United States District Court, District of South Carolina
Mario Demanuel Hunter, Petitioner, Pro se, Ridgeville, SC.
For Warden of Lieber Correctional Institution, Respondent: Melody Jane Brown, LEAD ATTORNEY, Donald John Zelenka, SC Attorney General's Office, Columbia, SC.
REPORT AND RECOMMENDATION
Kaymani D. West, Uited States Magistrate Judge.
Mario Demanuel Hunter (" Petitioner"), a state prisoner, filed this pro se Petition for 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) (D.S.C.), for a Report and Recommendation on Respondent's Motion for Summary Judgment. ECF Nos. 42, 43. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 44. Petitioner filed a Response in opposition to Respondent's Motion. ECF No. 51. Respondent did not file a reply to Petitioner's Response. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment be granted.
I. Procedural History
Petitioner is currently incarcerated at Lieber Correctional Institution, part of the South Carolina Department of Corrections prison system. Pet. 1, ECF No. 1. In February 2007, a Darlington County Grand Jury indicted Petitioner on one count of larceny less than one thousand dollars and two counts of first-degree burglary. App. 280-85. J. Richard Jones represented Petitioner, and a jury trial on the indictment was conducted before Judge Howard P. King on October 22 and 23, 2007. App. 154-55. The trial judge entered a directed verdict on one of the first-degree burglary charges, and the jury convicted Petitioner on the larceny and remaining first-degree burglary charge. App. 228-29. Petitioner was sentenced to twenty years in prison on the burglary conviction and was given a concurrent thirty-day sentence on the larceny conviction. App. 238.
On October 14, 2008, Deputy Chief Appellate Defender Wanda H. Carter filed an Anders  brief on Petitioner's behalf and moved to be relieved from representation in the direct appeal. ECF No. 43-2 at 8. The only point appellate counsel raised in the brief was,
The lower court erred in denying appellant's motion to suppress the statement given in the case because it was not given voluntarily, as appellant was under the influence of cocaine when he gave his statement to the police.
Id. at 3.
After receiving notice that his appellate counsel filed an Anders brief, ECF No. 43-3, Petitioner submitted a pro se brief on November 24, 2008, raising the following additional point on appeal: " Whether Trial Court Committed Reversible Error by Refusing to Grant A DIRECTED VERDICT; Where the Court's Reliance was Based Upon INSUFFICIENT CIRCUMSTANTIAL EVIDENCE . . ." ECF No. 43-4 at 4. The South Carolina Court of Appeals considered the appeal without oral argument and dismissed the appeal and granted counsel's motion to be relieved in a one-paragraph, unpublished opinion dated November 19, 2009. ECF No. 43-5; see State v. Hunter, No. 2009-UP-530, (S.C. Ct. App. Nov. 19, 2009).
Petitioner filed a post-conviction relief (" PCR") application on July 2, 2010, App. 240, raising the following points (quoted verbatim):
Ineffective Assistance of Counsel at Trial and Appellet [sic] Counsel . . . (a) Trial Counsel failed to investigate the facts of the case (b) Appellet [sic] Counsel failed to present issues at the Appeal (c) all of which was a violation of my U.S. Constitution 6th Amendment.
The State made a return to the PCR application on September 28, 2010. App. 247-50; see Hunter v. State, No. 2009-CP-34-00397. An evidentiary hearing was held June 9, 2011 in Darlington County before the Honorable J. Michael Baxley. App. 252-72. Charles T. Brooks, III, Esq., represented Petitioner in the action, and Assistant Attorney General Karen C. Ratigan represented the State. App. 252. Petitioner and his trial counsel, Attorney J. Richard Jones, testified at the hearing. App. 253. In his PCR testimony, Petitioner stated that his trial counsel was ineffective because he did not object to the police officer's testimony about finding a bracelet belonging to the victim in Petitioner's pocket at the time he was apprehended and because he did not call Petitioner's two aunts as alibi witnesses. App. 259-61. Petitioner stated that trial counsel's failure to keep the testimony about the bracelet from the jury was very damaging to him because the State introduced no direct evidence of his presence inside the victims' home. App. 260-61.
Petitioner's trial counsel testified that, even though the bracelet itself was not admitted into evidence, he did not know of any legal reason that the police officer's testimony about finding the bracelet on Petitioner's person could be suppressed and that is why there was no objection to it. App. 263, 265. However, trial counsel stated that in his closing argument he argued the lack of forensic evidence and the State's failure to introduce the bracelet into evidence. App. 263. Trial counsel also testified that he interviewed Petitioner's aunts, but believed that they would not make good alibi witnesses. App. 264. He further testified that because he did not think the aunts' testimony would be helpful and because Petitioner said he did not want to get them involved, he decided to rely on Petitioner's brother as an alibi witness. App. 265-66.
On July 12, 2011, the PCR court issued an order dismissing Petitioner's PCR application. App. 273-78. The PCR court issued the following findings of fact and conclusions of law:
This Court has had the opportunity to review the record in its entirety and has heard the testimony and arguments presented at the PCR hearing. This Court has further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon their credibility. This Court has weighed the testimony accordingly.
Set forth below are the relevant findings of fact and conclusions of law as required by S.C. Code Ann. § 17-27-80 (2003).
Ineffective Assistance of Counsel
The Applicant alleges he received ineffective assistance of counsel. In a PCR action, " [t]he burden of proof is on the applicant to prove his allegations by a preponderance of the evidence, " Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002).
For an applicant to be granted PCR as a result of ineffective assistance of counsel, he must show both; (1) that his counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) that he was prejudiced by his counsel's ineffective performance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006). In order to prove prejudice, an applicant must show " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cherry v. State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989). " A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).
The Applicant testified that trial counsel failed to object to the sole physical evidence -- a bracelet -- in this case. Applicant stated trial counsel failed to argue that no forensic evidence placed him at the scene. Applicant further stated he told trial counsel about alibi witnesses -- his aunts Joyce Sanders, Selena Slater, and Valerie Johnson -- but they were not at his trial.
Trial counsel testified the bracelet was taken from the Applicant at some point -- either when he was arrested on the street or booked at the jail. Trial counsel testified the State, however, did not produce the bracelet at trial (because it had been returned to the victim) and that he addressed this in closing argument. Trial counsel testified there was no basis to have objected to testimony about the bracelet, and confirmed there was no forensic evidence in this case. Trial counsel stated it was not beneficial to stress the lack of such evidence, as the jury knew none was available. With regard to a potential alibi for Applicant, trial counsel stated he spoke to two (2) of the Applicant's aunts and three (3) other individuals; however, the aunts could not give any information about an alibi, nor could any other witness, and counsel so advised Applicant. Trial counsel stated the aunts were illiterate and would not make good witnesses, the Applicant agreed with this analysis at the time of trial, and ultimately did not want to get his aunts involved in the trial.
This Court finds the Applicant's testimony is not credible as to his allegations of ineffective assistance, while also finding trial counsel's testimony is credible. This Court further finds trial counsel adequately conferred with Applicant, conducted a proper investigation, and was thoroughly competent in his representation.
This Court finds Applicant has failed to meet his burden of proving trial counsel should have objected to the lack of evidence in this case. Trial counsel testified there was no basis to object to trial testimony about the bracelet. Trial counsel did, however, argue in his closing statement that the State failed to produce the bracelet as evidence. (Trial transcript, p. 191). Trial counsel also argued in his closing statement that there was no physical evidence of any kind in this case. (Trial transcript, p.191). This Court agrees with trial counsel's testimony that the jury was well aware of the lack of physical evidence in this case. This Court finds that Applicant has failed to articulate what else trial counsel should have argued in order to make this point.
This Court finds Applicant also failed to meet his burden of proving trial counsel should have had his alibi witnesses testify at trial. This Court notes trial counsel testified he spoke to several individuals, including the Applicant's aunts, and concluded they could not provide adequate alibi testimony. Regardless, as these alleged witnesses did not testify at the PCR evidentiary hearing, any discussion regarding what they would have testified about at trial is purely speculative. See Bannister v. State, 333 S.C. 298, 303, 509 S.E.2d 807, 809 (1998) (the South Carolina Supreme Court " has repeatedly held a PCR applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to establish prejudice from the witness' failure to testify at trial.") (emphasis in original).
Accordingly, this Court finds Applicant has failed to prove the first prong of the Strickland test -- that trial counsel failed to render reasonably effective assistance under prevailing professional norms. Applicant failed to present specific and compelling evidence that trial counsel committed either errors or omissions in his representation of Applicant. This Court also finds Applicant has failed to prove the second prong of Strickland -- that he was prejudiced by trial counsel's performance. This Court concludes Applicant has not met his burden of proving counsel failed to render reasonably effective assistance. See Frasier v. State, 351 S.C. at 389, 570 S.E.2d at 174.
All Other Allegations
As to any and all allegations that were raised in the application or at the hearing in this matter and not specifically addressed in this Order, including allegations as to appellate counsel, this Court finds Applicant failed to present any evidence regarding such allegations. Accordingly, this Court finds Applicant waived such allegations and failed to meet his burden of proof regarding them. Therefore, they are hereby denied and dismissed.
Based on all the foregoing, this Court finds and concludes the Applicant has not established any constitutional violations or deprivations before, during, or after his trial and sentencing proceedings. Counsel was not deficient and Applicant was not prejudiced by counsel's representation. Therefore, this PCR application must be denied and dismissed, with prejudice.
A petition for writ of certiorari seeking review of the PCR court's final judgment was submitted on Petitioner's behalf to the South Carolina Supreme Court on or about February 10, 2012. ECF No. 43-7. South Carolina Appellate Defender Lanelle Cantey Durant filed the petition as a " Johnson Petition" and requested to be relieved as counsel for Petitioner. Id. at 9. The petition for writ of certiorari raised the following issue quoted verbatim:
Did the PCR court err in failing to find trial counsel ineffective for not objecting to the testimony of Deputy Jeblonski Green that he pulled a bracelet belonging to the victim of the burglary from the pocket of Hunter when the state did not produce the bracelet and there was no forensic evidence against Petitioner?
Id. at 3.
On February 13, 2012, the South Carolina Supreme Court informed Petitioner of the filing of the Johnson petition and told him that he could submit a pro se response to the petition. ECF No. 43-8. Petitioner filed a pro se brief on April 2, 2012, raising the following points, again quoted verbatim:
Did the PCR Court err in failing to find trial counsel ineffective for not objecting to the testimony of Deputy Jeblonski Green regarding the only circumstantial evidence that was never logged in as ...