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Jackson v. Bush

United States District Court, D. South Carolina

January 20, 2015

Damon Lemont Jackson, #210638, Petitioner,
v.
Dennis Bush, Warden of Lee Correctional Institution, Respondent

Damon Lemont Jackson, Petitioner, Pro se, Bishopville, SC.

For Dennis Bush, Warden of Lee Correctional Institution, Respondent: James Anthony Mabry, LEAD ATTORNEY, Donald John Zelenka, SC Attorney General's Office, Columbia, SC.

REPORT AND RECOMMENDATION

Shiva V. Hodges, United States Magistrate Judge.

Petitioner Damon Lemont Jackson is an inmate at the Lee Correctional Institution of the South Carolina Department of Corrections who filed this 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on the following motions: (1) Respondent's motion for summary judgment and return [ECF Nos. 28, 29]; and (2) Petitioner's motion for summary judgment [ECF No. 32]. The motions having been fully briefed [ECF No. 33], they are ripe for disposition.

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's motion for summary judgment and deny Petitioner's motion for summary judgment.

I. Factual Background

On November 10, 2003, Deborah Brown, a confidential informant working for the City of Columbia, South Carolina police department, was instructed by Officer Babin to take a cab to several apartment complexes in the area to see if she could purchase narcotics. [ECF No. 29-1 at 120-22, 126-32, 153-54, 177-80]. Ms. Brown was wearing surveillance equipment that recorded the video and audio of her interactions that day. Id. at 128-30, 155. When she arrived at the Hammond Village apartment complex, she approached Petitioner and asked him if he had any crack cocaine or marijuana. Id. at 153-58. She asked Petitioner to give her $20 worth of crack cocaine, and she gave Petitioner $20 and he gave her a piece of crack cocaine. Id. at 157-60, 162-63. After the exchange, Petitioner wrote his name and phone number on Ms. Brown's hand. Id. at 160. When Ms. Brown finished her final drug transaction of the day, she took a taxi and met with Officers Babin and Sheard. Id. at 168. Ms. Brown gave Officer Sheard the crack cocaine she purchased and provided him with a description of the individual from whom she bought the crack cocaine. Id. at 169. Plaintiff saw Petitioner again on December 18, 2003, and she talked with him for approximately one to three minutes. Id. at 164, 183. Petitioner wrote down his name and phone number on a card for Ms. Brown. Id. A few days later, Plaintiff was shown a six person line up to identify the person who sold her the crack cocaine on the November 10, 2003, video. Id. at 165-66. Plaintiff identified Petitioner from the lineup. Id. at 166.

II. Procedural Background

Petitioner was indicted by the Richland County Grand Jury during the May 2005 term of court for (1) distribution of crack cocaine within proximity of school/park (2005-GS-40-4373), and (2) distribution of crack cocaine 3rd offense or more (2005-GS-40-4374). [ECF No. 29-2 at 116-17, 119-20]. Petitioner was initially represented by Joshua Kendrick, Esq., but he requested permission to relieve counsel and to proceed pro se. [ECF No. 29-1 at 11]. The presiding Circuit Court Judge, Reginald I. Lloyd, granted Petitioner's motion to represent himself pro se on September 19, 2005. Id. at 11-19. Petitioner proceeded with a jury trial on September 19-20, 2005. Id. at 10 et seq . The jury convicted Petitioner as charged. [ECF No. 29-2 at 106]. Judge Lloyd sentenced Petitioner to consecutive terms of 25 years for distribution of crack cocaine and 12 years for distribution of crack cocaine within the proximity of a school. [ECF No. 29-2 at 113-14].

Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals (" Court of Appeals"). On appeal, Petitioner was represented by Aileen P. Clare, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who filed an Anders [1] brief on March 12, 2007, raising the following issue: " Did the lower court err by denying appellant's motion to suppress his in-court identification by a state informant, which was based on a suggestive pretrial procedure?" [ECF No. 29-2 at 126]. Attorney Clare certified that the appeal was without merit and asked to be relieved as counsel. Id. at 131. Petitioner filed a pro se response to the Anders brief, raising the following issues:

1) Did the state violate the Appellant's Fifth and Fourteenth Amendment right to Due Process of Law in delaying eighteen months before initiation of prosecution and failing to put the Appellant on adequate notice of the evidence against him when the state failed to disclose pertinent documents mandated for disclosure pursuant to Federal and South Carolina Wiretap Statute?
2) The Appellant challenges the admissibility of the Audio and Video recording as being made in violation of Title 1 of the Electronic Communication Privacy Act of 1986, codified at 18 U.S.C. § 2510-21 and the South Carolina Wiretap Statute § 17-30-10 (-) 145. Further, the Appellant moves for suppression of the unlawfully obtained evidence pursuant to the Title 1 Statutory Exclusionary Rule.
3) Did the lower Court error by denying Appellant the right to a last closing argument to the Jury when the Appellant called no witness or offered no evidence in his behalf to relinquish his substantial right to a last closing argument to the Jury?

[ECF No. 29-2 at 138] (errors in original).

On February 12, 2008, the Court of Appeals filed an unpublished decision dismissing the appeal and granting counsel's request to withdraw. [ECF No. 29-2 at 162-63]. The Court of Appeals denied Petitioner's pro se petitions for rehearing on April 18, 2008. [ECF No. 29-5 at 3-13]. Petitioner filed a pro se petition for writ of certiorari on May 28, 2008, raising the following issues:

I. Did the South Carolina Court of Appeals err in holding that the State did not violate the Petitioner's Fifth (5th) and Fourteenth (14th) Amendment rights to due process of law, when the prosecution delayed eighteen (18) months before initiating prosecution and failed to put the Petitioner on adequate notice of the evidence against him, when the prosecution failed to disclose pertinent documents mandated for disclosure pursuant to Title 1 of the Electronic Communication Privacy Act and South Carolina Wiretap statute?
II. Did the South Carolina Court of Appels err in holding that the audio and video recording were validly made in compliance with Title 1 of the Electronic Communication Privacy Act, South Carolina Wiretap Statute, and the evidence was admissible: Thus, denying the Petitioners motion for suppression pursuant to the Title 1 Statutory Exclusionary Rule?

[ECF No. 29-5 at 32] (errors in original). The South Carolina Supreme Court denied certiorari in an order filed December 4, 2008. [ECF No. 29-5 at 44]. The remittitur was issued on December 8, 2008. [ECF No. 29-5 at 45].

Petitioner filed an application for post-conviction relief (" PCR") on February 3, 2009, as amended July 15, 2009, and August 25, 2009, in which he alleged various grounds of ineffective assistance of trial and appellate counsel, equal protection violations, and due process violations. [ECF No. 29-2 at 166-200].

A PCR evidentiary hearing was held before the Honorable Clifton Newman, Circuit Court Judge, on April 14, 2010, at which Petitioner and his PCR counsel, Tommy Thomas, Esq., appeared. [ECF No. 29-3 at 14-93]. On August 30, 2010, Judge Newman issued an order of dismissal. Id. at 96-102; ECF No. 29-4 at 3-20]. Petitioner filed a motion for reconsideration on September 10, 2010, which Judge Newman denied on October 3, 2010. [ECF No. 29-4 at 21-38].

Petitioner appealed from the denial of PCR and was represented by Appellate Defender Breen Richard Stevens of the South Carolina Commission of Indigent Defense, Division of Appellate Defense. Attorney Stevens filed a Johnson petition for writ of certiorari in the South Carolina Supreme Court on October 5, 2011, and petitioned to be relieved as counsel. [ECF No. 29-8]. The petition raised the following issue: " Whether Petitioner was adequately warned of the dangers and disadvantages of proceeding pro se to constitute a knowing, intelligent, and voluntary waiver of his right to counsel ?" Id. at 3.

On October 31, 2011, Petitioner filed a pro se brief raising the following issues:

a) Did the PCR court err in finding that the return of Petitioner's indictments was not the product of a Sham Legal Process that failed to confer Subject Matter Jurisdiction upon the trial court, when the State failed to indict Petitioner with a legally established Grand Jury?
b) Did the PCR court err in finding that Petitioner's State and Federal right to Due Process of Law was not violated by the Sham Legal Process in ground (a) above, although the State Constitution mandates that a defendant has a right to demand that a legally established Grand Jury indict him?
c) Did the PCR court err in finding S.C. Code Ann § 44-53-375 (B), the statute Petitioner was convicted under, is not unconstitutionally vague regarding distribution offenses when the amount distributed is less than one gram?
d) Did the PCR court err in " failing to find" Petitioner's sentence for distribution within proximity of a school violates the Equal Protection of Law clause, being S.C. Code Ann § 44-53-445 ascribes a harsher penalty for crack cocaine than any other controlled substance within that statute?
e) Did the PCR court err in " finding" that Petitioner's sentence is not Cruel and Unusual, and his sentence is not grossly disproportionate to the offense committed?
f) Did the PCR court err in " failing to find" that Petitioner's offense for distribution of crack cocaine was unlawfully enhanced to a 3rd offense, in light of evidence that shows he should had been charged with a 2nd offense?
g) Whether Petitioner was adequately warned of the dangers and disadvantages of proceeding pro se to constitute a knowing, intelligent, and voluntary waiver of his right to counsel?
h) Did the PCR court err in finding the trial court did not commit a per se prejudicial violation when the trial judge unjustly had shackles placed on Petitioner's ankles and confined him to his chair, and/or because he was made to wear shackles and conduct his defense from his seat, his ability to represent hisself became substantially impaired and destroyed the jury's perception that he was representing himself?
i) Did the PCR court err in finding appellate counsel was not ineffective for failing to brief a viable claim on Direct Appeal alleging the trial court's denial of proffered testimony offered by Petitioner prejudiced the defense, when the proffered testimony was sufficiently established before the record, and it could be determined what the testimony was intended to show?

[ECF No. 29-9 at 4] (errors in original).

The Court of Appeals denied the petition on October 21, 2013, and granted counsel's request to withdraw. [ECF No. 29-10]. The remittitur was ...


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