State v. McKennedy

348 S.C. 270

559 S.E.2d 850

The STATE, Respondent, v. William C. McKENNEDY, Petitioner.

No. 25415.

Supreme Court of South Carolina.

Heard November 28, 2001.

Decided February 11, 2002.

Assistant Appellate Defender Aileen P. Clare, of South Carolina Office of Appellate Defense, of Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Deputy Attorney General Charles H. Richardson, and Assistant Attorney General Tracey C. Green, all of Columbia; and Solicitor Robert M. Arian of Greenville, all, for respondent.

TOAL, Chief Justice.

William C. McKennedy¹ ("Appellant") appeals his conviction for distribution of crack cocaine. We affirm Appellant's conviction.

Factual/Procedural Background

Appellant was indicted by the Greenville County Grand Jury for distributing crack cocaine to an undercover officer. The police captured the March 17, 1998, sale on videotape. The case was set for trial on February 3, 1999. Appellant had other charges pending, and he and his attorney initially believed he was going to be tried for a March 3, 1998, sale of drugs, also captured on video surveillance, at the February 3, 1999, trial. Appellant's attorney claimed he was not notified Appellant would be tried for the March 17, 1998, incident until January 6, 1999. On that day, the State hand-delivered discovery to Appellant's counsel and made clear Appellant would be tried for the March 17, 1998, offense on the February 3, 1999, trial date.

At trial, Appellant's counsel moved for a continuance on grounds Appellant had not been able to determine whether there were any witnesses that could testify on his behalf or as an alibi due to his incarceration. Appellant's counsel did not indicate why he could not have investigated this on Appellant's behalf. Appellant's counsel claimed they were prepared on the March 3rd charge, but had not had time to prepare adequately for trial on the March 17th charge. In response, the State noted that the March 17th charge had been placed on the docket four to five times previously. The trial court then denied Appellant's motion for a continuance.

Appellant's counsel next moved to suppress any identification of Appellant as the individual on the videotape. After holding an in camera hearing, the trial judge denied this motion as well. At this point, Appellant's counsel announced Appellant had decided to plead guilty to the charge. After thoroughly questioning Appellant, the trial judge accepted Appellant's plea and sentenced him to eighteen years imprisonment.

Assistant Appellate Defender, Aileen Clare, was assigned to represent Appellant on appeal. Finding the record failed to demonstrate any preserved or legally substantial Issues for appeal, Ms. Clare filed a petition to be relieved as counsel and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the Anders brief, Ms. Clare argued the trial court abused its discretion in denying Appellant's pre-trial motion for a continuance. Appellant filed a pro se response to Ms. Clare's Anders brief, identifying several other issues he believed were significant.

The Court of Appeals dismissed Appellant's appeal pursuant to Anders and granted Ms. Clare's petition to be dismissed as counsel. Despite being relieved of her obligation to represent Appellant, Ms. Clare filed a Petition for Rehearing based on a factual discrepancy in the Court of Appeals' order: the order stated Appellant was sentenced to seven and one-half years imprisonment, as opposed to eighteen years. The Court of Appeals denied the Petition for Rehearing and substituted a factually correct opinion dismissing Appellant's appeal and granting Ms. Clare's petition for removal.

In an effort to enable Appellant to pursue federal habeas relief, Ms. Clare filed a petition for writ of certiorari in this Court on Appellant's behalf. The issues before this Court are:

I. Is Appellant required to seek discretionary review by this Court in order to exhaust all state remedies, thereby preserving his ability to seek federal habeas relief?

II. Did the trial court err in denying Appellant's motion for a continuance?

LAW/ANALYSIS

I. Exhaustion of State Remedies

Both Appellant and the State argue that exhaustion of state remedies for the purpose of federal habeas review requires Appellant to petition for writ of certiorari to this Court. We disagree. The State argues further that the Court of Appeals' dismissal of Appellant's appeal pursuant to Ms. Clare's Anders brief and his pro se response does not constitute presentation of the issues as required for federal habeas relief. We disagree.

A. Exhaustion of State Remedies

Both parties argue Appellant must at least seek discretionary review in this Court in order to exhaust Appellant's state remedies for purposes of federal habeas. It is undisputed that federal law requires state prisoners to exhaust all available state remedies before seeking federal relief. 28 U.S.C.A. § 2254(b) (1992 & Supp.2001).

The Supreme Court addressed the exhaustion of state remedies in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). In O'Sullivan, the Supreme Court restated the general federal rule requiring exhaustion of state remedies, explaining the purpose of exhaustion was to allow state courts an opportunity to act on defendant's claims before he presents those claims in federal court. O'Sullivan. In O'Sullivan, the Supreme Court recognized the recurring question raised by the federal exhaustion rule: "What remedies must a habeas petitioner invoke to satisfy the federal exhaustion requirement?" Id. at 842, 119 S.Ct. at 1731, 144 L.Ed.2d at 8. In answering this question, the Supreme Court held state prisoners were required "to file petitions for discretionary review when that review is part of the ordinary appellate procedure in the State." Id. at 847, 119 S.Ct. at 1733, 144 L.Ed.2d at 11.

The Supreme Court's holding, however, raises another question: "What qualifies as the ordinary appellate procedure' in a given state?" In our State, this Court issued an order defining exhaustion of state remedies:

We therefore declare that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.

In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief 321 S.C. 563, 563, 471 S.E.2d 454, 454 (1990). The United States Supreme Court made note of this Court's order in its O'Sullivan opinion, commenting that the increased burden on state courts likely to result from its holding may be unwelcome in some state courts. O'Sullivan. The Court appeared to recognize the State's ability to define the procedure for exhausting remedies within the State, "In this regard, we note nothing in our decision today requires the exhaustion of any state remedy when a State has provided that that remedy is unavailable." Id. at 847, 119 S.Ct. at 1735,144 L.Ed.2d at 11. The Court clarified that the exhaustion doctrine "turns on an inquiry into what procedures are `available' under state law" and concluded the doctrine did not preclude federal courts from adhering to a state law or rule making a given procedure unavailable. Id. at 847-48, 119 S.Ct. at 1734,144 L.Ed.2d at 11 (emphasis added).

In his concurring opinion, Justice Souter elaborated on this point, stating more directly that a State can determine what constitutes exhaustion of its own remedies for purposes of federal habeas relief. In Justice Souter's words, "a state prisoner is likewise free to skip a procedure ... so long as the State has identified the procedure as outside the standard review process and has plainly said that it need not be sought for the purpose of exhaustion." Id. at 850, 119 S.Ct. at 1735, 144 L.Ed.2d at 12 (Souter, J., concurring). The majority opinion in O'Sullivan made clear that they did not intend to require exhaustion of any State remedy when the State has declared that remedy unavailable. Id. We believe our 1990 order amounts to such a declaration, and, therefore, that O'Sullivan does not prevent a prisoner from filing for habeas relief immediately after an adverse decision from this state's Court of Appeals, without first seeking discretionary review by this Court.

The O'Sullivan opinion arose out of the Illinois state court system. Under the Illinois appellate system, review by the Supreme Court in most criminal cases is within the Court's "sound discretion." O'Sullivan (quoting 111. Sup.Ct. Rule 315). The Illinois Rules indicate, however, that the discretion of Illinois' Supreme Court is very broad, and contain no definition of what constitutes an exhaustion of Illinois' remedies. Id. Under these facts, the United States Supreme Court held "the creation of a discretionary review system does not, without more, make review in the Illinois Supreme Court unavailable" for purposes of the doctrine of exhaustion. O'Sullivan, 526 U.S. at 848, 119 S.Ct. at 1734, 144 L.Ed.2d at 11² (emphasis added). The Ninth Circuit addressed the issue that this Court is now facing in Swoopes v. Sublett, 196 F.3d 1008 (9th Cir.1999). In Swoopes, an Arizona state prisoner appealed his conviction to the Arizona Court of Appeals and his convictions were affirmed. Swoopes. In Arizona, the automatic right to appeal is limited to Arizona's Court of Appeals, except in capital cases or when a life sentence is imposed. Id. (citing Ariz.Rev.Stat. §§ 12-120.21(A)(1); 12-120.24; 13-4031). In all other cases, the Arizona Supreme Court has discretion to grant review. Id. (citing Ariz.Rev.Stat. 12-120.24). Based on the Arizona statute and several Arizona opinions supporting the statute, the Ninth Circuit...