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Brown v. Warden of Perry Correctional Institution

United States District Court, D. South Carolina, Rock Hill Division

September 25, 2014

Derek J. Brown, Petitioner,
Warden of Perry Correctional Institution, Respondent.


TIMOTHY M. CAIN, District Judge.

This matter is before the court on Petitioner Derek J. Brown's ("Brown") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge.[1] Magistrate Judge Paige J. Gossett filed a Report and Recommendation ("Report") recommending Respondent's Summary Judgment Motion (ECF No. 15) be granted and the petition be dismissed with prejudice. (ECF No. 25). The magistrate judge advised the parties of the procedures and requirements for filing objections to the Report and the serious consequences if they failed to do so. Id. at 19. Brown has filed objections to the Report. (ECF No. 54).[2]

The court is obligated to conduct a de novo review of every portion of the magistrate judge's report to which objections have been filed. Id. However, the court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the magistrate judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

I. Background/Procedural History

The underlying facts were summarized in the state court's opinion on direct appeal as follows:

This case involves the drive-by shooting of fourteen-year-old Phillip Johnson, Jr. on August 4, 2001. Corey Shelton, Derek Brown, and Ricky Latimore were indicted with murder and possession of a firearm or a knife during commission of a violent crime in connection with this incident.
On the night of the shooting, Johnson, his cousin Xavier Smith, and a number of friends attended a high school football game. After leaving the football game, the boys went to a friend's house on Pleasant View Drive, and "hung out" with ten to twelve boys in the front yard. Smith testified that around 11:00 to 11:30 p.m., a large, dark-colored car, which had been parked nearby when the boys arrived, came down the road with two guns firing out the windows. Someone in the group fired back at the car as it drove away. Johnson was shot in the drive-by.
Johnson died from his gunshot wound on the way to the hospital. Bullet fragments removed from his body were sent to SLED for testing. At the scene, officers found fifteen 7.62mm casings, seven.45 casings, as well as a 9mm casing. Bullets that penetrated a nearby residence were also sent to SLED for testing.
Smith could not identify the people in the assailant's car. Directly after the drive-by, he gave the police the names of Terrence Bishop, Darrell Brown, and "K, " but testified that those were just the names of some boys with whom he had gotten into an argument at the football game. Smith also told the police at the scene that the car was green, while at trial he only remembered that it was dark.
On August 25, 2001, Darryl Mosely was brought to the police station where he provided a statement against the co-defendants, who are his cousins. At trial, Mosely retracted his statement, claiming that he never read the statement, that he was lying because the officers threatened his life, and that they had fed him the details and information in his statement. He did, however, admit on cross-examination that the statement accurately reflected what he told the officer. He also admitted at trial that he had seen the three defendants together before they left the "Lion's Den, " but that he did not see any of them with a gun.
Mosely's original statement to police contained more incriminating information. He said that on the night of the incident, he saw Shelton with an SKS rifle and a banana clip strapped around his neck. He stated that the three defendants then got into a green four-door Pontiac Catalina and drove off.
On August 26, 2001, defendant Corey Shelton told Captain Williams where he could locate an AK-47. Officers went to the place he described and found an AK-47, some banana clips for the AK-47, and a.32 caliber revolver.
Defendant Derrick Brown made a statement to Chief Deputy Eddie Smith. In the statement, Brown said that at about 11:00 to 11:30 p.m., on the night of the shooting, he was driving down Pleasant View Drive in his Green Pontiac Catalina and drinking beer when he heard a shot. He said that he thought someone was shooting at him, so he pulled out his.45 caliber pistol and fired it out the window as he drove away. He stated he then hid the gun. Brown claimed he did not know who he was shooting at and did not know Phillip Johnson. After he had made this statement, Brown personally led police to where he hid the.45 caliber pistol.
The SLED examiner found that the bullet fragment taken from Johnson was too damaged to conclusively identify whether it came from Shelton's AK-47, but that its characteristics indicated it could have been fired from his weapon. The bullet that killed Johnson was not from a.45 pistol. The fifteen 7.62mm casings found at the scene were the type that could have been fired from Shelton's AK-47.
All seven of the.45 casings found at the scene were matched to Brown's.45 caliber pistol. The SLED examiner also conclusively matched the bullet that had penetrated a nearby house to Brown's pistol. Revolvers like Shelton's.32 caliber do not automatically eject casings, which explains why none were found at the scene, but the SLED examiner did conclusively match Shelton's revolver to the other bullet that had penetrated a nearby house.
At the end of the State's case and again at the conclusion of the trial, Brown moved for a directed verdict, arguing the State failed to introduce any evidence he murdered Johnson. The motions were denied, and the jury convicted Brown of both murder and possession of a firearm during commission of a violent crime.

State v. Brown, 2006 WL 7287191 (S.C. Ct. App. Dec. 7, 2006)(unpublished)(footnotes omitted).

Brown specifically states that he agrees with the magistrate judge's recitation of procedural history. (Objections at 1). Accordingly, the court adopts the Background section of the Report, and only briefly sets out the procedural history here.

Following a jury trial, Brown was convicted of murder and possession of a weapon during the commission of a violent crime. The circuit court sentenced Brown to life for the murder and five years' imprisonment for the weapons conviction. On direct appeal, Brown raised one issue - whether the trial judge erred by denying Brown's directed verdict motion. The South Carolina Court of Appeals affirmed Brown's convictions and sentence, and denied his petition for rehearing. Brown then filed a pro se application for post-conviction relief ("PCR") raising the following issues: 1) ineffective assistance of counsel; 2) prosecutorial misconduct; 3) subject matter jurisdiction; 4) jury tampering; and 5) denial of due process. Subsequently, through counsel, Brown amended his application to include the following four issues:

1) Evidence of third party guilt was improperly excluded;
2) The prosecutor improperly commented on Derek Brown's failure to take the stand;
3) The real question in the motion for a directed verdict and on appeal was whether the State had produced evidence which was more than a suspicion that someone with whom Derek Brown associated committed the murder. Appellate counsel and trial ...

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