United States District Court, D. South Carolina, Rock Hill Division
Kevin A. Reilly, Petitioner,
Larry Cartledge, Warden of Perry Correctional Institution, Respondent.
SOL BLATT, JR., District Judge.
This matter is before the Court on Kevin A. Reilly's ("Reilly" or "the Petitioner") pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., the matter was referred to a United States Magistrate Judge for preliminary review. On January 27, 2013, the Magistrate Judge issued a report and recommendation ("R&R"), analyzing the issues and recommending that the Court grant the Respondent's motion for summary judgment and deny Reilly's petition. Attached the R&R was a notice advising the parties of the right to file written, specific objections to the R&R within fourteen days of receiving a copy. The Petitioner filed two motions for extensions of time to file objections, both of which the Court granted. As of March 21, 2014, the Court had not received objections from the Petitioner. Therefore, the Court entered an order adopting the R&R, granting the Respondent's motion for summary judgment, and denying Reilly's section 2254 petition.
Subsequently, on April 7, 2014, the Court received a copy of the Petitioner's objections, which were dated February 25, 2014. Also on April 7 the Court received a motion from Reilly asking the Court to set aside its March 21 order and consider his objections based on the fact that he deposited them in his institution's mail processing system in a timely manner. Indeed, the envelope attached to Reilly's objections is stamped as "received" in the P.C.I. mail room on February 25, 2014, even though-for some unknown reason-it was not "received" by this Court until April 7, 2014. In the interest of fairness, the Court grants Reilly's motion to set aside the March 21 order and judgment (Entry 49). The Court will consider the Petitioner's objections and will conduct a de novo review of any portion of the R&R to which the Petitioner has objected.
Reilly was indicted in Greenville County in April of 2005 for three counts of kidnapping; in August of 2005, he was also indicted in Greenville County for possession of a weapon during the commission of a violent crime, conspiracy, and assault and battery with intent to kill. Reilly proceeded to trial from October 3 to 7, 2006, and he was represented by Thomas Creech, Esquire. On October 7, 2006, the jury convicted Reilly of all six charges, and the court sentenced him to thirty years' imprisonment for each of the kidnapping convictions, to be served concurrently; twenty years' imprisonment for the assault and battery with intent to kill conviction, to be served consecutive to the kidnapping sentences; five years' imprisonment on the charge for possession of a weapon during the commission of a violent crime, to be served consecutive to the kidnapping and the assault and battery with intent to kill sentences; and fifteen years' imprisonment on the conspiracy conviction, to be served concurrently to all other sentences. Altogether, the Petitioner received fifty-five years of confinement.
Reilly filed a timely notice of appeal and was represented by Katherine H. Hudgins, Esquire, Appellate Defendant with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who filed a final brief alleging the following claim:
Did the trial court err in admitting evidence of an unsuccessful attempt by Reilly to steal money the victim kept in a pig pen at his home as evidence that Reilly was one of three masked men involved with a kidnapping and assault of the victim and his workers while they were clearing land at the Clemson ICAR facility?
(Entry 20-11 at 4.) On February 23, 2009, the South Carolina Court of Appeals issued an order affirming the lower court's decision, and the remittitur was issued on March 12, 2009.
On April 21, 2009, Reilly filed a pro se application for post-conviction relief ("PCR"), in which he raised claims of ineffective assistance of trial counsel and ineffective assistance due to a due process violation. (See Reilly v. State of South Carolina, 09-CP-23-3442; Entry 20-7 at 80-85.) Reilly filed a pro se amendment to his PCR application, alleging that he received ineffective assistance of counsel because counsel (1) failed to object to hearsay identification testimony; (2) failed to review discovery materials with Reilly prior to trial; (3) failed to thoroughly investigate the case and meet with Reilly to prepare for trial; and (4) failed to allow Reilly to testify at trial. (See Entry 20-15.)
On May 26, 2010, the PCR court held an evidentiary hearing at which Reilly appeared and testified and was represented by Caroline Horlbeck, Esquire. In an order filed September 20, 2010, the PCR judge denied and dismissed with prejudice Reilly's PCR application. (See Entry 20-8 at 3-9.)
Reilly filed an appeal, and on appeal he was represented by Elizabeth Franklin-Best, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who filed a Johnson petition on Reilly's behalf raising the following issue: "Did trial counsel render ineffective assistance of counsel when he did not provide petitioner with discovery prior to trial?" (Entry 20-17 at 3.) See Johnson v. State , 364 S.E.2d 201 (1988) (applying the factors of Anders v. California , 386 U.S. 738 (1967), to post-conviction appeals).
Reilly filed a pro se response to the Johnson petition in which he raised the following additional issues:
Issue 1. Counsel failed to provide the Applicant a copy of discovery materials pretrial.
Issue 2. Counsel failed to point out to the jury the inconsistent identification testimony given by one alleged co-defendant and other witnesses.
Issue 3. Counsel failed to object to the use of false testimony used in violation of the Fourteenth Amendment.
Issue 4. Indictments were unlawfully [ob]tained and information supporting their legitimacy was falsified by the Solicitor.
(Entry 20-20.) On August 10, 2012, the South Carolina Supreme Court issued an order denying Reilly's petition for a writ of certiorari, and the remittitur was issued on August 28, 2012.
On December 12, 2012, Reilly filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising the following grounds:
Ground One: The trial court erred in admitting evidence of an unsuccessful attempt by the Petitioner to steal money the victim kept in a pig pen at his home as evidence that the Petitioner was one of three masked men involved with a kidnapping and assault of the victim and his workers while they were clearing land at the Clemson ICAR facility.
Ground Two: Ineffective assistance of trial counsel.
(a) Supporting Facts:
 Trial counsel failed to provide the Petitioner a copy of discovery materials pretrial.
 Trial counsel failed to pointout to the Jury the inconsistent identification testimony given by one of the alleged codefendants and other witnesses.
 Trial counsel failed to object to the intentional and knowing use of false (perjured) testimony in violation of the Fourteenth Amendment.
Ground Three: Prosecutorial Misconduct.
(a) Supporting Facts:
 The prosecuting Solicitor knowingly and intentionally presented perjured testimony in his case-in-chief.
 The prosecuting Solicitor knowingly and intentionally used unlawfully obtained indictments to convey both personal and subject matter jurisdiction upon the criminal court in order to prosecute the Petitioner.
(Entry 1 at 4, 6-7, 9, 12, ...