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Kirton v. Warden of MacDougall Correctional Institution

United States District Court, D. South Carolina, Florence Division

July 15, 2014

Bruce Edward Kirton, Petitioner,
v.
Warden of MacDougall Correctional Institution, Respondent.

REPORT AND RECOMMENDATION

THOMAS E. ROGERS, III, Magistrate Judge.

Petitioner, Bruce Edward Kirton (Petitioner/Kirton), is currently incarcerated at MacDougall Correctional Institution. Petitioner appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254[1] on August 2, 2013. Respondent filed a motion for summary judgment on February 3, 2014, along with a return, supporting memorandum and exhibits. (Docs. #29 and #30). The undersigned issued an order filed February 5, 2014, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #31). Petitioner filed additional documents on February 14, 2014. (Doc. #36).

I. PROCEDURAL HISTORY

The procedural history as set forth by the Respondent in his memorandum has not been seriously disputed by the Petitioner in his response. Therefore, the undersigned will set out the undisputed procedural history as set forth by the Respondent, in part.

Petitioner is presently confined in the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Georgetown County. Petitioner was indicted by the Georgetown County Grand Jury during the June 2006 Term of the Georgetown County Court of General Sessions for one count of Criminal Sexual Conduct with a Minor in the Second Degree. (App. 791-92). At trial, Petitioner was represented by Stuart Axelrod, Esquire. The State was represented by Assistant Solicitor Robert B. Brian of the Fifteenth Judicial Circuit. On October 23-26, 2006, Petitioner was tried by jury on the charge before the Honorable John M. Milling, Circuit Court Judge. On October 26, 2006, the jury found Petitioner guilty. (App. 679). Judge Milling sentenced Petitioner to a period of confinement of twelve years for the conviction. (App. 691).

DIRECT APPEAL

Petitioner timely filed and served a Notice of Appeal on November 3, 2006. (See Attachment No. 2). On appeal, Petitioner was represented by Wanda H. Carter, Deputy Chief Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. (See Attachment No. 3). Petitioner's appeal was perfected with the filing of an amended Final Brief of Appellant. (Attachment No. 3). In the Final Brief, Petitioner asserted the following three arguments.

1. The trial court erred in denying appellant's motion to exclude evidence of prior bad acts;
2. The lower court erred in denying appellant's motion to suppress a statement made during his bond hearing.
3. The lower court erred in denying appellant's motions regarding testimony that exceeded the parameters of time and place during the trial.

(Final brief of Appellant, attachment #3).

In a published Opinion filed December 17, 2008, the South Carolina Court of Appeals affirmed Petitioner's conviction. State v. Kirton , 381 S.C. 7, 671 S.E.2d 107 (Ct.App. 2008). (App. 793-815). In the Opinion, the Court of Appeals found that the prior bad act testimony presented was properly admitted. Kirton , 381 S.C. at 25-38, 671 S.E.2d at (App. 804-11). Further, the Court of Appeals found the admission of the testimony challenged would have been harmless if it was improperly admitted. The Court of Appeals also affirmed that the trial court did not err in denying Petitioner's motion to suppress the statement he made during his bond hearing. In addressing Petitioner's final issue on appeal, whether the trial court erred in allowing testimony by the State's expert witness, Dr. Carol Rahter, that went beyond the corroborative testimony allowed by Rule 801(d)(1)(D), SCRE, the Court of Appeals determined that the issue was not preserved for appellate review. Kirton , 381 S.C. at 42-44, 671 S.E.2d at 125-26.The Remittitur was issued on January 6, 2009. (Attachment No. 5).

POST-CONVICTION RELIEF ACTION AND APPEAL

On February 5, 2009, Petitioner filed an Application for Post-Conviction Relief (PCR). (App. 693-710, Attachment No. 6). In the Application, Petitioner asserted several claims of ineffective assistance of trial counsel and claims of prosecutorial misconduct. Specifically, he asserted trial counsel was ineffective for failing to subpoena important material witnesses. (App. 694). Second, he claimed his attorney failed to challenge the indictment based upon the State's failure to have the matter disposed of within 180 days of Petitioner's arrest. (App. 698). Third, he alleged trial counsel failed to argue the indictments were improper because the prosecuting agents were the sole witnesses before the grand jury. (App. 698-99). Fifth, Petitioner appeared to contend counsel failed to show the indictment was insufficient. (App. 701). Sixth, Petitioner alleged counsel failed to object to Carol Rahter's testimony. (App. 701). Seventh, Petitioner asserted counsel should have objected to the solicitor's opening statement and closing argument. (App. 702). Eighth, Petitioner complained that counsel failed to timely file a motion requiring the State to produce all Brady materials in a timely fashion, specifically referring to an interview tape. Id . Ninth, Petitioner averred counsel failed to subpoena several important witnesses. (App. 703). Tenth, Petitioner claimed counsel failed to object at trial to questions about the victim going to a family doctor. Id . Eleventh, Petitioner appears to have argued that counsel was ineffective in raising the wrong argument as to why his statement at the bond hearing was inadmissible. (App. 703-04). Twelfth, Petitioner contended counsel failed to object to the instruction that was given to the jury that a mental evaluation was never performed on Petitioner. Thirteenth, Petitioner claimed counsel was ineffective for not moving to receive a copy of, or moving to exclude, the magistrate's check list and other documents that were mentioned during the hearing on the voluntariness of the bond hearing statement. (App. 705). Fourteenth, Petitioner argued counsel should have moved to exclude the polygraph report. (App. 706). Fifteenth, Petitioner contended counsel was ineffective for not subpoenaing another material witness. (App. 707). Sixteenth, Petitioner alleged counsel was ineffective for not objecting to the leading questions during the direct examination of Jordan N. Id . Seventeenth, Petitioner asserted trial counsel was ineffective for not contemporaneously objecting to leading questions to Tamra B. Id . Eighteenth, Petitioner claimed counsel failed to impeach the victim when she changed her story. Id . Nineteenth, Petitioner argued counsel was ineffective for not objecting to some statement with Brittney W. (App. 708). Twentieth, Petitioner averred counsel failed to use a statement. Id . Twenty-first, Petitioner claimed counsel was ineffective for not asking certain questions Petitioner wanted asked during cross-examination of the victim. (App. 708-09).

The State served its Return on March 30, 2009. (App. 461-64, Attachment No. 7). An evidentiary hearing was held before the Honorable Benjamin H. Culbertson, Circuit Court Judge, on February 11, 2010. (App. 715-777). Petitioner was present and was represented by Paul Archer, Esquire. Id . The State was represented by Assistant Attorney General Christina J. Catoe. Id . The PCR Court filed its Order of Dismissal on March 23, 2010. (App. 779-90).

The PCR Court issued its findings of fact and conclusions of law. The PCR Court noted that in Petitioner's PCR application he alleged his custody was unlawful for the following reasons:

1. Ineffective assistance of trial counsel-attorney failed to subpoena important material witnesses;
2. Prosecutorial misconduct which negatively influenced the jury; and
3. Prejudicial judicial misconduct objected to by trial counsel over court procedural defect; trial judge himself called a magistrate court judge to testify in jury's presence that I ...

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