Tyrone PEARSON, Petitioner-Appellant, v. Rickie HARRISON, Warden; Charles M. Condon, Attorney General of the State of South Carolina, Respondents-Appellees.
No. 00-7512.
United States Court of Appeals, Fourth Circuit.
Submitted April 13, 2001. Decided April 26, 2001.
248 F.3d 1135
Tyrone Pearson, pro se. Donald John Zelenka, Chief Deputy Attorney General, William Edgar Salter, III, Office of the Attorney General of South Carolina, Columbia, SC, for appellees.
OPINION
PER CURIAM.
Tyrone Pearson appeals the district court‘s order adopting the magistrate judge‘s recommendation that relief be denied on his
Pearson first claims that he was denied assistance of counsel at a preliminary hearing. Observing that Pearson failed to file a motion pursuant to
When a federal habeas petitioner fails to comply with a state procedural rule during state post-conviction relief proceedings, and that failure provides an adequate and independent ground for a state‘s denial of relief, federal review is barred if the state court expressly relied on the procedural default in denying relief. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). In determining whether the state supreme court expressly relied on the procedural ground in denying relief, we apply the plain statement rule, under which federal habeas review is only barred if the last state court to which petitioner presented his federal claims “clearly and expressly rel[ied]” on state
The plain statement rule is inapplicable, however, when the claim was not presented to the highest state court with jurisdiction to decide it. Coleman, 501 U.S. at 735, 111 S.Ct. 2546. Under those circumstances, a federal court will refuse to hear a claim if it is clear that the claim would have been procedurally barred had it been presented to the highest state court. Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir.1990).
In his petition for certiorari to the state supreme court, Pearson did not assert he was denied counsel during a preliminary hearing.* Thus, the question is whether it is clear that the state supreme court would have refused to hear the claim because Pearson failed to properly preserve it by filing a
As a matter of general appellate procedure in South Carolina, to preserve an issue for review, parties are required to make sure that the lower court‘s final judgment reflects a ruling on the issue. Pruitt v. State, 310 S.C. 254, 423 S.E.2d 127, 128 n. 2 (S.C.1992). If the final judgment does not contain such a ruling, parties are usually required to file a motion to amend judgment pursuant to
We nonetheless dismiss Pearson‘s appeal from the denial of relief on Pearson‘s claim that he was denied counsel at a preliminary hearing because we find the claim meritless. The Sixth Amendment does not guarantee an accused the assistance of counsel at a probable cause hearing. Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Although the rule under which prosecutors conducted Pearson‘s hearing is entitled “Preliminary Hearings,” such hearings are limited to probable cause determinations.
Pearson next contends that he received ineffective assistance of counsel for two reasons: (1) trial counsel failed to advise him of legal theories concerning suppression of evidence prior to Pearson‘s guilty plea, and (2) trial counsel failed to file a motion to suppress unconstitutionally
Finally, Pearson contends that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and he also challenges his sentence. Pearson did not raise either of these claims in his petition to the district court, however, and they are therefore waived. Muth v. United States, 1 F.3d 246, 250 (4th Cir.1993).
Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and oral argument would not aid the decisional process.
DISMISSED.