Pearson v. Harrison, 4th Cir. (2001)
Pearson v. Harrison, 4th Cir. (2001)
Pearson v. Harrison, 4th Cir. (2001)
No. 00-7512
COUNSEL
Tyrone Pearson, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, William Edgar Salter, III, OFFICE OF THE
ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellees.
PEARSON v. HARRISON
OPINION
PER CURIAM:
Tyrone Pearson appeals the district courts order adopting the magistrate judges recommendation that relief be denied on his 28
U.S.C.A. 2254 (West 1994 & Supp. 2000) petition. On appeal,
Pearson continues to press the issues he raised in his 2254 petition.
We deny a certificate of appealability and dismiss this appeal.
Pearson first claims that he was denied assistance of counsel at a
preliminary hearing. Observing that Pearson failed to file a motion
pursuant to S.C.R. Civ. P. 59(e) to preserve the issue for appellate
review during post-conviction proceedings in state court, the magistrate judge concluded that Pearson procedurally defaulted this claim
and that he was therefore barred from raising it in federal court. We
disagree.
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 states
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 (1991); Harris v. Reed, 489 U.S. 255, 262
(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 procedure in denying habeas
relief, and that state procedure provided "an independent and adequate state ground" for denying relief. Smith v. Dixon, 14 F.3d 956
(4th Cir. 1994) (en banc).
The plain statement rule is inapplicable, however, when the claim
was not presented to the highest state court with jurisdiction to decide
PEARSON v. HARRISON
PEARSON v. HARRISON