UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TYRONE PEARSON, 

Petitioner-Appellant,

v.  No. 00-7512 RICKIE HARRISON, Warden; CHARLES

M. CONDON, Attorney General of

the State of South Carolina,

Respondents-Appellees. 

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

Joseph F. Anderson, Jr., Chief District Judge.

(CA-00-1040-6-17-AK)

Submitted: April 13, 2001

Decided: April 26, 2001

Before WILLIAMS and GREGORY, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion. 

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.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Tyrone Pearson appeals the district court’s order adopting the magistrate judge’s 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 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 (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

2 PEARSON v. HARRISON
it. Coleman, 501 U.S. at 735. 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 S.C.R. Civ. P. 59(e) motion. 

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, 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 S.C.R. Civ. P. 59(e). Id. In the specific context of post-conviction relief, however, S.C. Code Ann. § 17-

27-80 (Law. Co-op. 1976) requires a PCR court to "make specific

findings of fact, and state expressly its conclusions of law, relating to

each issue presented" to it. Citing this provision of state law, the

South Carolina Supreme Court has consistently vacated and remanded

PCR court judgments that do not contain findings on issues presented

to the PCR court, Bryson v. State, 493 S.E.2d 500, 500 (S.C. 1997);

McCullough v. State, 464 S.E.2d 340, 340 (S.C. 1995); Pruitt v. State,

423 S.E.2d 127 (S.C. 1992); McCray v. State, 408 S.E.2d 241 (S.C.

1991), and has done so notwithstanding a PCR petitioner’s failure to

preserve an issue by filing a S.C.R. Civ. P. 59(e) motion. See, e.g.,

Pruitt, 423 S.E.2d at 127. Accordingly, we find that Pearson’s failure

to file a S.C.R. Civ. P. 59(e) motion to preserve his denial of counsel

claim would not have clearly barred him from presenting that claim

to the state supreme court. 

*Because we ultimately conclude that Pearson’s assistance of counsel

claim is meritless, we do not address exhaustion. See Granberry v.

Greer, 481 U.S. 129, 135 (1987) ("[I]t is appropriate for the court of

appeals to dispose of nonmeritorious petitions without reaching the nonexhaustion issue."). 

PEARSON v. HARRISON 3
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 (1975). Although the

rule under which prosecutors conducted Pearson’s hearing is entitled

"Preliminary Hearings," such hearings are limited to probable cause

determinations. S.C.R. Crim. P. 2(a), (c). Thus, under Gerstein, the

State was not required to provide Pearson an attorney at the hearing.

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 obtained evidence. With regard to Pearson’s claim that he

received ineffective assistance of counsel with respect to his guilty

plea, we have reviewed Pearson’s informal brief, the record, and the

magistrate judge’s recommendation. We find no error, and therefore

dismiss the appeal as to this claim based on the reasoning of the magistrate judge. Furthermore, although the magistrate judge’s report did

not expressly address Pearson’s allegation that trial counsel failed to

file a motion to suppress, we also deny relief on that claim. Pearson

has not identified any specific evidence that should have been suppressed. 

Finally, Pearson contends that the prosecution violated Brady v.

Maryland, 373 U.S. 83 (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

4 PEARSON v. HARRISON