United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on Respondent's motion for summary judgment [Doc. 22]. Petitioner, proceeding pro se, is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on June 21, 2013. [Doc. 1.] On November 22, 2013, Respondent filed a motion for summary judgment and a return and memorandum. [Docs. 21, 22.] On November 25, 2013, the Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 23.] On February 27, 2014, Petitioner filed a response in opposition to Respondent's motion. [Doc. 32.] Accordingly, the motion is ripe for review.
Petitioner is presently confined and serving his sentence at Kershaw Correctional Institution ("Kershaw"). [Doc. 1 at 1.] In August 1999, a Richland County grand jury indicted Petitioner for two counts of armed robbery, assault and battery with intent to kill, two counts of possession of a firearm or knife during commission of or attempt to commit violent crime, two counts of kidnapping, and criminal sexual conduct in the first degree. [Doc. 21-28.] Petitioner proceeded to trial, represented by John Shupper ("Shupper"), and was found guilty of all charges in September 2009 [Doc. 21-27 at 8.] Judge Costa M. Pleicones sentenced Petitioner to thirty years for the criminal sexual conduct charge, ten years for armed robbery (to be served consecutively), thirty years for the second armed robbery charge (to be served concurrently), thirty years for kidnapping (to be served concurrently), ten years for assault with intent to kill (to be served concurrently), and five years on each possession of firearms charge (to be served concurrently), for a total of forty years. [ Id. at 30-31.]
Petitioner timely filed and served a notice of appeal. On September 13, 2000, Wanda H. Haile of the South Carolina Office of Appellate Defense filed an Anders brief on Petitioner's behalf in the South Carolina Court of Appeals, as well as a petition to be relieved as counsel. [Doc. 21-1.] The brief raised the following issue:
The lower court erred in denying appellant's motion for a severance. [ Id. at 4.] Petitioner filed a pro se response, which Respondent represents cannot be found by the Court of Appeals' Clerk's Office. [Doc. 21 at 2.] The appeals court dismissed the appeal and affirmed the convictions on March 21, 2001. [Doc. 21-2.] Remittitur issued on April 4, 2001. [Doc. 21-3.]
Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on August 8, 2001 [Doc. 21-27 at 46.] Petitioner raised the following grounds for relief:
Issue 1: Trial counsel fail[ed] to adequately prepare for the case, to do a legal and factual investigation[, ] to exercise due diligence in the preparation of the defense's case and to the circumstances of it deprived [Petitioner] of the right to effective assistance of counsel in violation of Article I §§ 3, 14 of the State Constitution as well as the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.
In support of this issue, Petitioner alleged trial counsel failed to obtain the assistance of experts, erroneously advised Petitioner not to take the stand, failed to file a motion to quash the indictments, and failed to properly object to jury instructions. [ Id. at 51.]
Issue 2: Appellate counsel was ineffective in failing to raise issues preserved below, which would have entitled [Petitioner] to reversal on appeal. A defendant is constitutionally entitled to effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830 (1985); see also, Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308 (1983) (appellate counsel's duty to raise issues on appeal).
Petitioner alleged appellate counsel failed to advise Petitioner of the right to request a rehearing, failed to adequately raise the preserved issue of severance, failed to raise the preserved issue of speedy trial, and failed to raise the preserved issue of a directed verdict.
On January 7, 2005, represented by Tara Dawn Shurling ("Shurling"), Petitioner filed an amended PCR application. In the amended application, Petitioner raised eleven issues for review (quoted verbatim):
Issue 1: Trial judge erred in denying defense's motion to quash indictment and dismiss charges due to State's failure to timely act on arrest warrants, violation of Rule 3(c), SCRCrimP. The Solicitor failed to file the indictments with the Clerk of Court (see indictments, they have no clock stamp). Also, State lacked Subject Matter Jurisdiction by State's failure to comply.
Issue 2: Trial Counsel was ineffective for failing to object to "sleeping jurors" not being removed or questioned.
Issue 3: Trial counsel was ineffective in failing to object to trial Court's erroneous instructions. The Court instructed the jury on the elements of accomplice liability, referred to as aiding and abetting, (or, the hand of one is the hand of all), when [Petitioner] was charged as the principal. This instruction impermissibly dilutes the presumption of innocence. State v. LaBarge, 275 S.C. 168, 268 S.E.2d 281 (1980).
Issue 4: Trial Court lacked Subject Matter Jurisdiction due to prohibited practice of prosecutors appearing as sole witness before Grand Jury.
Issue 5: Trial Counsel was ineffective for allowing the violation of [Petitioner's] Due Process Right to a Speedy Trial as [Petitioner] awaited trial for two years and nine months. The delay in bringing the case to trial undoubtedly prejudiced [Petitioner] because of forgotten facts and confused and incomplete recollections. [Petitioner's] alibi witness could not rely on her memory and the [Petitioner] himself could not remember with certainty what had occurred seven months prior to his arrest. Further, the memories and whereabouts of defense witnesses were compromised and lost. There were no continuance orders that mention exceptional circumstances, and the State has never offered any justification for the significant delay.
Issue 6: Trial counsel failed to adequately prepare for case... by failing to obtain the assistance of experts.
Issue 7: Appellate Counsel was ineffective in failing to sufficiently raise any arguable issues in brief on Appeal. Ms. Haile filed an Anders Brief. Arguable issues included needed severance and imputed guilt of [Petitioner] because of being tried with his co-defendant. [Petitioner] contends that the transcript amply documents significant preserved errors and [Petitioner's] trial counsel provided a six page letter to Ms. Haile that detailed many arguable, preserved issues.
Issue 8: Trial counsel failed to call witnesses that could dispute the State's theory that [Petitioner] lived at [redacted]. If the landlord had been asked to testify he would have said that [Petitioner] did not live there and was not even allowed on the property. Also, Henrietta Jordon (former girlfriend) could have been an effective alibi witness if she had been called to testify nearer to the time of the incident - but, because it took so long to get to trial, she could no longer state with certainty how long she and [Petitioner] were together on that day. Trial Counsel was informed about all this and said he would look into it, but never talked about it again. State's witness and victim, Ms. [Redacted] frequently stated that she was "not sure" and "I honestly can't say who did what - it happened so fast." The delay in bringing the case to trial undoubtedly prejudiced [Petitioner] because of forgotten facts and confused and incomplete recollections.
Issue 9: Trial counsel was ineffective for failing to object when the State pushed to try [Petitioner] under the new Armed Robbery Statute. The State pushed to try [Petitioner] under the new Armed Robbery Statute because where under the old statute, a main element is that the suspect had to actually be armed and the offense predated the new statute.
Issue 10: Indictments should have been quashed instead of amended. Trial Counsel erred in not objecting to the Judge deleting from the indictments with his own pen. (See indictments in the back of the transcript-they still read out completely-Tr. pp. 1362 & 1363)
Issue 11: Trial counsel was ineffective for failing to impeach State's witness Dr. Stacey Smithson (Tr. pp. 889-903). The State described the attach on the victim as "vicious." Dr. Smithson corroborated these claims stating that he found redness, abrasions, and lacerations, etc. However, Dr. Smithson's written examination report states that there were no signs of trauma on any part of the victim's body. (p. 3, and 6 of his notes/report)
A hearing was held on the PCR application on January 14, 2005, where Petitioner was represented by Shurling. [Doc. 21-27 at 64.] Testimony was received from Petitioner and from Shupper. [ Id. at 65.] On August 19, 2005, the PCR court filed an order denying and dismissing the application with prejudice. [Doc. 21-27 at 170-76.] After examining each of Petitioner's claims, the PCR court's order concluded the Petitioner "has not established any constitutional violations or deprivations that would require this court to grant his application..." [Doc. 21-7 at 176.] The PCR court's order did not address the ineffectiveness of appellate counsel, but Petitioner did not file a South Carolina Rule of Civil Procedure Rule 59(e) motion to alter or amend the judgment. [Doc. 21 at 4.]
A notice of appeal was timely filed and served. [Doc. 21-4.] On February 27, 2008, Eleanor Duffy Cleary ("Cleary") of the South Carolina Commission on Indigent Defense filed a petition for writ of certiorari on Petitioner's behalf in the South Carolina Supreme Court, seeking review of the PCR court's decision and raising the following issue:
Whether trial counsel was ineffective for failing to argue that petitioner's indictments should be dismissed because the state violated his Sixth Amendment right to a speedy trial and petitioner was prejudiced by this deficiency because the indictments would have been dismissed had the issue been properly raised to the trial judge?
[ Id. ] The Supreme Court of South Carolina transferred the matter to the South Carolina Court of Appeals, which granted certiorari and directed the parties to brief the issues. [Doc. 21-6.] The Court of Appeals heard oral arguments and issued an unpublished opinion on October 27, 2011, affirming Petitioner's convictions and sentences. [Doc. 21-10.] Petitioner filed a petition for rehearing, which was denied on December 20, 2011. [ Id. at 20-21.] Petitioner then filed a petition for writ of certiorari to the South Carolina Supreme Court, which was granted on April 3, 2012, but subsequently dismissed as "improvidently granted" on November 21, 2012. [Doc. 21-17.] Remittitur was issued on December 7, 2012. [Doc. 21-18.]
Petition for Writ of Habeas Corpus
As stated, Petitioner filed this Petition for writ of habeas corpus on June 21, 2013, pursuant to 28 U.S.C. § 2254. [Doc. 1.] Petitioner asserts the following grounds for relief, quoted verbatim:
Ground One: Ineffective assistance of trial counsel for allowing the violation of Petitioner's Sixth Amendment right to a speedy trial.
Supporting Facts: The state held Petitioner in jail for 993 days before calling his case to trial. Petitioner filed pro se speedy trial motions 1998 and 1999. At trial petitioner moved to dismiss the charges because the state failed to provide him a speedy trial. Trial judge made three significant factual findings: (1) Petitioner wanted a speedy trial, (2) the delay was "horrendous, " and)(3) prosecution's justification for the delay was "not terribly well explained." Tr. P. 31, 32, 34, 35, 39, 41 and 44. Trial counsel failed to argue prejudice or cite United States Supreme Court precedent requiring dismissal.
Ground Two: Trial counsel was ineffective for failing to object to "sleeping jurors" not being removed or questioned.
Supporting Facts: Trial judge clearly stated on record that he himself had noticed one of the jurors had "dozed off a time or two... It may have been a classic case of resting his eyes. But I'm here for comment if anybody wants to make a comment on that." Trial counsel failed to object. Tr. P. 1328:20-1329:7.
Ground Three: Trial counsel was ineffective in failing to object to trial court's error in giving instructions which unconstitutionally diluted the state's burden of proof.
Supporting Facts: Trial court instructed the jury on the elements of aiding and abetting when Petitioner was not indicted for this offense/charge, but was charged as the principal. Instructions ...