Robertson v. State

THE STATE OF SOUTH CAROLINA
In The Supreme Court

James D. Robertson, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2012-205909

ON WRIT OF CERTIORARI

Appeal From York County
Lee S. Alford, Circuit Court Judge

Opinion No. 27691

Heard October 8, 2015 – Filed December 14, 2016

REVERSED AND REMANDED

Keir M. Weyble, of Cornell Law School, of Ithaca, New
York, and Emily C. Paavola, of Justice 360, of Columbia,
both for Petitioner.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Donald J. Zelenka and Senior
Assistant Attorney General William Edgar Salter, III, all
of Columbia, for Respondent.
 JUSTICE BEATTY: In this capital Post-Conviction Relief ("PCR") case,
James D. Robertson ("Petitioner") filed a second PCR application alleging, among
other things, that his prior PCR counsel were not qualified under section 17-27-
160(B) of the South Carolina Code1 and failed to competently represent him.
Without a hearing, the PCR judge dismissed the application on the grounds that it
was successive and barred by the one-year statute of limitations and laches. This
Court granted certiorari to review the circuit court's dismissal of Petitioner's
application. Petitioner contends his second PCR application should not have been
summarily dismissed as successive because his case presents unique circumstances
warranting review of prior PCR counsel's assistance under Martinez v. Ryan, 132
S. Ct. 1309 (2012).2 We reverse and remand.

I. Factual / Procedural History

On March 26, 1999, Petitioner was convicted and sentenced to death for the
1997 murder of his parents, armed robbery, and financial transaction card fraud.
Over the course of the next four years, Petitioner filed a direct appeal through
appointed counsel, moved to relieve appointed appellate counsel, and filed a pro se
appeal to this Court on July 25, 2003. Ultimately, following a judicial
determination of competency, Petitioner waived his right to direct appeal. On June
3, 2005, this Court dismissed Petitioner's direct appeal after conducting the
proportionality review mandated by section 16-3-253 of the South Carolina Code.

On July 7, 2005, this Court granted Petitioner's request for a stay of
execution to pursue PCR. This Court also appointed then Circuit Court Judge John

1
S.C. Code Ann. § 17-27-160(B) (2014) (identifying requisite qualifications for
counsel appointed to represent an indigent, capital PCR applicant).
2
See Martinez v. Ryan, 132 S. Ct. 1309 (2012) (holding that a state procedural
default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance of counsel if, in the initial-review collateral proceeding, there
was no counsel or counsel in that proceeding was ineffective).
3
S.C. Code Ann. § 16-3-25 (2003) (identifying procedure Supreme Court must
use in reviewing cases involving a sentence of death).
Few to preside over the PCR proceedings. Judge Few appointed Michael Langford
Brown, Jr., and Joseph D. Matlock, both of Rock Hill, to represent Petitioner.4

On March 1, 2006, Petitioner filed a PCR application (the "2006
Application") generally alleging ineffectiveness of trial counsel. At the beginning
of the PCR hearing, Petitioner's counsel verbally amended the application to
include twelve grounds of ineffectiveness of trial counsel. Following a three-day
hearing, Judge Few denied relief and issued an Order of Dismissal on March 24,
2008. In a letter dated October 6, 2010, this Court denied Petitioner's request for a
writ of certiorari.

On January 7, 2011, Petitioner, with the assistance of federally appointed
counsel,5 simultaneously filed a second PCR application in state court and a
Petition for a Writ of Habeas Corpus in the United States District Court for the
District of South Carolina. By order dated April 8, 2011, a federal magistrate
stayed the federal proceedings pending the exhaustion of Petitioner's state court
remedies.

In his second PCR application (the "2011 Application"), Petitioner sought to
have his convictions and sentences reversed based on trial court error as well as
ineffective assistance of trial counsel, appellate counsel, and prior PCR counsel.
With respect to PCR counsel, Petitioner alleged that his prior PCR counsel were
not qualified under section 17-27-160(B)6 and failed to competently represent

4
The State maintains that Judge Few appointed Brown by order dated September
9, 2005 and confirmed the appointment during a hearing held on September 23,
2005. Petitioner disputes that such a hearing took place. The parties agree,
however, that any tape of the hearing no longer exists.
5
The federally appointed attorneys are also representing Petitioner before this
Court.
6
Section 17-27-160(B) provides in relevant part:

If the applicant is indigent and desires representation by counsel, two
counsel shall be immediately appointed to represent the petitioner in
this action. At least one of the attorneys appointed to represent the
applicant must have previously represented a death-sentenced inmate
in state or federal post-conviction relief proceedings or (1) must meet
the minimum qualifications set forth in Section 16-3-26(B) and
him.7 The State filed a Return and a Motion to Dismiss alleging, among other
things, that the 2011 Application was barred by the one-year statute of limitations,8
impermissibly successive to the 2006 Application, barred by laches, and lacked
merit. In Reply, Petitioner urged the PCR judge to deny the motion to dismiss and
(1) allow the case to proceed to an evidentiary hearing and final adjudication, or
(2) hold the case in abeyance until Martinez and Maples9 were resolved by the
United States Supreme Court.

By order dated September 20, 2011, Circuit Court Judge Lee S. Alford
summarily dismissed the 2011 Application. In so ruling, the PCR judge found
Petitioner's allegation of ineffectiveness of original PCR counsel was not a
cognizable state claim that justified filing an untimely, successive PCR application.

Specifically, the judge held: (1) the 2011 Application was barred by the
one-year statute of limitations as it was filed more than five years after Petitioner's
direct appeal was dismissed on June 22, 2005 and the appointment of original PCR
counsel on September 23, 2005; (2) the 2011 Application was impermissibly
successive because an allegation that original PCR counsel were ineffective is not
a sufficient reason to allow a successive PCR application; (3) Petitioner waived his
right to challenge whether his original PCR counsel were statutorily qualified by
failing to object to lead counsel's qualifications during the 2006 PCR hearing; (4)
Petitioner failed to prove that original PCR counsel were not statutorily qualified to
represent him given there was no evidence to the contrary and Petitioner

Section 16-3-26(F) and (2) have successfully completed, within the
previous two years, not less than twelve hours of South Carolina Bar
approved continuing legal education or professional training primarily
involving advocacy in the field of capital appellate and/or post-
conviction defense.

S.C. Code Ann. § 17-27-160(B) (2014) (emphasis added).
7
In support of this contention, Petitioner cited Martinez which, at that time, was
pending before the United States Supreme Court.
8
S.C. Code Ann. § 17-27-45(A) (2014).
9
Maples v. Thomas, 132 S. Ct. 912 (2012) (concluding, in capital case, that
applicant who was abandoned by his attorney in state PCR proceedings established
the requisite cause to excuse procedural default in federal habeas action).
erroneously construed the statutory requirements for appointment of PCR counsel
in a capital case;10 (5) Petitioner failed to prove that his original PCR counsel had
not performed competently under Strickland v. Washington, 466 U.S. 668 (1984)
because the mere allegation that new PCR counsel would have raised different
grounds in the 2006 PCR action did not establish deficient performance or
prejudice; (6) no due process violation occurred during the 2006 PCR action
because Petitioner was provided counsel and meaningful access to the courts; (7)
no equal protection violation occurred during the 2006 PCR action because
Petitioner could not show disparate treatment based upon his status as an indigent
defendant; (8) the decision of the United States Supreme Court to grant certiorari
in Martinez and Maples did not mandate the relief sought by Petitioner given a
favorable decision in those cases would only address whether a procedural default
may be excused in federal court not state court; (9) laches barred relief; (10)
Petitioner's allegations of trial court error are not cognizable PCR claims; and (11)
Petitioner's allegations of ineffective assistance of original PCR counsel are not
cognizable PCR claims.

Petitioner filed a motion to reconsider pursuant to Rule 59(e) of the South
Carolina Rules of Civil Procedure. Petitioner objected to, among other things, the
PCR judge's dismissal without a hearing, particularly where there was a

10
In reaching this conclusion, the PCR judge referenced a memorandum issued by
then Chief Justice Toal on August 13, 2003 that was sent to all circuit court judges.
http://www.sccourts.org/whatsnew/displaywhatsnew.cfm?indexID=165. In the
memorandum, Chief Justice Toal opined that counsel is qualified to represent a
capital PCR applicant under section 17-27-160(B) if counsel is qualified to
represent a capital defendant at trial under section 16-3-26(B). To be qualified to
represent a defendant in a capital trial, at least one attorney must have at least five
years' experience as a licensed attorney and at least three years' experience in the
actual trial of felony cases. S.C. Code Ann. § 16-3-26(B) (2003); Rule 421(b),
SCACR. Chief Justice Toal construed section 17-27-160(B) to permit
qualification of counsel who has twelve South Carolina Bar approved CLE hours
or has professional training in capital appellate or PCR defense rather than
requiring twelve hours of education or training in capital appellate or PCR defense.
Chief Justice Toal believed that this construction avoids the absurd result that an
attorney qualified to represent a defendant in the trial of a capital case would not
necessarily be qualified to represent a capital PCR applicant. Accordingly, Chief
Justice Toal concluded that "anyone who is qualified to represent a capital
defendant at trial, and has completed their CLE requirements should be deemed
qualified to represent a petitioner in a capital PCR proceeding under § 17-27-160."
disagreement between the parties regarding whether original PCR counsel met the
statutory qualifications to be appointed in a capital PCR case. In support of this
assertion, Petitioner supplemented the motion with: (1) affidavits confirming that
neither Brown nor Matlock were qualified; and (2) a published opinion wherein
Brown was publicly reprimanded for professional misconduct, which stemmed
from substance abuse that occurred in July 2007.

The judge denied the motion, finding Brown had death penalty experience
and there was no evidence that Brown's substance abuse problems affected his
effectiveness in representing Petitioner in the 2006 PCR action. Additionally, the
judge found that any failure to comply with section 17-27-160 did not violate
Petitioner's constitutional rights because the statute does not create an independent,
constitutional right. Finally, even assuming the State did not comply with section
17-27-160, the judge concluded that Petitioner failed to demonstrate prejudice.
This Court granted Petitioner's request for a writ of certiorari to review the PCR
judge's order.

II. Discussion

A. Arguments

Petitioner seeks for this Court to vacate the PCR judge's order summarily
dismissing his 2011 Application and remand for a hearing. As the basis for this
relief, Petitioner asserts that this Court, in response to Martinez, should amend
existing state court PCR proceedings to permit Petitioner to file a second PCR
application. While acknowledging the existing prohibition against successive PCR
applications under section 17-27-90 and cases interpreting the statute, Petitioner
maintains that this law should be re-evaluated based on Martinez. Additionally,
because Petitioner claims that prior PCR counsel were not qualified under section
17-27-160(B) and were ineffective, he contends that these reasons were sufficient
to allow him to file a timely, successive PCR application and require a hearing on
the merits. Due to the alleged deficiencies in prior PCR counsel's representation,
Petitioner avers that he was denied a full and fair opportunity to present his claims.

B. Procedural Default in PCR Proceedings

The South Carolina Legislature enacted the Uniform Post-Conviction
Procedure Act to govern all aspects of PCR, including strict time deadlines and the
appointment of counsel in capital PCR proceedings. S.C. Code Ann. §§ 17-27-10
to -160 (2014). A PCR application must be filed within one year after the entry of
a judgment of conviction, or if there is an appeal, within one year after the sending
of the remittitur to the lower court from an appeal or the filing of the final decision
upon an appeal, whichever is later. Id. § 17-27-45(A). However, "[i]f the
applicant contends that there is evidence of material facts not previously presented
and heard that requires vacation of the conviction or sentence, the application must
be filed under this chapter within one year after the date of actual discovery of the
facts by the applicant or after the date when the facts could have been ascertained
by the exercise of reasonable diligence." Id. § 17-27-45(C).

"All applicants are entitled to a full and fair opportunity to present claims in
one PCR application." Odom v. State, 337 S.C. 256, 261, 523 S.E.2d 753, 755
(1999). "Successive PCR applications and appeals are generally disfavored
because they allow an applicant to receive more than 'one bite at the apple as it
were.'" Id.

Section 17-27-90 of the South Carolina Code generally prohibits the filing of
successive PCR applications, stating:

All grounds for relief available to an applicant under this
chapter must be raised in his original, supplemental or amended
application. Any ground finally adjudicated or not so raised, or
knowingly, voluntarily and intelligently waived in the proceeding that
resulted in the conviction or sentence or in any other proceeding the
applicant has taken to secure relief, may not be the basis for a
subsequent application, unless the court finds a ground for relief
asserted which for sufficient reason was not asserted or was
inadequately raised in the original, supplemental or amended
application.

S.C. Code Ann. § 17-27-90 (2014) (emphasis added). In Aice v. State, this Court
interpreted section 17-27-90 to forbid "a successive PCR application unless an
applicant can point to a 'sufficient reason' why the new grounds for relief he asserts
were not raised, or were not raised properly." Aice v. State, 305 S.C. 448, 450, 409
S.E.2d 392, 394 (1991). The Court in Aice acknowledged that there may be
"unique" circumstances,11 where a PCR counsel's assistance could be challenged in

11
See, e.g., Washington v. State, 324 S.C. 232, 478 S.E.2d 833 (1996) (permitting
successive PCR application where multiple procedural irregularities, including the
denial of a direct appeal, prohibited applicant the benefit of due process); Carter v.
State, 293 S.C. 528, 362 S.E.2d 20 (1987) (authorizing a successive PCR
a successive application. Id. at 451, 409 S.E.2d at 394. However, the Court
expressly held "the contention that prior PCR counsel was ineffective is not per se
a 'sufficient reason' allowing for a successive PCR application under § 17-27-90."
Id.

Despite the express holding in Aice, Petitioner argues that Martinez excuses
the procedural bar of section 17-27-90. In Martinez, the "precise question"
addressed by the United States Supreme Court ("USSC") was "whether ineffective
assistance in an initial-review collateral proceeding on a claim of ineffective
assistance at trial may provide cause for a procedural default in a federal habeas
proceeding." Martinez, 132 S. Ct. at 1315. The USSC answered this question by
holding that:

[w]here, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the initial-
review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.

Id. at 1320. In reaching this conclusion, the USSC recognized that federal habeas
courts reviewing the constitutionality of a state prisoner's conviction and sentence
are governed by rules designed to ensure that state-court judgments are accorded
finality and respect necessary to preserve the integrity of legal proceedings within
the system of federalism, including the doctrine of procedural default. Id. at 1316.

The USSC explained:

Allowing a federal habeas court to hear a claim of ineffective
assistance of trial counsel when an attorney's errors (or the absence of
an attorney) caused a procedural default in an initial-review collateral
proceeding acknowledges, as an equitable matter, that the initial-
review collateral proceeding, if undertaken without counsel or with
ineffective counsel, may not have been sufficient to ensure that proper
consideration was given to a substantial claim. From this it follows

application where the applicant did not have PCR counsel that differed from his
trial counsel); Case v. State, 277 S.C. 474, 289 S.E.2d 413 (1982) (allowing a
successive PCR application where applicant's first PCR application was dismissed
without assistance of legal counsel and without a hearing).
 that, when a State requires a prisoner to raise an ineffective-
assistance-of-trial-counsel claim in a collateral proceeding, a prisoner
may establish cause for a default of an ineffective-assistance claim in
two circumstances. The first is where the state courts did not appoint
counsel in the initial-review collateral proceeding for a claim of
ineffective assistance at trial. The second is where appointed counsel
in the initial-review collateral proceeding, where the claim should
have been raised, was ineffective under the standards of Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
To overcome the default, a prisoner must also demonstrate that the
underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that
the claim has some merit. Cf. Miller-El v. Cockrell, 537 U.S. 322,
123 S. Ct. 1029, 154 L.Ed. 2d 931 (2003) (describing standards for
certificates of appealability to issue).

Id. at 1318-19.

One year after Martinez was decided, this Court explicitly stated that "the
holding in Martinez is limited to federal habeas corpus review and is not applicable
to state post-conviction relief actions." Kelly v. State, 404 S.C. 365, 365, 745
S.E.2d 377, 377 (2013).

Appellate courts have continued to adhere to this Court's holding in Kelly.
See, e.g., Salter v. State, 184 So. 3d 944 (Miss. Ct. App. 2015) (discussing Kelly
and holding that Martinez does not apply to Mississippi PCR proceedings), cert.
denied, 185 So. 3d 385 (Miss. 2016); Brown v. McDaniel, 331 P.3d 867, 871-72
(Nev. 2014) (citing Kelly and declining to alter Nevada PCR procedures based on
Martinez). Significantly, courts from other jurisdictions have also extended the
holding in Kelly to encompass capital PCR proceedings. See State v. Hessler, 850
N.W.2d 777, 786 (Neb. 2014) (citing Kelly and concluding in a capital PCR case
that "[n]othing in Martinez prevents state courts from enforcing procedural defaults
in accordance with state law").

We find that Petitioner has offered no legitimate legal or policy reason to
depart from our holding in Kelly. Notably, Petitioner has never moved to argue
against precedent. Moreover, because the PCR Act is a legislatively created
scheme, any post-Martinez change to PCR proceedings must be instituted by the
Legislature. See Brown, 331 P.3d at 875 ("Whether or how a rule similar to that
adopted in Martinez should be adopted in state post-conviction proceedings is a
matter of policy and lies in the hands of the Legislature."); Hessler, 850 N.W.2d at
787 (declining to extend Martinez to state court PCR proceedings and noting that it
was for the Legislature to determine the consequences of Martinez). Accordingly,
we hold that Martinez does not afford Petitioner a right to file a successive PCR
application by merely alleging ineffective assistance of prior PCR counsel.

However, Petitioner's 2011 Application also alleged, as a separate and
distinct ground not addressed by Aice,12 that prior PCR counsel were not qualified
under section 17-27-160(B). We conclude Petitioner's allegation that he was
denied a state-created right to qualified counsel constitutes a "sufficient reason" to
permit a successive PCR application under section 17-27-90.13 Furthermore, we
find that Petitioner's 2011 Application was filed within the one-year statute of
limitations provided by section 17-27-45 as prior PCR counsel's alleged lack of
qualification was not discovered until federal counsel was appointed in 2011.
Contrary to the State's position, we find Petitioner did not waive his challenge to
counsel's lack of qualification by failing to raise this issue during the 2006 PCR
proceeding. We believe it is unreasonable to think that an indigent PCR applicant,

12
The dissent cites Aice to support its position that Petitioner's application is
impermissibly successive. The dissent's reliance on Aice is misplaced as this case
was decided by this Court in 1991 before the Legislature identified the
qualifications for capital PCR counsel in 1996.
13
The dissent disagrees that Petitioner's allegation he was denied a state-created
right to qualified counsel constitutes a "sufficient reason" to permit a successive
PCR application under section 17-27-90. Instead, the dissent characterizes
Petitioner's challenge to his capital PCR counsel's qualifications as "merely" a
"routine ineffectiveness argument." We question how Petitioner's challenge could
be "routine" as his allegation is based on a distinct statute that is only applicable to
capital PCR applicants. Further, the dissent cites no authority for its position but,
rather, acknowledges cases where this Court permitted a successive application.
Finally, the dissent claims a petition brought pursuant to Butler v. State, 302 S.C.
466, 397 S.E.2d 87 (1990) is adequate to address Petitioner's challenge. While the
dissent may believe a Butler petition is the "ultimate safety net," it seems
nonsensical to require a capital PCR applicant to exhaust all state and federal relief
with the assistance of counsel who may ultimately be found unqualified. In the
interest of judicial economy and fundamental fairness, we believe an allegation
that capital PCR counsel is unqualified should be resolved at the earliest point in
the proceedings and not after an applicant has exhausted all permitted relief.
who relies on the State to appoint qualified counsel, would have the knowledge to
question counsel's qualifications at the onset of the proceeding.

Having determined that Petitioner's 2011 Application was procedurally
proper, we must next construe section 17-27-160(B) and identify the requisite
qualifications for capital PCR counsel.

C. Statutorily Mandated Qualifications for Capital PCR Counsel

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"). See Pub. L. No. 104-132 (1996). In the AEDPA, "Congress
provided streamlined federal habeas procedures to those states that maintain
mechanisms for the mandatory appointment and compensation of competent
counsel during state postconviction proceedings." Celestine Richards McConville,
The Right to Effective Assistance of Capital Postconviction Counsel:
Constitutional Implications of Statutory Grants of Capital Counsel, 2003 Wis. L.
Rev. 31, 35 (2003) (footnote omitted). "By this act, Congress chose to restrict
federal habeas corpus review in exchange for the states[] appointing competent
counsel for indigent capital defendants for purposes of state postconviction
review." Lee v. State, 238 S.W.3d 52, 56 (Ark. 2006) (citing Burke W. Kappler,
Small Favors: Chapter 154 of the Antiterrorism and Effective Death Penalty Act,
the States, and the Right to Counsel, 90 J. Crim. L & Criminology 467, 469
(2000)).

In response, the majority of death-penalty states addressed issues relating to
capital PCR counsel. McConville, supra, at 35. South Carolina, one of ten states,
"amended their rules to provide a mandatory right to counsel for capital defendants
at the state postconviction stage." Id. In 1996, the South Carolina Legislature
enacted the "South Carolina Effective Death Penalty Act of 1996." Act No. 448,
1996 S.C. Acts 2709, 2712-14. As a provision in this Act, the Legislature included
section 17-27-160 to provide, in part, for "the appointment and compensation of
counsel" in capital PCR proceedings. Id.

Taking into account the express purpose of section 17-27-160, we find the
Legislature intended for an indigent capital defendant to be appointed counsel who:
(1) has previous experience representing a capital defendant in state or federal PCR
proceedings, or (2) was qualified to try a capital case and successfully completed at
least twelve hours of South Carolina Bar approved (a) CLE specifically involving
capital appellate or capital PCR proceedings or (b) professional training
specifically involving capital appellate or capital PCR proceedings. See fn.6,
supra. Simply stated, at least one attorney appointed pursuant to section 17-27-
160(B) must have either (1) prior experience in capital PCR proceedings, or (2)
capital trial experience and capital PCR training or education.

Furthermore, given the inclusion of section 17-27-160 in the South Carolina
Effective Death Penalty Act of 1996 and specific designation as providing
procedures for capital PCR, we find this construction comports with the intent of
the Legislature for appointed counsel to be proficient in capital PCR proceedings
and not just capital trial proceedings. See Charleston Cnty. Sch. Dist. v. State
Budget & Control Bd., 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993) ("The cardinal rule of
statutory construction is to ascertain and effectuate the intent of the legislature.");
S.C. State Ports Auth. v. Jasper Cnty., 368 S.C. 388, 398, 629 S.E.2d 624, 629
(2006) (stating that "the statute must be read as a whole and sections which are a
part of the same general statutory law must be construed together and each one
given effect").

D. Application to the Instant Case

Based on our construction of section 17-27-160(B), we find the PCR judge
erred in ruling that compliance with section 17-27-160(B) only required capital
PCR counsel to have capital trial experience. Moreover, we agree with Petitioner
that the PCR judge erred in summarily dismissing the 2011 Application because
there was a genuine issue of fact as to whether prior PCR counsel met the
qualifications of section 17-27-160(B).

Summary dismissal of a PCR application without a hearing is appropriate
only when (1) it is apparent on the face of the application that there is no need for a
hearing to develop any facts, and (2) the applicant is not entitled to relief. S.C.
Code Ann. § 17-27-70(b), (c) (2014). "When considering the State's motion for
summary dismissal, where no evidentiary hearing has been held, the PCR judge
must assume facts presented by the applicant are true and view those facts in the
light most favorable to the applicant." McCoy v. State, 401 S.C. 363, 369, 737
S.E.2d 623, 626 (2013). "Similarly, when reviewing the propriety of a dismissal,
this Court must view the facts in the same fashion." Leamon v. State, 363 S.C.
432, 434, 611 S.E.2d 494, 495 (2005).

"Where an applicant alleges facts that would establish an exception to either
the statute of limitations or the prohibition against successive PCR applications and
those facts are not conclusively refuted by the record before the PCR court, a
question of fact is raised which can only be resolved by a hearing." McCoy, 401
S.C. at 369, 737 S.E.2d at 626.

Here, Petitioner offered affidavits confirming that neither Brown nor
Matlock were qualified as capital PCR counsel. Petitioner also notes that Judge
Few's summary order of September 9, 2005, appointing Brown as counsel,
contained no reference to section 17-27-160 or a finding that counsel was
qualified. In contrast, the State maintains that Judge Few conducted a hearing on
September 23, 2005 during which he confirmed the appointment of Brown. Both
parties agree that there is no tape or transcript of the September 23, 2005 hearing.

Because the parties offered conflicting evidence as to whether Petitioner's
prior PCR counsel met the requisite qualifications, the PCR judge erred in
dismissing the 2011 Application without a hearing. Consequently, we remand for
a determination of whether prior PCR counsel were statutorily qualified. See Lee
v. State, 238 S.W.3d 52 (Ark. 2006) (remanding for circuit court to conduct further
proceedings where capital PCR counsel, who admitted to being impaired by
alcohol during capital PCR proceeding, may not have met the specific
qualifications set forth in state rule providing for the appointment of counsel).

In the event that prior PCR counsel are deemed unqualified under section
17-27-160(B), the judge must decide the appropriate remedy. Because we have yet
to enunciate how this remedy is to be determined, we take this opportunity to do
so.

E. Remedy for Lack of Qualified Counsel

Although we have researched other states that have qualification statutes or
rules similar to section 17-27-160(B), we have been unable to find a case that sets
forth a test for non-compliance. However, based on our reading of Martinez, we
find the Strickland14 test is appropriate and should be applied to evaluate this type
of case. See Martinez, 132 S. Ct. at 1318 (recognizing that effectiveness of

14
In Strickland, the USSC enunciated a two-pronged test to establish ineffective
assistance of counsel by which a PCR applicant must show (1) counsel's
performance was deficient, and (2) the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the second
prong, the PCR applicant "must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694.
counsel, who represented defendant in an initial-review collateral proceeding,
should be evaluated under the standards of Strickland).15

Applying the Strickland test, we conclude that non-compliance with section
17-27-160(B) constitutes deficient performance per se. To rule otherwise, we
believe would render meaningless the Legislature's intent to have qualified counsel
appointed to capital PCR applicants. See Tucker v. Catoe, 221 F.3d 600, 604-05
(4th Cir. 2000) (evaluating the State's failure to comply with section 17-27-160 and
stating, "We accordingly conclude that a state must not only enact a 'mechanism'
and standards for post-conviction review counsel, but those mechanisms and
standards must in fact be complied with before the state may invoke the time
limitations of U.S.C. § 2263" (emphasis added)).16 Nevertheless, a PCR applicant
would still maintain the significant burden of proving that he was prejudiced by
counsel's lack of qualification.

15
See also Tucker v. Moore, 56 F. Supp. 2d 611 (D.S.C. 1999) (holding that
State's failure to follow section 17-27-160 is not a violation of an applicant's
constitutional rights because the rights granted under that statute, if not given, do
not penalize the applicant), aff'd, 221 F.3d 600 (4th Cir. 2000), cert. denied, 531
U.S. 1054 (2000); Aeschliman v. State, 973 P.2d 749 (Idaho Ct. App. 1999)
(recognizing that trial counsel's lack of qualifications under the ABA Guidelines
for the Appointment and Performance of Counsel in Death Penalty Case did not
constitute ineffective assistance of counsel per se; concluding that applicant must
allege specific instances where trial counsel fell short of an objective standard of
reasonableness); State v. Misch, 656 N.E.2d 381 (Ohio Ct. App. 1995) (finding that
lack of certification of defense counsel as experienced in capital cases under court
rules does not automatically create a presumption that trial counsel has not
provided effective assistance of counsel; recognizing that the effectiveness of
counsel not qualified under court rule must be judged under the Strickland
standard); State v. Maletta, 781 P.2d 350, 354 (Or. Ct. App. 1989) (concluding that
no legitimate policy is served by dismissal of a charge where trial counsel in a
capital case was not qualified under a state statute if the defendant was not
prejudiced; noting that "adequacy of counsel is measured by performance, not
credentials").
16
Also, by analogy, a violation of a statute in a civil proceeding constitutes
negligence per se. See Fairchild v. S.C. Dep't of Transp., 398 S.C. 90, 727 S.E.2d
407 (2012) (recognizing that the violation of an applicable statute constitutes
negligence per se).
 III. Conclusion

Despite this Court's express ruling in Kelly, Petitioner seeks to have the
Court create a state remedy that is the equivalent of the federal remedy established
by Martinez. We decline to do so. Instead, we reaffirm Kelly and extend its
holding to encompass capital PCR cases. However, we conclude that Petitioner's
allegation that prior PCR counsel were unqualified is not foreclosed by Aice or its
progeny and constitutes a "sufficient reason" to avoid the prohibition of section 17-
27-90 against successive PCR applications. Furthermore, we find that Petitioner's
2011 Application was filed within the one-year statute of limitations provided by
section 17-27-45 as prior PCR counsel's alleged lack of qualification was not
discovered until federal counsel was appointed in 2011. Additionally, we hold that
the PCR judge erroneously construed section 17-27-160(B) as we conclude that at
least one attorney appointed pursuant to this code section must have either (1) prior
experience in capital PCR proceedings, or (2) capital trial experience and capital
PCR training or education.

Because there is a genuine issue of fact as to whether prior PCR counsel
were statutorily qualified, Petitioner should be afforded a hearing on this limited
issue. Cf. McCoy, 401 S.C. at 370, 737 S.E.2d at 627 ("Although Petitioner's PCR
claim may ultimately prove to be untimely, successive, or perhaps unsuccessful on
the merits, the PCR judge erred in granting the State's motion for summary
dismissal because genuine issues of material fact exist as to whether Petitioner's
PCR claim is successive or untimely."). If prior PCR counsel are deemed
unqualified and, as a result, deficient, the PCR judge must make a determination
whether under Strickland, Petitioner was prejudiced. Accordingly, we reverse the
PCR judge's order and remand the matter for a hearing.

REVERSED AND REMANDED.

KITTREDGE and HEARN, JJ., concur. PLEICONES, C.J.,
concurring in part and dissenting in part in a separate opinion. Acting Justice
Jean H. Toal, dissenting in a separate opinion.
CHIEF JUSTICE PLEICONES: I concur in part and dissent in part. I agree
with the majority's analysis of the Martinez issue and concur in its analysis17 of
S.C. Code Ann. § 17-27-160(B) (2014).

I disagree, however, that a capital PCR applicant must demonstrate Strickland18
prejudice in order to be entitled to relief for a statutory violation of § 17-27-
160(B). In 1991, a majority of the Court abolished the doctrine of in favorem vitae
which required the Court to search the record in a capital appeal for legal error.
State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). The abolition of this
common law doctrine was justified in large part because of the protections
afforded by the Uniform Post-Conviction Procedure Act. That PCR is a poor
substitute for in favorem review, however, was made explicit in Franklin v. Catoe,
346 S.C. 563, 552 S.E.2d 718 (2001). In Franklin, the capital PCR applicant
contended trial counsel were ineffective in failing to inform him of his statutory
right to argue to the jury in the guilt phase of his trial. The Franklin majority
acknowledged that the applicant had been denied this statutory right, and that prior
to the abolition of in favorem, this error would have warranted a new trial. The
majority held, however, that with PCR "replacing" in favorem review, a capital
PCR applicant now bore the burden of proving not only error, but also
constitutional prejudice. I dissented, and wrote:

In my opinion, we must honor the General Assembly's
prerogative to establish the procedural safeguards which it
deems necessary to the fair administration of the death penalty.
Where the legislature has prescribed a departure from the
procedures observed in "ordinary" criminal trials, those
deviations should be scrupulously honored. I would thus not
engage in a prejudice analysis where the undisputed facts do not
demonstrate a conscious waiver or strategic decision to forego
one of the special protections mandated by the capital statutes.

Franklin v. Catoe, supra, Pleicones, J., dissenting.

17
I would simply add that where the attorney seeks to be qualified by virtue of

training or CLE, that education must have been accomplished within the two years

preceding the appointment.

18
Strickland v. Washington, 466 U.S. 668 (1984).

Based upon my view of the Court's obligation to enforce statutes governing special
procedures in capital proceedings, including those mandating the qualifications of
attorneys, and based upon the assurances made in Torrence that "[O]ther
mechanisms of protection and of relief have now been created for the [capital]
defendant which safeguard [him] and render the protections afforded by in favorem
vitae surplusage,"19 I would hold that a capital PCR applicant must be appointed
counsel who meet the qualifications set forth in § 17-27-160(B). If upon remand it
is determined that Petitioner was not represented by statutorily qualified counsel,
then in my view the appropriate remedy is a new PCR proceeding in which he is
represented by such counsel.

For the reasons given above, I concur in part and dissent in part.

19
State v. Torrence, 305 S.C. 45, 61, 406 S.E.2d 315, 324 (1991).
ACTING JUSTICE TOAL: I respectfully dissent. I would affirm the post-
conviction relief (PCR) court's dismissal of Petitioner's second PCR application
because Petitioner's allegation of ineffectiveness does not justify the filing of an
untimely, successive PCR application. Further, I disagree with the majority's
interpretation of section 17-27-160(B) of the South Carolina Code20 and would
find that an attorney who is qualified to represent a capital defendant at trial is
likewise qualified to represent a capital defendant in PCR proceedings.

A. Successive Application

First, I would find that Petitioner has not set forth sufficient reasons in his
application to overcome the prohibition against successive PCR applications. See
S.C. Code Ann. § 17-27-90 (2014) ("Any ground finally adjudicated or not so
raised, or knowingly, voluntarily and intelligently waived in the proceeding that
resulted in the conviction or sentence or in any other proceeding the applicant has
taken to secure relief, may not be the basis for a subsequent application, unless the
court finds a ground for relief asserted which for sufficient reason was not asserted
or was inadequately raised in the original, supplemental or amended application.");
Aice v. State, 305 S.C. 448, 450, 409 S.E.2d 392, 394 (1991) (interpreting section
17-27-90 to prohibit "a successive PCR application unless an applicant can point to
a 'sufficient reason' why the new grounds for relief he asserts were not raised, or
were not raised properly").

While I agree with the majority that Petitioner should not be afforded review
pursuant to Martinez,21 and that Kelly22 should be extended to capital PCR cases, I
disagree with the majority's holding that applications containing allegations

20
Section 17-27-160(B) requires the appointment of two attorneys in a PCR capital
case, of which one attorney "must have previously represented a death-sentenced
inmate in state or federal post-conviction relief proceedings or (1) must meet the
minimum qualifications set forth in [s]ection 16-3-26(B) and [s]ection 16-3-26(F)
and (2) have successively completed, within the previous two years, not less than
twelve hours of South Carolina Bar approved continuing legal education or
professional training primarily involving advocacy in the field of capital appellate
and/or post-conviction defense."
21
Martinez v. Ryan, 132 S. Ct. 1309 (2012).
22
Kelly v. State, 404 S.C. 365, 745 S.E.2d 377 (2013).
regarding compliance with section 17-27-160(B) warrant automatic review of an
otherwise successive application. See Aice, 305 S.C. at 451, 409 S.E.2d at 394
([T]he contention that prior PCR counsel was ineffective is not per se a 'sufficient
reason' allowing for a successive PCR application under § 17-27-90."). Even
though Petitioner is challenging his PCR counsel's qualifications, he is merely
asserting a routine ineffectiveness argument, which does not constitute a "sufficient
reason" why the new grounds for relief he asserts were not raised, or were not
raised properly. But see Washington v. State, 324 S.C. 232, 478 S.E.2d 833 (1996)
(permitting a successive application where multiple procedural irregularities
prohibited the applicant from receiving a direct appeal); Carter v. State, 293 S.C.
528, 362 S.E.2d 20 (1987) (permitting a successive application where trial counsel
also served as PCR counsel); Case v. State, 277 S.C. 474, 289 S.E.2d 413 (1982)
(permitting a successive application where a pro se PCR application was dismissed
without a hearing).23 I am hesitant to create another tier of review in an already
thorough process when procedures exist to deal with successive (but meritorious)
claims that may have slipped through the cracks of the normal review process.

B. Interpretation of Section 17-27-160(B)

Moreover, I disagree with the majority's interpretation of section 17-27-
160(B). Since 2003, counsel has been held to be qualified to represent a capital
PCR applicant if counsel is qualified to represent a capital defendant at trial24 and
has completed the continuing legal education requirements. See Re Appointment of
Counsel in Capital Post-Conviction Relief Matters, dated August 15, 2003, found
at http://www.sccourts.org/whatsnew/displaywhatsnew.cfm?indexID=165. I see
no reason to depart from this interpretation now. In my opinion, the sound

23
Moreover, there is still the ultimate safety net provided by Butler petitions in
cases in which a PCR applicant has exhausted all permitted relief but "where there
has been a violation, which, in the setting, constitutes a denial of fundamental
fairness shocking to the universal sense of justice." Butler v. State, 302 S.C. 466,
468, 397 S.E.2d 87, 88 (1990) (internal quotation marks omitted) (citation
omitted); McWee v. State, 357 S.C. 403, 414, 593 S.E.2d 456, 461 (2004)
(Pleicones, J., dissenting) (explaining a Butler petition provides the Court with "a
final opportunity to review the fundamental fairness of a criminal proceeding").
24
An attorney is qualified to represent a capital defendant at trial if he or she has at
least five years' experience as a licensed attorney and at least three years'
experience in the actual trial of felony cases. See S.C. Code Ann. § 16-3-26(B)
(2015); Rule 421(b), SCACR.
reasoning underlying that interpretation still holds true, and the adoption of the
majority's interpretation of the statute would lead to the illogical result that an
attorney meeting the qualifications to defend a capital defendant at trial may not be
qualified to defend him in PCR proceedings. Id.

C. Conclusion

For these reasons, I would affirm the decision of the PCR court.