process nor was the relevant state statute

unconstitutionally vague. For these reasons, it is

recommended that respondents’ motion for summary

judgment be granted, and the petition be dismissed without

an evidentiary hearing.

App. 43

Respectfully Submitted,

6é W ”

Terry L. Wooten

United States Magistrate Judge

February 18th. 2000

Florence, South Carolina

App. 44

In the Supreme Court

of the United States

MEMORANDUM DECISION

Cite as 118 S. Ct. (1998)

Cornelia WHITNER, petitioner, v. SOUTH

CAROLINA; and Melissa Ann CRAW-

LEY, petitioner, v. SOUTH CAROLINA.

No. 97-1562.

May 26, 19°°.

Case below, 328 S.C. 1, 492 S.E.2d 777.

Motion of National Association of Alcoholism & Drug

Abuse Counselors, et al., for leave to file a brief as amici

curiae granted. Petition for a writ of certiorari to the

Supreme Court of South Carolina denied.

App. 45

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Malissa Ann Crawley, Respondent,

Parker Evatt,

Commissioner of the

South Carolina

Department of

Corrections, Appellant.

Appeal From Anderson County

Frank Eppes, Judge

Memorandum Opinion No. 97-MO-117

Submitted December 18, 1996 — Filed December 1, 1997

REVERSED

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa Knox, and

Assistant Attorney General G. Robert Deloach, III,

all of Columbia, for appellant.

C. Rauch Wise, of Greenwood, and Lynn M.

Paltrow, of New York, New York, for respondent.

PER CURIAM: The State has filed an appeal following

the grant of respondent’s petition for a writ of habeas corpus.

We reverse the grant of habeas corpus and reinstate

App. 46

respondent’s conviction for unlawful neglect of a child.

Whitner v. State, Op. No. 24468 (S.C. Sup. Ct. refiled

[page 2 of 2]

October 27, 1997) (Davis Adv. Sh. No. 30 at 27); S.C. Code

Ann. § 20-7-50 (Supp. 1995).

REVERSED.

“s/Jean H. Toal”_ A.J.

“s/John H. Waller, Jr.” A.J.

“s/E.C, Burmett, II” A.J.

We adhere to our dissenting opinions in Whitner v. State,

Op. No. 24468 (S.C. Sup. Ct. Refiled October 27, 1997)

(Davis Adv. Sh. No. 30 at 27) and would affirm.

“s/Emest A. Finney, Jr.” C.J.

“s/James E. Moore” _ A.J.

App. 47

FILED-CLERKS QFFICE

ANDERSON, SC

OCT 17 12:34 P.M. °94

COMMON PLEAS AND

GENERAL SESSIONS

ENTERED

11-1-94

STATE OF SOUTH CAROLINA _ )

) IN THE COURT OF

COUNTY OF ANDERSON ) COMMON PLEAS

Malissa Ann Crawley, “7

)

Petitioner, ) ORDER

)

-VS- ) 94-CP-04-1280

)

Parker Evatt, Commissioner of )

the South Carolina Department )

of Corrections, )

)

Respondent. )

The petitioner, Malissa Ann Crawley, filed her Habeas

Corpus Petition alleging that she plead guilty to a crime that

does not exist in South Carolina. She contends she is being

held unlawfully in violation of the due process clause of

Article I, § 3 of the Constitution of the State of South

Carolina and the Fourteenth Amendment of the Constitution

of the United States of America. She plead to a violation of

S. C. Code § 20-7-50, the child abuse or neglect statute. '

' The statute provides: “Any person having legal custody of any child or

helpless person, who shall, without lawful excuse, refuse or neglect to

provide, as defined in § 20-7-490, the proper care and attention for such

child or helpless person, so that the life, health, or comfort of such child

or helpless person is endangered or is likely to be endangered, shall be

App. 48

O)_L eo

Prior to the hearing the parties stipulated to certain facts

and introduced exhibits. On January 6, 1992 the petitioner

pled to a child of child neglect arising out her giving birth to

[page 2 of 3]

child who tested positive for cocaine. On August 5, 1994 the

court revoked her probation and sentenced her to five years

imprisonment after she was charged with violating her

probation. She is presently being held on that charge. The

respondent does not contest the authority of the court to grant

relief under the South Carolina habeas corpus statute. The

sole question for the court is whether the petitioner pled

guilty to a crime that does not exist in South Carolina. If she

has, the use of the habeas corpus statute is certainly

appropriate. Butler v. State, 302 S.C. 466, 397 S.E.2d 87

(1990).

The issue involved in this case is identical to several

other cases that have arisen in this state. At present the South

Carolina Supreme Court has agreed to hear one case that will

resolve this case and all other pending cases. The court has

reviewed the briefs filed on behalf of both parties filed with

the South Carolina Supreme Court. As this case will be

controlled by that decision, and all other circuit court that

have addresed the issue have resolved the issue in favor of

the petitioner, this court feels that it must also grant the relief

requested.

The Court by its order does not condone the actions of the

petitioner in taking drugs while pregnant. The conditions

imposed by the court in her appeal bond order hopefully will

help the petitioner in her drug abuse problem. The court also

recognizes the fact that the state cannot give back to the

guilty of a misdemeanor and shall be punished within the discretion of the

court.

App. 49

petitioner any time she may serve while the issue makes its

way through the courts. The petitioner can, however, always

give the

[page 3 of 3]

time back to the state in the event this case is reversed.

WHEREFORE, it is hereby order adjudged and decreed

that the guilt plea and conviction of the petitioner is hereby

set aside. The indictment for a violation of S.C. Code § 20-7-

60 is hereby dismissed.

10/17/, 1994 “s/Frank Eppes”

FRANK EPPES

Presiding Judge

Anderson County

App. 50

[South Carolina Supreme Court Seal]

The Supreme Court of South Carolina

CLYDE N. DAVIS, JR. P.O. Box 11330

CLERK OF COURT COLUMBIA, S.C. 29211

BRENDA F. SHEALY (803) 734-1080

DEPUTY CLERK

January 8, 1998

C. Rauch Wise, Esquire

Wise & Tunstall

305 Main St,

Greenwood, SC 29646

Re: Crawley, Malissa v. Parker Evatt, et al.

Dear Mr. Wise:

The Court has refused your Petition for Rehearing in the

above case in the following Order:

“Petition for Rehearing is denied.

s/ Jean H. Toal A.J.

s/ John H. Waller, Jr. A.J.

s/ E.C. Burnett, II A.J.

I would grant Rehearing.

s/ Emest A. Finney, Jr.__C.J.

s/ James E. Moore A.J.

January 8, 1998.”

App. 51

The remittitur in this matter is today being forwarded to the

Clerk of Court for Anderson County.

Very truly yours,

“s/Clyde N. Davis, Jr.”

CLERK

CND, Jr./djp

App. 52

ORIGINAL FILED

FEB 26 1999

LARRY W. PROPES, CLERK

COLUMBIA, SC

0 99-0527 13BD

APPLICATION FOR HABEAS CORPUS UNDER 28

U.S.C. § 2254

Name Malissa Ann Crawley

Prison number SCDC 212641

Place of confinement On parole from State Park

United States District Court for the District of South

Carolina (Columbia Division)

Case No.

(To be supplied by Clerk of U. S. District Court)

Malissa Ann Crawley _, PETITIONER

(Full name)

William D. Catoe : RESPONDENT

(Director-Designate, Department of Corrections, State of

South Carolina)

and

THE ATTORNEY GENERAL OF THE STATE OF South

Carolina, and Stephen K. Benjamin, Director-Designate,

South Carolina Department of Probation, Parole &

Pardon Services ADDITIONAL RESPONDENTS.

PETITION FOR WRIT OF HABEAS CORPUS BY A

PERSON IN STATE CUSTODY

Instructions: Read Carefully

(1) This petition must be legibly handwritten or typewnitten,

and signed by the petitioner under penalty of perjury. Any

App. 53

false statement of a material fact may serve as the basis for

prosecution and conviction for perjury. All questions must be

answered concisely in the proper space on the form.

(2) Additional pages are not permitted except with respect to

the facts which you rely upon to support your grounds for

relief. No citation of authorities need be furnished. If briefs

or arguments are submitted, they should be submitted in the

form of a separate memorandum.

(3) Upon receipt of a fee of $5 your petition will be filed if it

is in proper order.

(4) If you do not have the necessary filing fee, you may

request permission to proceed in forma pauperis, in which

event you must execute the declaration on the last page,

setting forth information establishing your inability to prepay

the fees and costs or give security therefor. If you wish to

proceed in forma pauperis, you must have an authonzed

officer at the penal institution complete the certificate as to

the amount of money and securities on deposit to your credit

in any account in the institution. If your prison account

exceeds $__, you must pay the filing fee as required by the

rule of the district court.

(5) Only judgments entered by one court may be challenged

in a single petition. If you seek to challenge judgments

entered by different courts either in the same state or in

different states, you must file separate petitions as to each

court.

(6) Your attention is directed to the fact that you must include

all grounds for relief and all facts supporting such grounds

for relief in the petition you file seeking relief from any

judgment conviction.

[Page 2 of 7]

App. 54

(7) When the petition is fully completed, the original and

two copies must be mailed to the Clerk of the United States

District Court whose address 1s:

United States District Court for the District of South

(8) Petitions which do not conform to these instructions will

be returned with a notation as to the deficiency.

PETITION

1. Name and location of court which entered the judgment of

conviction under attack reme Court of the State

of South Carolina.

2. Date of judgment of angi

il : 199

date of probation rev son August 5, 1994

wri w n state

i Ww side a

indictment dismissed): Oct. 17, 1994

date state court grant of writ of habeas corpus was

Vv e ourt:

December 1, 1997

4. Nature of offense involved (all counts)

Pled guilty to one count of endangering a child

pursuant to S.C. Code § 20-7-50 when her

newborn tested positive for cocaine.

App. 55

5. What was your plea? (Check one)

(a) Not guilty __

(b) Guilty X_

If you entered a guilty plea to one count or indictment, and a

not guilty plea to another count or indictment, give details:

6. Kind of trial: (Check one)

(a) Jury

(b) Judge only __

No trial, pled guilty.

[Page 3 of 7]

7. Did you testify at the trial?

YeX No__

Testified at guilty plea colloquy.

8. Did you appeal from the judgment of conviction?

Yes Nox

9. If you did appeal, answer the following:

(a) Name of court

(b) Result

10. Other than a direct appeal from the judgment of

conviction and sentence, have you previously filed any

petitions, applications, or motions with respect to this

judgment in any court, state or federal?

Yes No

11. If your answer to 10 was "yes," give the following

information:

(a)(1) Name of court South Carolina Court of Common

Plea unty of Ander

App. 56

(2) Nature of proceeding Petition for Writ of Habeas

Corpus

(3) Grounds raised

. =

oy ee ee a Fourteenth A : discriminati r

basis of sex in violati f the Fourt

Amendment

(4) Did you receive an evidentiary hearing on your

petition, application or motion?

Yes X No__

(5) Result habeas petition granted, conviction set

id 1 indict + dismissed

(6) Date of result October 17, 1994

(b) As to any second petition, application or motion give

the same information:

(1) Name of court

(2) Nature of proceeding

(3) Grounds raised

(4) Did you receive an evidentiary hearing on your

petition, application or motion?

Yes No__

(5) Result

(6) Date of result

same information:

(1) Name of court

(2) Nature of proceeding

(3) Grounds raised

(4) Did you receive an evidentiary hearing on your

petition, application or motion?

» oa ee

(5) Result

[Page 4 of 7]

(6) Date of result

App. 57

(d) Did you appeal to the highest state court having

jurisdiction the result of action taken on any petition,

application or motion?

(1) First petition, etc. Yes No

(2) Second petition, etc. Yes No

(3) Third petition, etc. Yeo No _

(e) If you did not appeal from the adverse action on any

petition, application or motion, explain briefly why you did

not:

The State of South Carolina appealed the state

; ner - ;

court's decision granting habeas relief. The South “ oe ecg

apne eam = cme pero tate hal ._ Petiti filed iti

for wri iorari wi S. m rt

which w nied 2 9

12. State concisely every ground on which you claim that you

are being held unlawfully. Summarize briefly the facts

supporting each ground. If necessary, you may attach pages

stating additional grounds and facts supporting same.

Caution: In order to proceed in the federal court, you

must ordinarily first exhaust your state court remedies as to

each ground on which you request action by the federal court.

If you fail to set forth all grounds in this petition, you may be

barred from presenting additional grounds at a later date.

For your information, the following is a list of the most

frequently raised grounds for relief in habeas corpus

proceedings. Each statement preceded by a letter constitutes a

separate ground for possible relief. You may raise any

grounds which you may have other than those listed if you

have exhausted your state court remedies with respect to

them. However, you should raise in this petition all available

grounds (relating to this conviction) on which you base your

allegations that you are being held in custody unlawfully. Do

not check any of these listed grounds. If you select one or

more of these grounds for relief, you must allege facts. The

App. 58

petition will be returned to you if you merely check (a)

through (j) or any one of these grounds.

(a) Conviction obtained by plea of guilty which was

unlawfully induced or not made voluntarily with

understanding of the nature of the charge and the

consequences of the plea.

(b) Conviction obtained by use of coerced confession.

pursuant to an unconstitutional search and seizure.

(d) Conviction obtained by use of evidence obtained

pursuant to an unlawful arrest.

(e) Conviction obtained by a violation of the privilege

against self-incrimination.

(f) Conviction obtained by the unconstitutional failure of

the prosecution to disclose to the defendant evidence

favorable to the defendant.

(g) Conviction obtained by a violation of the protection

against double jeopardy.

(h) Conviction obtained by action of a grand or petit jury

which was unconstitutionally selected and impaneled.

(i) Denial of effective assistance of counsel.

(j) Denial of right of appeal.

[Page 5 of 7]

A. Ground one: Denial of due process

Supporting FACTS (tell your story briefly without citing

cases or law):

App. 59

13. If any of the grounds listed in 12A, B, C, and D were not

previously presented in any other court, state or federal, state

briefly what grounds were not so presented, and give your

reasons for not presenting them:

14. Do you have any petition or appeal now pending in any

court, either state or federal, as to the judgment under attack?

Yes __ No X

15. Give the name and address, if known, of each attorney

who represented you in the following stages of the judgment

attacked herein:

(a) At preliminary hearing:

There was no preliminary hearing.

(b) At arraignment and plea:

Robert Gamble

Office of the Public Defender

301 Camson Road

Anderson, SC_29625_

App. 60

There was no trial.

(d) At sentencing (was sentenced at time of plea):

Robert Gamble

Office of the Public Defender

301 Camson Road

Anderson, SC_ 29625

(e) On appeal

There was no direct appeal.

(f) In any post-conviction proceeding

Writ of habeas corpus in South Carolina court:

C. Rauch Wise ~

[Page 6 of 7]

(g) On appeal from any adverse ruling in a post-

conviction proceeding:

The following attorneys represented Petitioner in her

petition for writ of certiorari:

Lynn M. Paltrow C. Rauch Wise

Barbara J. Olshansky American Civil Liberties

Laura Davis Union of South

App. 61

Rights 305 Main Street

666 Broadway, 7th floor Greenwood, SC 29646

New York, NY _ 10012

16. Were you sentenced on more than one count of an

indictment, or on more than one indictment, in the same court

and at the same time?

Yes No X

17. Do you have any future sentence to serve after you

complete the sentence imposed by the judgment under

attack?

Yes __ No X

(a) If so, give name and location of court which imposed

sentence to be served in the future:

(b) And give date and length of sentence to be served in the

future:

attacking the judgment which imposed the sentence to be

served in the future?

Yes No__

[Page 7 of 7]

Wherefore, petitioner prays that the Court grant petitioner

relief to which he may be entitled in this proceeding.

oe Wi ”

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury

that the foregoing is true and correct. Executed on February

25,1999 (date).

“ . ”

Signature of Petitioner

App. 62

FILED CLERK’S OFFICE

OCT 9 [illegible]

COMMON PLEAS AND

GENERAL SESSIONS

STATE OF SOUTH CAROLINA _ )

) IN THE COURT OF

COUNTY OF ANDERSON ) COMMON PLEAS

Malissa Ann Crawley,

Petitioner,

Petition for

-VS-

Corpus

Parker Evatt, Commissioner,

South Carolina Department

of Corrections,

)

) Wnit of Habeas

)

) 94-CP-04-1280

)

Respondent.

The petitioner, Malissa Ann Crawley, alleges and would

show to the Court as follows;

1. The petitioner is presently incarcerated with the Leath

Correctional Institution of the South Carolina Department of

Corrections.

2. The respondent is the Commissioner for the South

Carolina Department of Corrections as the petitioner is

presently being held within the South Carolina Department of

Corrections.

3. On January 6, 1992 the petitioner plead guilty to a

charge of Unlawful Neglect of a Child. The facts giving rise

to the charge are that the petitioner allegedly took cocaine or

App. 63

crack cocaine while she was pregnant. At the time of her

plea the trial judge placed her on probation.

4. On August 5, 1994 the petitioner had her probation

revoked and the trial

[page 2 of 2]

judge sentenced her to five years imprisonment.

5. The petitioner believes that she is being held

unlawfully due to the fact that the act to which she plead

guilty is not a crime in the state of South Carolina. As a

result, the trial court did not have jurisdiction to either accept

her plea or to revoke her probation. As the charge against

her, based upon the act she is alleged to have committed, is

not a crime within the State of South Carolina, she is being

held in violation of the due process clause of Article I, § 3 of

the Constitution of the State of South Carolina and the

Fourteenth Amendment of the Constitution of the United

States of America.

6. The petitioner requests that this court issue its Wnt of

Habeas Corpus requiring the defendant to produce the

petitioner before the court and to show why the petitioner

should not be released from confinement.

WHEREFORE, the petitioner prays that this court issue

its Writ-of Habeas Corpus requiring the respondent to

produce the petitioner before the court and show why the

petitioner should not be released from confinement and for

such other and further relief as the court may deem just and

proper.

September 25, 1994 ~s/ Wise”

C. RAUCH WISE

Wise & Tunstall

408 Main Street

Greenwood, SC 29646

App. 64

(803) 299-5010

S.C. Bar No. 006188

Attorney for Petitioner

App. 65

FILED CLERKS OFFICE

ANDERSON

AUG 6 11:39AM ’94

COMMON PLEAS AND

GENERAL SESSION

ORDER

State of South Carolina IN THE COURT OF GENERAL

County of Anderson SESSIONS

No. 92 —- GS — 04-01

STATE

-VS- Unlawful Neglect of Child

Name of Offense

Malissa A. Crawley 11-06-61

DEFENDANT SCDC# or DOB

00363124-01

Whereas the above named defendant has been charged

with violating the conditions of probation ordered on 1-6,

1992 in the court of General Sessions of Anderson County as

set forth in the warrant or citation filed herein.

After hearing the evidence and being duly advised, I find

the defendant has violated one or more of the conditions of

supervision as set forth in the affidavit filed herein and dated

7-22, 1994 a copy of which is incorporated by reference.

IT IS ORDERED that the suspended sentence be revoked

and the above named defendant be required to serve 5

meonths/years of the 5 menths/years sentence identified

above, and/or pay $ : the defendant is not to be

reinstated on probation. This action is taken in the

(presence/absenee) of the defendant.

IT IS ORDERED that the suspended sentence be revoked

and the above named defendant be required to serve

App. 66

months/years of the original

months/years sentence (and/or) pay $

thereupon to be reinstated on probation as provided in

the sentence identified above and subject to the

- conditions set forth therein and not inconsistent with this

order. This action is taken in the (presence/absence) of

the defendant.

IT IS ORDERED that the suspended sentence be revoked

and the above named defendant be required to serve

months/years (and/or) pay $ ; the

defendant is not to be reinstated on probation. This

action is taken in the (presence/absence) of the defendant.

The defendant has previously served 0 months/years on

this sentence.

IT IS ORDERED that the above named defendant is

continued on probation as provided for in the sentence

identified above and subject to the conditions set forth -

therein and not inconsistent with this order. This action is

taken in the (presence/absence) of the defendant.

Additional Conditions ordered by the Court:

5 day of August, 1994 “s/Frank Eppes”

Presiding Judge

Anderson, SC 10" Circuit

You are hereby advised that under the law the Court may

at any time revoke or modify any condition of this probation;

impose any lawful special conditions it deems proper; or it

may extend your period of probation not to exceed five (5)

years. At any time within the period of your probation, the

(

App. 67 ©

Court may, if it sees fit, impose any judgment and sentence it

might have [illegible] in the first instance.

This is to certify that I have read or have had read to me

the Order and the conditions set out therein. I agree to

comply with such conditions and the conditions of my

probation order identified above during the period of my

probation. I have received a copy of this court order and my

sentence identified above.

Witnessed by: “‘s/Ralph S. Scott” Signed:

Probationer

this 5 day of August, 1994, at Anderson, S.C.

App. 68

Recommended SENTENCE

STATE OF SOUTH CAROLINA

CASE NO. 92-GS-04-01

ANDERSON COUNTY

The defendant Malissa Ann Crawley is committed to the

State Department of Corrections/County for a term of 3

(Five) menths/years and/or to pay a fine of $ :

provided upon the service of months/years and/r+

payment of $ , plus pay/waive costs and

assessments as applicable*, the balance suspended with

probation for 5 (Five) menths/years.

Restitution For physical injury $

Yes/No property damage $

to be paid

to clerk for hind

Other conditions ; hi ended for

substance abuse; and comply with any Family Court Orders:

random drug testing: supervision fees exempt due to financial

Also ADAC fees exempt.

Date January 6, 1992 “s/ Tom J. Ervin”

Presiding Judge

*Costs and Assessments

Non-waivable §$

Not waived $ NEGOTIATED PLEA

Total $

“‘s/Linda G. DeShields”

Court Reporter Clerk of Court

App. 69

**Pay to Victim’s Compensation Fund if subrogated.

[page 2 of 3]

Form 2 (11/90)

STATE OF SOUTH CAROLINA

COURT General Sessions

COUNTY OF Anderson January 6, 1992

Term

STATE

-VS- PROBATION ORDER

issa wle No. 92. -GS- 04-0O1

Defendant

OFFENSE Unlawful Neglect of Child

The sentence of the Court is that the defendant, Malissa Ann

Crawley, shall [illegible] in the custody of the Board of

Corrections of the State of South Carolina for a term of five

(5) years tand/er)-pay-e-fine-of $———-; provided that upon

the serviee-of——tand/or) payment of $ 10.00cc that the

balance of the aforesaid sentence be and the same is hereby

suspended and that the said defendant is hereby placed on

probation for a period of five years under the supervision of

the South Carolina Probation, Parole, and Pardon Services

Board and its agents, subject to the provisions of the laws of

this State and the rules and orders of the Board and its agents,

with leave that the suspended sentence may be revoked at

any time during the period of probation.

THAT AS CONDITIONS OF PROBATION THE

AFORESAID SHALL:

App. 70

Report in person within 48 hours after arrival at his

destination to the Supervising Agent.

Restrict his activity to those programs approved by his

Supervising Agent.

Refrain from changing his residence or employment

without first procuring the consent of his Supervising

Agent.

Make a complete and truthful report to his Supervising

Agent each month and whenever instructed to by his

Supervising Agent until his final release.

Not use controlled substances, except when properly

prescribed by a licensed physician.

Not consume alcoholic beverages to excess or visit

establishments whose primary business is the

dispensation and consumption of alcoholic beverages.

Avoid injurious habits and shall associate oniy with law-

abiding persons.

In all respects, conduct himself honorably, work

diligently at a lawful occupation, and support his

dependents, if any, to the best of his ability.

Refrain from the violation of any Federal, State, or Local

penal law, and shall contact his supervising agent

immediately if arrested or questioned by a law

enforcement official.

Not leave the State without authorization and shall waive

all extradition rights and process and agree to return to

South Carolina when directed to by the Court or pursuant

to a warrant.

Not possess or purchase a weapon.

Promptly and truthfully answer all inquiries from the

Court or Supervising Agent and allow the Agent to visit

at any time in his home, at his employment site or

elsewhere, and carry out all instructions given by the

Agent.

Comply with all provisions of this order including the

payment of fines, restitution or other payments and the

service of any period of incarceration.

App. 71

Immediately notify his supervising agent in case of

unemployment and/or absenteeism from work and in case

of illness or injury.

Submit to a urinalysis test and/or a blood test when

requested by his Supervising Agent and agree that the test

results may be used as evidence that he did or did not

violate these conditions.

ORDER CONTINUED ON REVERSE SIDE

[page 3 of 3]

ORDER CONTINUED FROM REVERSE SIDE

92-GS - 04-Q1

Pay a supervision fee to the South Carolina Department

of Probation, Parole, and Pardon Services of $10 per

week while under intensive supervision and $240 per

year while under any other level of supervision during

conditional release.

Additional Conditions ordered by the Court:

To comply with Family Court orders; any counseling as

recommended for substance abuse; random drug testing;

supervision fee exempt due to financial hardship; also,

ADAC fees exempt.

IT IS FURTHER ORDERED: that the Sheriff or other law

enforcement officer who has the custody of the defendant is

hereby ordered to deliver said defendant to the Probation

Office of this District, or if defendant is under bond, then

such bond shall remain in full force until said defendant

reports to the Probation Office. The conditions of probation

begin (today/afer-serviee-of+ree pended

sentenee). It is further ordered that pt Clerk of Court

[illegible] this order in his office and that he forthwith

App. 72

forward certified copy to Probation Office of the South

Carolina Probation, Parole, and Pardon Services Board.

this 6th day of January 1992, “s «*LLEnrvin”

Pres.uing Judge

Honcrable Tom J. Ervin

Anderson, S.C. Tenth Judicial Circuit

You are hereby advised that under the law the Court may

at any time revoked or modify any condition of this

probation; impose any special conditions it deems proper; or

it may extend your period of probation not to exceed five (5)

years.

You shall be subject to arrest, upon order of the Court, or

without order of the Court, by the Probation Agent. At any

time within the period of your probation, the Court may, if it

sees fit, impose the judgement and sentence it might have

imposed in the first instance.

This is to certify that I have read or have had read to me

the Order of Probation and the conditions set out therein. I

agree to comply with such conditions during the period of my

probation. I have received a copy of this court order.

Witnessed by: Ralph S. Scott Signed: ‘‘s/M. Crawley”

Probationer

Signed this 6th day of January, 1992, at Anderosn, SC.

STATE OF SOUTH CAROLINA )

) IN THE COURT OF

COUNTY OF ANDERSON ) GENERAL SESSIONS

92-GS-04-01

THE STATE,

VS.

MALISSA ANN CRAWLEY,

DEFENDANT.

GUILTY PLEA BEFORE THE HONORABLE TOM J.

ERVIN, ESQUIRE, PRESIDING CIRCUIT COURT

JUDGE, AT THE ANDERSON COUNTY COURTHOUSE,

ANDERSON, SOUTH CAROLINA, ON JANUARY 6,

1992.

APPEARANCES:

DRUANNE WHITE, ESQUIRE

ASSISTANT SOLICITOR

ROBERT GAMBLE, ESQUIRE

ATTORNEY FOR THE DEFENDANT

SUSAN AHEARN-HAWKINS, CVR

CIRCUIT COURT REPORTER

[page 2 of 7]

l THE COURT: MS. CRAWLEY, WOULD YOU

RAISE YOUR

2 RIGHT HAND, PLEASE.

3 (MALISSA ANN CRAWLEY, IS FIRST DULY

SWORN.)

> THE COURT: MALISSA ANN CRAWLEY

IS CHARGED IN THE

App. 74

5 INDICTMENT WITH UNLAWFUL NEGLECT OF A

CHILD.

6 MRS. WHITE, HAVE THERE BEEN ANY

NEGOTIATIONS IN

7 THIS CASE?

8 MRS. WHITE: YES SIR, YOUR HONOR.

9 THE COURT: GO AHEAD AND STATE THEM.

10 MRS. WHITE: WE HAVE A RECOMMENDED

SENTENCE OF

11 FIVE YEARS SUSPENDED ON F IVE YEARS

PROBATION WITH

12 COMPLIANCE WITH ANY FAMILY COURT

TREATMENT PLANS,

13 RANDOM DRUG TESTING, AND GO TO ADAC

OR SOME OTHER

14 FACILITY SUCH AS THAT TO GET HELP WITH

DRUGS.

15 THE COURT: MR. GAMBLE, YOU

REPRESENT MS.

16 CRAWLEY?

17 MR. GAMBLE: I DO, YOUR HONOR.

18 THE COURT: AND YOU’VE EXPLAINED THAT

19 RECOMMENDATION TO HER?

20 MR. GAMBLE: YES SIR. I’VE GONE OVER

THAT WITH

21 HER. :

22 THE COURT: HOW DOES SHE INDICATE SHE

WISHES TO

23 PLEAD?

24 MR. GAMBLE: GUILTY, YOUR HONOR.

25 THE COURT: AND YOU’VE EXPLAINED TO

HER THAT IF

[PAGE 3 OF 7]

1 SHE DOES PLEAD GUILTY SHE GIVES UP HER

RIGHTS,

2 INCLUDING HER RIGHT TO A JURY TRIAL?

3 MR. GAMBLE: YES SIR.

App. 75

3 THE COURT: DO YOU BELIEVE SHE

UNDERSTANDS ALL

HER RIGHTS AND THE PENALTIES SHE COULD

RECEIVE?

6 MR. GAMBLE: I DO, YOUR HONOR.

7 THE COURT: DO YOU AGREE WITH HER

- DECISION TO

8 PLEAD GUILTY?

9 MR. GAMBLE: YES SIR, I DO.

10 EXAMINATION OF MALISSA ANN CRAWLEY

11 BY THE COURT:

12 Q MS. CRAWLEY, HOW OLD ARE YOU?

13 A THIRTY (30).

14 Q HOW FAR DID YOU GO IN SCHOOL?

15 A 12TH GRADE.

16 Q ARE YOU UNDER THE INFLUENCE OF ANY

ALCOHOL OR DRUGS

17 TODAY?

18 A NOSIR.

19 Q ARE YOU SATISFIED WITH THE WAY IN

WHICH YOUR ATTORNEY,

20 MR. GAMBLE, HAS REPRESENTED YOU IN

THIS MATTER?

21 A YES SIR.

22 Q DO YOU WANT A JURY TRIAL?

23 A NOSIR.

24 Q YOU’RE PLEADING GUILTY BECAUSE YOU

ARE GUILTY?

25 A YES SIR.

[PAGE 4 OF 7]

1 Q NOONE’S THREATENED YOU TO PLEAD

GUILTY?

2 A NOSIR.

3 Q DO YOU UNDERSTAND IF YOU VIOLATE

PROBATION YOU COULD

* SERVE UP TO FIVE YEARS?

A YES SIR.

io 4)

App. 76

MRS. WHITE: JUDGE, THIS HAS NOT

BEEN TO THE

GRAND JURY.

Q ARE YOU WISHING TO WAIVE YOUR RIGHT

TO HAVE THIS SENT

TO THE GRAND JURY?

A YES SIR.

Q AT THAT TIME THE GRAND JURY COULD NO

BILL THE CASE

WHICH COULD END THE MATTER, BUT YOU

GIVE UP THAT RIGHT

IF YOU WAIVE OR GIVE UP PRESENTMENT.

DID YOU

UNDERSTAND THAT?

A YES SIR.

Q DO YOU UNDESTAND THAT THE STATE

WOULD HAVE THE BURDEN

OF PROVING YOUR GUILT AT TRIAL BEYOND

A REASONABLE

DOUBT, THAT YOU COULD TESTIFY IN YOUR

OWN BEHALF, THAT

YOU COULD SUBPOENA WITNESSES IN YOUR

OWN DEFENSE,

CONFRONT AND CROSS EXAMINE THE

WITNESSES AGAINST YOU - -

YOU DON’T EVEN HAVE TO TESTIFY? DO

YOU UNDERSTAND ALL

THAT? :

A YES SIR.

Q YOU STILL WANT TO PLEAD GUILTY?

A YES SIR.

[PAGE 5 OF 7]

THE COURT: I FIND YOUR DECISION TO

PLEAD GUILTY

AND WAIVE PRESENTMENT IS FREELY,

VOLUNTARILY AND

INTELLIGENTLY MADE, ALL UPON THE

App. 77

ADVICE AND COUNSEL OF

A COMPETENT ATTORNEY WITH WHOM

YOU’RE SATISFIED AND

5 YOUR PLEA IS ACCEPTED. THE

RECOMMENDATIONS ARE ALSO

6 ACCEPTED.

7 MR. GAMBLE, IS FAMILY COURT

CURRENTLY SUPERVISING

THIS MATTER?

MR. GAMBLE: FAMILY COURT IS

INVOLVED IN THE

10 MATTER, YOUR HONOR, SO I’M NOT SURE

WHAT'S --

11 MS. CRAWLEY: THE 9TH.

\© oo

12 MR. GAMBLE: HUH?

13 MS. CRAWLEY: IT’LL BE ON THE 9TH.

14 MR. GAMBLE: THE HEARING’S COMING

UP THE 9TH AND

15 IT’LL -- 1 CAN PREDICT THAT IT’LL GO THE

USUAL WAY

16 THESE GO. SHE’LL BE REQUIRED TO HAVE

FAMILY COUNSELING

17 AND DRUG COUNSELING AND --

18 MRS. WHITE: THIS IS ONE, YOUR HONOR,

WHERE SHE

19 AND THE BABY TESTED POSITIVE FOR

COCAINE RIGHT AFTER

20 THE BABY’S BIRTH AND I THINK THEY

NORMALLY JUST ORDER

21 THEM INTO THE SAME TYPE OF THINGS

THAT WE’RE TALKING

22 ABOUT, COUNSELING AND DRUG

TREATMENT AND SO FORTH.

23 MR. GAMBLE: MALISSA’S NOW LIVING

WITH HER MOTHER

24 OVER ON BEECHWOOD AVENUE HERE IN

ANDERSON AND IS

25 WORKING WITH THE ADAC ALREADY. SHE

HAS WORKED AT RYOBI |

App. 78

[PAGE 6 OF 7]

1 | AND NOWHAS THREE CHILDREN SO IT’S

GOING TO BE

2 DIFFICULT FOR HER TO WORK TOO.

3 - THE COURT: SHE HAS NO PRIOR

CONVICTION RECORD?

4 MRS. WHITE: JUDGE, SHE HAS A PRIOR

POSSESSION OF

5 MARIJUANA AND DRIVING UNDER THE

INFLUENCE FROM 1982.

6 THE COURT: MS. CRAWLEY, IF I FOLLOW

THESE

7 RECOMMENDATIONS DO YOU UNDERSTAND

THAT YOU WILL HAVE TO

8 | SUCCESSFULLY COMPLETE ANY

COUNSELING AS RECOMMENDED FOR

9 SUBSTANCE ABUSE? IF YOU VIOLATE THAT

YOU COULD SERVE

10 TIME. DID YOU UNDERSTAND THAT?

11 MS. CRAWLEY: YES SIR.

12 THE COURT: I’M GOING TO SENTENCE

YOU AS FOLLOWS:

13. FIVE YEARS: FIVE YEARS SUSPENDED ON

FIVE YEARS

14 PROBATION -- SPECIAL CONDITIONS OF FIVE

YEARS PROBATION

15 | YOU WILL BE REQUIRED TO SUCCESSFULLY

COMPLETE ANY 7

16 | COUNSELINGS RECOMMENDED FOR

SUBSTANCE ABUSE, COMPLY

17 WITH ANY FAMILY COURT ORDERS AND

ALSO BE RANDOMLY DRUG

18 __ TESTED IN THE DISCRETION OF YOUR

PROBATION AGENT.

19 | COSTS AND ASSESSMENTS AND

SUPERVISION FEES ARE WAIVED

20. AND EXEMPT.

App. 79

21 DOES MY SENTENCE COMPLY WITH THE

NEGOTIATIONS,

22 MRS. WHITE?

23 MRS. WHITE: YES SIR.

24 MR. GAMBLE: YES SIR.

25 THE COURT: THANK YOU.

[PAGE 7 OF 7]

CERTIFICATE OF REPORTER

I, SUSAN AHEARN-HAWKINS, CVR, OFFICIAL

COURT REPORTER FOR THE TENTH JUDICIAL

CIRCUIT OF THE STATE OF SOUTH CAROLINA, DO

HEREBY CERTIFY THAT THE FOREGOING IS A

TRUE, ACCURATE AND COMPLETE TRANSCRIPT OF

RECORD OF THE PROCEEDINGS HAD IN THE

CAPTIONED CASE, TO THE BEST OF MY SKILL AND

ABILITY, RELATIVE TO APPEAL, IN THE CRIMINAL

COURT FOR ANDERSON COUNTY, SOUTH

CAROLINA, ON JANUARY 6, 1992.

I DO FURTHER CERTIFY THAT I AM NEITHER OF

KIN, COUNSEL NOR INTEREST TO ANY PARTY

HERETO.

“ 2 ”

App. 80

THE STATE OF SOUTH CAROLINA,

COUNTY OF ANDERSON

COURT OF GENERAL SESSIONS

JAN61992 TERM

DDW

THE STATE

VS.

Indictment for

UNLAWFUL NEGLECT OF A CHILD

20-7-50

20-7-490

NEGOTIATED PLEA

[PANEL 2 OF 3]

WITNESSES

JIMMY McKINNEY, APD

ARREST WARRANT NO. D201991

App. 81

ACTION OF GRAND JURY

Foreman of Grand Jury

VERDICT

Foreman of Petit Jury Date:

[PANEL 3 of 3]

Now comes the defendant Malissa Ann Crawley who in open

Court waives presentment and pleads guilty to the charge in

the [illegible] in the within indictment and consents to

sentence.

This 6 day of January 1992

Signed “‘s/ Malissa Crawley”

[Page 2 of 2]

FORM 32 (12/87)

STATE OF SOUTH CAROLINA ) INDICTMENT FOR

) UNLAWFUL

COUNTY OF ANDERSON ) NEGLECT OF

A CHILD

2-7-50/20-7-490

At a Court of General Sessions, convened on JAN 6

1992, the Grand Jurors of ANDERSON County present upon

their oath:

App. 82

THAT MALISSA ANN CRAWLEY, A PERSON HAVING

LEGAL CUSTODY OF ANTWON LORENZO

CRAWLEY, A CHILD BORN NOVEMBER 9, 1991, DID

IN ANDERSON COUNTY ON OR BETWEEN AUGUST

8, 1991 AND NOVERMBER 9, 1991, WITHOUT

LAWFUL EXCUSE REFUSE OR NEGLECT TO

PROVIDE THE PROPER CARE AND ATTENTION FOR

ANTWON LORENZO CRAWLEY SO THAT THE LIFE,

HEALTH, OR COMFORT OF ANTWON LORENZO

CRAWLEY WAS ENDANGERED OR LIKELY TO BE

ENDANGERED, TO WIT: 1) MALISSA ANN CRAWLEY

INFLICTED UPON ANTWON LORENZO CRAWLEY

PHYSICAL OR MENTAL INJURY AND/OR 2) MALISSA

ANN CRAWLEY FAILED TO PROVIDE ANTWON

LORENZO CRAWLEY WITH ADEQUATE SHELTER.

Against the peace and dignity of the State, and contrary to

the statute in such case made and provided.

“s/George M. Ducworth”

____TENTH CIRCUIT

SOLICITOR

App. 83

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.