United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Petitioner Alvin Keith Brown ("Petitioner") is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 26, 27. On June 20, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 28. On August 18, 2014, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 35. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 27, be granted.
Petitioner is currently incarcerated in the Kirkland Correctional Institution ("KCI") of the South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 1986, Petitioner was indicted at the April term of the Florence County Grand Jury for possession of crack cocaine with intent to distribute (PWID crack), assault and battery with intent to kill (ABIK), possession of a weapon during the commission of a violent crime, resisting arrest with a deadly weapon, assault with intent to kill, and possession of prescription drugs unlawfully. App. 662-63. William N. Nettles represented Petitioner in a jury trial that convened from June 14-17, 2004, before the Honorable J. Michael Baxley. App. 1. The jury found Petitioner guilty on all charges except rather than finding Petitioner guilty of assault with intent to kill, the jury found Petitioner guilty of assault and battery of a high and aggravated nature, a lesser-included offense. App. 629-31. Judge Baxley sentenced Petitioner to fifteen years imprisonment and a $25, 000 fine for PWID, two years imprisonment for unlawful possession of prescription drugs, five years imprisonment for the weapons possession, ten years imprisonment each for assault and battery of a high and aggravated nature and resisting arrest with a deadly weapon, and life imprisonment without the possibility of parole for the ABIK conviction. App. 646-47. Judge Baxley ordered that Petitioner's sentences run concurrent with his life sentence for ABIK. See id.
Petitioner timely filed and served notice of his intent to appeal on June 23, 2004. ECF No. 26-3. Assistant Appellate Defender Eleanor Duffy Cleary represented Petitioner on direct appeal and filed an Anders  Brief on his behalf on September 7, 2006. ECF No. 26-4. In his Anders brief, Petitioner argued that "[t]he trial court erred by refusing to suppress evidence of the crack cocaine, resisting arrest, and the assault on police officers where the evidence was seized pursuant to an unlawful seizure of the appellant." Id. at 4, 6. On January 11, 2008, the South Carolina Court of Appeals dismissed Brown's appeal in an unpublished Opinion, 2008-UP-033. ECF No. 26-5. On January 30, 2008 the South Carolina Court of Appeals issued a Remittitur. ECF No. 26-6.
II. Procedural History
Petitioner filed two applications for Post-Conviction Relief ("PCR"). Petitioner filed his first PCR Application on December 10, 2008, (2008-CP-21-2339), alleging "Violation of the 6th Amendment of the Constitution[, ] Ineffective Assistance of Counsel[, and] Violation of the 14th Amendment of the Constitution." App. 665-75. Specifically, Petitioner asserted the following allegations, recited verbatim, regarding his claims:
(a) Judge did not all witnesses to testify in my behalf when facing a sentence of life without parole.
(b) It was because of the ineffectiveness of trial counsel that my witnesses were not able to testify. (b)(ii) Trial counsel being ineffective hadn't decided on a defense at the time of trial and did not request for an adequate postponement.
(c) Intent not proved beyond a reasonable doubt considering all the mitigating circumstances:
handcuffed behind back at the time of shooting. At least 20 minutes before I was handcuffed where officers were not aware of my weapon but didn't shoot. Only one shot was fired. Mentally ill. Victim shot in leg. Not shot in face, back, or upper body.
App. 669-70 (trial transcript citations omitted). The State filed a Return to Petitioner's Application on May 8, 2009. ECF No. 676-80. Thereafter a motions hearing convened on January 25, 2010, before the Honorable Thomas A. Russo. App. 682-727. Petitioner was present and represented by Charles T. Brooks, Esq. See id. After the hearing, the PCR Court denied and dismissed Petitioner's PCR Application with prejudice on February 19, 2010, because "former trial counsel and appellate counsel rendered reasonably effective assistance... [and Petitioner] did not carry his burden to show a reasonable probability that the result at trial would have been different had trial counsel or appellate counsel done what [Petitioner] alleged should or should not have done." App. 736.
On February 23, 2010, PCR counsel Brooks filed a Notice of Appeal on Petitioner's behalf. ECF No. 26-7. Thereafter, on September 15, 2010, Assistant Appellate Defender Robert M. Pachak filed a Johnson  Petition for Writ of Certiorari on Petitioner's behalf and raised: "Whether defense counsel was ineffective in failing to object to a bad malice charge that instructed the jury that they were to infer malice from the use of a deadly weapon?" ECF No. 26-8. Petitioner also filed a pro se brief. ECF No. 26-9. The South Carolina Court of Appeals issued an Order denying the Petition for Certiorari on October 22, 2012, and issued the Remittitur on November 8, 2012. ECF Nos. 26-10; 26-11.
Petitioner filed his second PCR Application (2012-CP-21-337) on February 6, 2013. ECF No. 26-12. Petitioner claimed, verbatim, he was being held unlawfully based on the following grounds: "Violation of United States Constitution Article 1 Section 9[;] Violation of the Eighth Amendment [;] and Ineffective Assistance of Counsel[;] Violation of State Statute 17-24-30 Verdict Form [;] Violation of State Statute XX-XX-XXX(a) [;] Ineffective Assistance of Appellate Counsel." ECF No. 26-12 at 5-6. As facts to support the grounds Petitioner stated, verbatim:
(a) I received a life sentence without parole under the "Two-Strike Law." The two strike law came into effect in 1996. My first strike was in 1995.
(b) I was sentenced to life without parole for shooting a man in the leg one time. The United States Supreme Court recently ruled that it was unconstitutional to give a juvenile a life sentence when they haven't killed anyone.
(c) Trial counsel was ineffective for not making a way for my witnesses to testify. Trial counsel also didn't object to a burden shifting charge of malice. Trial counsel also didn't request a continuance to develop a proper defense. Trial counsel was ...