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Evans v. Warden Cartledge, McCormick Ci

United States District Court, D. South Carolina

January 16, 2015

Stacy L. Evans, Petitioner,
v.
Warden Cartledge, McCormick CI, Respondent.

REPORT AND RECOMMENDATION

PAIGE J. GOSSETT, Magistrate Judge.

Petitioner Stacy L. Evans, a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 29.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Evans was advised of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 30.) Evans filed a response in opposition. (ECF No. 41.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondent's motion for summary judgment should be granted and Evans's Petition denied.

BACKGROUND

Evans was indicted in December 2008 in Florence County for kidnapping and three counts of criminal sexual conduct in the first degree (08-GS-21-1827). (App. at 553-55, ECF No. 28-5 at 55-57.) Evans was represented by Jack W. Lawson, Jr., Esquire, and on December 8-10, 2008 was tried before a jury and found guilty of kidnapping and one charge of criminal sexual conduct ("CSC") in the first degree. (App. at 419, ECF No. 28-4 at 21.) The circuit court sentenced Evans to life imprisonment without the possibility of parole for each conviction. (App. at 428-29, ECF No. 28-4 at 30-31.)

Evans timely appealed and was represented by Lanelle C. Durant, Esquire, Assistant Appellate Defender, who filed an Anders[1] brief on Evans's behalf that presented the following question:

Did the trial court err in sentencing appellant to life without parole (LWOP) when the state had nol prossed the original indictment on which written notice that the state was seeking LWOP was provided to appellant and the state had not served notice of LWOP on the second indictment which was the indictment upon which he was found guilty?

(App. at 430-39, ECF No. 28-4 at 32-41.) Evans did not file a pro se response to the Anders brief, but instead filed an affidavit on March 8, 2010 in which he waived his right to appeal. (ECF No. 28-7.) On March 12, 2010, the South Carolina Court of Appeals filed an order dismissing Evans's appeal. (App. at 443, ECF No. 28-4 at 45.) The remittitur was issued on March 30, 2010. (App. at 444, ECF No. 28-4 at 46.)

Evans filed a pro se application for post-conviction relief on April 29, 2010 ("2010 PCR") in which he raised the following claims: "ineffectiveness of counsel, failure to subpoena witness, conflict of interest, improper indictment, prosecutorial misconduct, clear error of court-by court's misadvise of Rule 609(B), State failed to proved every element of offense beyond reasonable doubt, lack of subject matter jurisdiction, malicious intent." (See Evans v. State of South Carolina, 10-CP-21-1258; App. at 445-69, ECF No. 28-4 at 47-71.) The State filed a return. (App. at 471-75, ECF No. 28-4 at 72-76.) Evans amended his application through counsel on November 1, 2010 and alleged that the court "lacked subject matter jurisdiction to impose two (2) life sentences under the Recidivist Statute § 17-25-45(A)(1)." (App. at 476-77, ECF No. 28-4 at 77-78.) On February 7, 2011, the PCR court held an evidentiary hearing at which Evans appeared and testified and was represented by Charles T. Brooks, III, Esquire. By order filed February 22, 2011, the PCR judge denied and dismissed with prejudice Evans's PCR application. (App. at 536-43, ECF No. 28-5 at 38-45.) On February 25, 2011, Evans filed a pro se motion to relieve counsel and motion to proceed pro se in which he asked the PCR court to reconsider its ruling denying his request to relieve counsel at his PCR hearing. (ECF No. 28-10.) The PCR Court issued an Order on March 23, 2011 denying Evans's motion. (ECF No. 28-13.) Counsel for Evans filed and served a notice of appeal on February 25, 2011. (ECF No. 28-11.) On March 9, 2011, Evans filed a pro se motion for reconsideration pursuant to Rule 59(e), asking the court to rule on approximately twelve additional issues. (App. at 544-45, ECF No. 28-5 at 46-47).

On appeal, Evans was represented by Dayne C. Phillips, Esquire, Assistant Appellate Defender, who filed a Johnson[2] petition for a writ of certiorari on Evans's behalf that presented the following question:

Did the PCR court err in finding that trial counsel provided effective assistance of counsel where trial counsel failed to conduct a reasonable investigation in preparation for Petitioner's trial by not finding and interviewing a witness that was critical to Petitioner's defense?

(ECF No. 28-15.) Evans filed a pro se response to the Johnson petition in which he raised fifteen issues. (ECF No. 28-16.) On August 22, 2013, the South Carolina Supreme Court issued an Order denying Evans's petition for a writ of certiorari. (ECF No. 28-17.) The remittitur was issued September 9, 2013. (ECF No. 28-18.) This action followed.

FEDERAL HABEAS ISSUES

Evans's federal Petition for a writ of habeas corpus, as amended, raises the following issues:

Ground One: Abuse of Discretion/conflict of interest by his PCR lawyer not helping Defendant raise his issue
Supporting Facts: During Defendant PCR hearing he made a time motion to relieve counsel for a conflict of interest for counsel failing to subpoena two witnesses James Langstone and Macy Ann Matthews to testify at PCR and at trial. PCR counsel refused to raise all available issues as requested by Defendant preserve for appellate. Court denied defendant of motion to relieve counsel. Denied defendant of is witnesses.
Ground Two: Did the lower court err in denying Defendant 59 (e) motion for a rehearing to raise all available issues that were on original PCR Supporting Facts: Petitioner filed a proper motion to relieve his PCR counsel after his denial of his PCR and a 59 (e) supplemental raising all available issues to preserve for appellate review. Petition claimed a conflict of interest an asserted his right to proceed "pro se" which was denied by the court with no explanation.
Ground Three: Abuse of discretion/14th Amendment the lower court was in violation of the 14th Amendment.
Supporting Facts: That the lower court failed to state specific finding of fact and conclusions of law on each issue raisd in PCR and thereof on 59 (e) motions and motion to relieve counsel in PCR in clear violation of the law. That the Supreme Court failed to remain to fully develop the factual record to preserve issues for appellate review denying him his one bite of the apple.
Ground Four: Ineffective assistance of counsel, counsel failed to object to indictment clear violation/14 Amendment
Supporting Facts: Trial counsel was ineffective for failing to object to the invalid indictment presented which changed the nature of the offense in violation of the defendant right to a fair trial while the original indictment was still valid constituting a muctiplicions indictment depriving the court of subject matter jurisdiction preventing service of the notice of life without parole.
Ground Five: Prosecutorial misconduct/improper bolstering with false evidence in violation of due process of law 14th Amendment
Supporting Facts: The state entered into evidence two photographs of a woman's face showing bruising on the left hand side of her face. [] The official police report wrote by Officer Summersette stated took 2 pictures of her right hand side of her face. Defendants alleged crime occurred in 2008.
Ground Six: Ineffective assistance of counsel/violation of 6th amendment/conflict of interest
Supporting Facts: Trial counsel was ineffective for failing to object to the state using this false evidence to bolster its case and failing to authenticate this pictures under Rule 902(4), Rule 1005, and Rule 1002 requirements of the originals knowing that the police report stated two pictures of right eye. The state produced pictures of the left eye with dates of 1-19-2005 that you could ...

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