United States District Court, D. South Carolina, Anderson/Greenwood Division
Jason O. Riley, a/k/a Jason Orlando Riley, Petitioner,
Leroy Cartledge, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 20.] Petitioner, proceeding pro se, is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on April 22, 2014. [Doc. 1.] On August 13, 2014, Respondent filed a motion for summary judgment and a return and memorandum to the Petition. [Docs. 19, 20.] On August 19, 2014, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 21.] On September 4, 2014, Petitioner filed a response in opposition [Doc. 25], and he filed an additional response in opposition on September 18, 2014 [Doc. 30].
Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted and the Petition be denied.
Petitioner is presently confined in the South Carolina Department of Corrections at McCormick Correctional Institution pursuant to orders of commitment of the Richland County Clerk of Court. [Doc. 1 at 1.] In December 2004, Petitioner was indicted for murder and armed robbery. [App. 945-50. On September 20, 2005, represented by Mary P. Miles ("Miles"), Petitioner proceeded to trial. [App. 1-789] On September 23, 2005, the jury returned a verdict of guilty on both charges. [App. 784-85.] Petitioner was sentenced to life imprisonment on the murder charge and 30 years imprisonment on the armed robbery charge. [App. 788.]
Petitioner appealed his conviction but subsequently withdrew the appeal. [Doc. 19-1.] On March 20, 2007, the South Carolina Court of Appeals dismissed Petitioner's appeal and issued remittitur. [Doc. 19-2.]
First PCR Application
Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on March 5, 2008. [App. 790-94.] Petitioner alleged he was being held in custody unlawfully based on the following grounds, quoted substantially verbatim:
(a) Due Process violation
(b) Ineffective assistance of counsel [App. 791.] In support of his grounds for relief, Petitioner provided the following allegations, quoted substantially verbatim:
(a) Prosecutorial Misconduct; and Brady violation
(b) Failure to object to prosecutor's misconduct; failure to object to perjured testimony
[App. 791.] The State filed a return on July 10, 2008. [App. 795-800.] Petitioner, through counsel Tommy A. Thomas ("Thomas"), amended his PCR application on November 19, 2010. [App. 804-05.] The amended PCR application raised the following allegations of ineffective assistance of counsel:
1. Counsel was ineffective for her failure to locate and subpoena, Tyrone Johnson, an eye witness to the crime. Mr. Johnson was able to give a description of the Assailant that did not match the Petitioner.
2. That Trial Counsel was ineffective for not timely filing Notice of alibi as required by the Rules of Civil Procedure. Due to the failure to timely file, Petitioner was denied the ability to assert alibi or use alibi witnesses.
3. That Trial Counsel was ineffective for not challenging the State objection to use and introduction of the deceased eye witness statement of Barbara Moss.
A hearing was held on December 7, 2010, and Petitioner was represented at the hearing by Thomas. [App. 806-927.] On February 11, 2011, the PCR court filed an order denying and dismissing the application with prejudice. [App. 928-40.] On February 25, 2011, Petitioner filed a motion to alter or amend the judgment [App. 941-42], which the PCR court denied on March 31, 2011 [App. 943-44]. A notice of appeal was timely filed and served.
On January 3, 2012, Susan B. Hackett ("Hackett") of the South Carolina Commission on Indigent Defense filed on Petitioner's behalf a Johnson petition for writ of certiorari in the Supreme Court of South Carolina. [Doc. 19-3.] The petition asserted the following as the sole issue presented:
Did appellate counsel provide ineffective assistance by failing to appeal the trial judge's erroneous ruling that the prosecutor had not violated the Rules of Criminal Procedure by failing to disclose cell phone tower logs prior to the start of trial where the uncontested evidence established that the prosecution intended to use the evidence in its case-in-chief?
[ Id. at 3.] At the same time she filed the Johnson petition, Hackett submitted a petition to be relieved as counsel. [ Id. at 12.] Petitioner filed a pro se petition raising the following issues, quoted substantially verbatim:
I. State prosecutors displayed misconduct by suborning witnesses Jeffrey McDaniels and Ricky Hagler to commit perjury by offering them plea deals to change material facts given on sworn affidavits.
II. State prosecutors committed misconduct by suppressing the revised editions of the previous statements made by Jeffrey McDaniel and Ricky Hagler.
III. State prosecutors committed misconduct by knowingly using perjured testimony to secure a conviction against Petitioner.
IV. State prosecutors violated Petitioner's Due Process rights by withholding exculpatory Verizon Wireless phone tower logs that were in its possession and intended to be used in its case-in-chief.
V. Trial counsel was grossly ineffective for not challenging the State's objection to the introduction of deceased eyewitness Barbara Moss' statement, properly reserving the issue for appellate review.
VI. Trial counsel erred by not objecting to prosecutorial subornation of perjury.
VII. Trial counsel was highly ineffective for not objecting to prosecutorial misconduct, where State prosecutors clearly violated Petitioner's Due Process Rights by suppressing the revised editions of prior statements given by Jeffrey McDaniel and Ricky Hagler.
VIII. Trial counsel violated Petitioner's Sixth Amendment right to effective assistance of counsel by not objecting to the impermissible solicitation of perjured testimony.
IX. Trial counsel prejudiced Petitioner by not objecting, accurately, to the State's withholding of exculpatory Verizon Wireless phone tower logs.
[Doc. 19-4 at 5-6.] The court denied the petition and granted counsel's request to withdraw on April 9, 2014 [Doc. 19-5] and remitted the matter to the lower court on April 25, 2014 [Doc. 19-6].
Second PCR Application
Petitioner, proceeding pro se, filed a second PCR application on April 12, 2011. [Doc. 19-13.] Petitioner alleged he was being held in custody unlawfully based on the following grounds, quoted substantially verbatim:
(a) Prosecutorial misconduct
(b) Ineffective assistance of counsel [ Id. at 3.] In support of his ground for relief, Petitioner provided the following allegation, quoted substantially verbatim:
(a) State's prosecutor's subornation of perjured testimony. See attachments.
(b) State's prosecutors admission of perjured testimony in his case-in-chief.
(c) Counsel's ineffectiveness for not properly challenging State's objection to hearsay testimony.
[ Id. ] Petitioner asserted that each of these claims were presented at the December 7, 2010, evidentiary hearing and were addressed in the PCR dismissal order; however, no specific findings of fact were expressed and a Rule 59(e) motion was filed and dismissed. [ Id. at 9.] As of the date Respondent filed its motion for summary judgment, the State had not yet made a return to the second PCR application. [ See Doc. 19 at 8.] Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on April 22, 2014. [Doc. 1.] Petitioner raises the following grounds for relief, quoted substantially verbatim, ...