Thompson v. Ozmint , 390 F. App'x 243 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7516
CLIFFORD THOMPSON,
Petitioner - Appellant,
v.
JON OZMINT, South Carolina Department of Corrections;
WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Henry M. Herlong, Jr., Senior
District Judge. (3:08-cv-02794-HMH)
Submitted: June 18, 2010 Decided: August 5, 2010
Before KING and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Clifford Thompson, Appellant Pro Se. Donald John Zelenka, Deputy
Assistant Attorney General, Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clifford Thompson, a South Carolina prisoner, appeals
from the district court’s order adopting the report and
recommendation of the magistrate judge and denying his 28 U.S.C.
§ 2254 (2006) petition. We previously granted a certificate of
appealability on the following issues: (1) whether the trial
court’s lack of jurisdiction over two counts of conviction
resolved by Thompson’s plea agreement rendered the plea
agreement involuntary, and (2) whether trial counsel was
ineffective for negotiating and recommending said plea
agreement. After reviewing the subsequent briefing, we vacate
the portion of the district court’s order resolving these issues
and remand for further proceedings.
The State contends that these issues are procedurally
defaulted due to Thompson’s failure to raise the claims in state
court. Procedural default occurs when a habeas petitioner fails
to exhaust his state remedies and the state court would now find
the claims procedurally barred. Mickens v. Taylor, 240 F.3d
348, 356 (4th Cir. 2001). When a procedural default occurs,
federal review is barred unless the petitioner can show cause
for his default and resulting prejudice, or actual innocence.
Harris v. Reed, 489 U.S. 255, 262 (1989). The petitioner may
also avoid the procedural bar by “prov[ing] that failure to
consider the claims will result in a fundamental miscarriage of
2
justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir.),
cert. denied, 129 S. Ct. 162 (2008). In general, in South
Carolina, “absent sufficient reason for not raising a claim in a
first [post-conviction relief (“PCR”)] application or very rare
procedural circumstances, [S.C. Code Ann.] § 17-27-90 [Rev.
2003] bars the claim in a successive application.” Matthews v.
Evatt, 105 F.3d 907, 916 (4th Cir. 1997).
Here, Thompson’s counsel did not raise these claims in
his initial PCR application. However, liberally construing his
pleadings, Thompson did raise the claims in his pro se petition
for relief to the Supreme Court of South Carolina, as well as in
his § 2254 petition and his objections to the magistrate judge’s
report in district court. Nonetheless, neither the state court,
magistrate judge, nor district court explicitly ruled on either
Thompson’s potential default or the merits of the claims.
Further, because the State did not raise the default issue
earlier, Thompson has not had an opportunity to show cause and
prejudice or a miscarriage of justice.
Accordingly, while we express no opinion on the
procedural or substantive validity of Thompson’s claims, we
grant leave to proceed in forma pauperis and vacate the portion
of the district court’s order dismissing these claims and remand
for a ruling on whether the specified claims are procedurally
defaulted and, if not, the merits of Thompson’s claims. We deny
3
Thompson’s motions for appointment of counsel. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
4