United States District Court, D. South Carolina
Bryan J Ladner, Petitioner, Pro se, Enoree, SC.
For John R Pate, Warden of Allendale Correctional Inst., Respondent: Donald John Zelenka, SC Attorney General's Office, Columbia, SC.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Petitioner Bryan Ladner (" Petitioner") is a state prisoner who filed this pro se 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)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 34, 35. On July 29, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 36. On October 2, 2014, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment after receiving a 30-day filing extension. ECF No. 33. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 35, be granted.
Petitioner is currently incarcerated in the South Carolina Department of Corrections (" SCDC"). ECF No. 1 at 1. In 2004, Petitioner was indicted at the January term of the Berkeley County Grand Jury for first-degree Criminal Sexual Conduct (" CSC") with a Minor (2004-GS-08-0015). App. 736. Public Defenders Patricia A. Kennedy and Keshia V. White represented Petitioner in a jury trial that convened from December 13-16, 2004, and Assistant Solicitor Kristi Lea Harrington represented the State. App. 3. Petitioner was tried before the Honorable Daniel F. Pieper. Id. After the trial, the jury found Petitioner guilty as indicted, and Judge Pieper sentenced Petitioner to fourteen years imprisonment for the conviction. App. 737.
Assistant Appellate Defender Aileen P. Clare represented Petitioner on direct appeal. ECF No. 34-1. In his appellate brief, Petitioner raised the following issues:
1. Did the trial court abuse its discretion and violate appellant's confrontation and due-process rights by admitting into evidence the hearsay accusation of the two-year-old alleged victim who was incompetent to testify?
a. Was the statement testimonial in nature, and therefore inadmissible under Crawford v. Washington, because appellant had no prior opportunity for cross-examination?
b. Was the statement inadmissible, even if not testimonial under Crawford v. Washington, because it was not an excited utterance and because the witness' demonstrable mental incoherence made it unreliable in any event?
2. Did the lower court err by denying appellant's motion for a directed verdict?
Id. at 5. Assistant Attorney General Shawn L. Reeves filed a brief on behalf of the State. ECF No. 34-2. The South Carolina Supreme Court affirmed Petitioner's conviction and sentence in a published opinion filed April 23, 2007. ECF No. 34-3. There, the court found the admission of victim's hearsay statement did not violate Crawford because it was a nontestimonial statement. Id. at 11. Additionally, the supreme court found that " it was well within the trial court discretion to admit the victim's statements under the excited utterance exception to the hearsay rule." Id. at 16. Finally, the supreme court found the trial court correctly denied Petitioner's directed verdict motion. Id. at 16-17. On May 9, 2007, the South Carolina Supreme Court issued a Remittitur. ECF No. 34-4.
II. Procedural History
Petitioner filed an application for Post-Conviction Relief (" PCR") on February 26, 2008 (2008-CP-08-602). App. 808-815. Petitioner asserted the following allegations, recited verbatim, regarding his claims:
a) Ineffective assistance of trial counsel-6th Amendment- counsel failed to effectively prepare for my trial and represent me at trial.
b) Ineffective assistance of appellate counsel-14th Amendment-Appellate counsel failed adequately perfect my appeal and be prepared for and present cognizable arguments to the Court of Appeals during oral arguments.
c) Violation of Brady v. Maryland- 14th Amendment-The State failed to disclose the statements of two witnesses. These statements were material and exculpatory.
d) Violation of Due process under the 6th and 14th Amendments.
e) The sentence is illegal under Blakely v. Washington where it involves a statutory scheme that exposes the Petitioner to a potentially enhanced incarcerative sentence that was not decided by a jury nor waived by Applicant.
App. 810-11. Matthew Friedman filed a Return on behalf of the State. App. 816-822. A PCR hearing convened on January 24, 2011, before the Honorable Roger M. Young. App. 823-874. Petitioner was present and represented by Charles T. Brooks, Esq., and Matthew J. Friedman, Esq., appeared on behalf of the State. Id. During the hearing, Petitioner maintained his trial counsel was ineffective in that counsel:
a) Failed to effectively prepare for trial and represent Applicant at trial.
b) Failed to object to hearsay testimony of the victim that came in under excited utterance.
c) Failed to raise evidence of victim's habit of saying one thing then saying the opposite.
d) Failed to raise the timeline of events in that Applicant only had a five-minute window to commit the crime.
e) Failed to have a medical expert to compare victim's injuries with Applicant's written statements to expose discrepancies.
f) Stipulated that there was no semen or hair found where the SLED report indicated that there was a hair found that did not belong to Applicant.
g) Failed to object to victim's competency.
h) Failed to object to prosecutor's decision to call for competency hearing.
i) Failed to object to Dr. Staples' hearsay statement.
j) Allowed chaplain for Berkeley County to serve as a juror.
k) Did not call Applicant to testify at Jackson v. Denno hearing.
App. 876 (PCR court's Order of Dismissal finding that Petitioner presented these ineffective assistance claims to the court for review). In an Order filed March 3, 2011, the PCR court denied Petitioner's PCR Application in full, making 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 his or her 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).
Applicant testified that counsel failed to object to hearsay when the victim's statement was admitted as an excited utterance. He contended that it was not an excited utterance because it was not made at the time of the incident. Applicant testified that counsel never touched on the fact that the victim had a habit of saying one thing and then saying the opposite. He asserted that counsel did not address the timeline of events, specifically that the Applicant could not have caused this much damage to the victim within a five-minute window of time. Applicant testified that two other people-Ronnie Atkins and Mary Jackson-were at the house that night and gave statements. He also contended that [redaction] was trick or treating alone with the victim earlier in the night. Applicant asserted that counsel was ineffective for stipulating that no semen or hair was found where the SLED report indicated that there was a hair found, that did not belong to Applicant.
Applicant testified that counsel failed to object to the victim's competency and to the prosecutor's decision to call for a competency hearing. He asserted that counsel was ineffective for failing to call him as a witness at the Jackson v. Denno hearing. He also testified that counsel failed to object to hearsay testimony from Dr. Staples in the emergency room when he testified that the victim named Applicant as the person who touched her. Applicant contended that counsel was ineffective for failing to retain a medical expert to compare the victim's injuries with Applicant's written statement to expose discrepancies. Finally, Applicant testified that counsel was ineffective for allowing the chaplain for Berkeley County to serve as a juror.
Joanna Sweatman, Applicant's fiancé e, testified that the victim had a habit of saying one thing then saying the opposite. She testified that she told counsel about this fact.
Trial counsel testified that she did not discuss the victim's habit of saying something and then saying the opposite because the more important issues were that the victim was only with Applicant for five minutes, the victim was dressed in a dress and tights and a pull-up, the tights were still intact with no holes after she was with Applicant, and victim was seated in the back seat while Applicant drove. She asserted that the doctor could not tell if the victim's injuries were caused by object or penile penetration. She contended that the victim did not have any injuries the preceding day. She testified that five or six other people had more access to the victim than Applicant in the 24-36 hour period before the injuries were discovered, including [Redaction] and [Minor]. Counsel testified that Minor was unavailable for subpoena during trial because he was in Tennessee. She did not recall seeing statements from Ronnie Atkins or Mary Jackson. Counsel testified that she should have objected to the victim being " paraded" in the courtroom in a dress during the trial, although she admitted that there was no reason that the victim should not be allowed to attend the trial.
Counsel testified that the presence of a hair in the SLED report was not important because of the nature of the injuries. She contended that she made a mistake in failing to call Applicant during the Jackson v. Denno hearing. She asserted that she thought there was a valid Crawford issue, although the appellate court disagreed with her. With respect to the juror who was a chaplain for Berkeley County, Counsel testified that the court asked him if he could be fair and impartial.
Ineffective Assistance of Counsel
Applicant alleges that he received ineffective assistance of counsel. In a post-conviction relief action, the applicant has the burden of proving the allegations in the application. Rule 71.1(e), SCRCP; Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where ineffective assistance of counsel is alleged as a ground for relief, the applicant must prove that " counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just-result." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
Butler, 286 S.C. 441, 334 S.E.2d 813.
The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. The courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The applicant must overcome this presumption in order to receive relief.
Cherry, 300 S.C. 115, 386 S.E.2d 624.
Courts use a two-pronged test to evaluate allegations of ineffective assistance of counsel. First, the applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its " reasonableness under professional norms." Id. at 625 ( citing Strickland,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674). Second, counsel's deficient performance must have prejudiced the applicant such that " there is a reasonable probability that, but for counsel's unprofessional errors the result of the proceeding would have been different." Id. at 625. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997).
This Court finds that counsel is a trial practitioner who has extensive experience in the trial of serious offenses. Counsel conferred with the Applicant on numerous occasions. During conferences with the Applicant, counsel discussed the pending charges, the elements of the charges and what the State was required to prove, Applicant's version of the facts, Applicant's constitutional rights, the possible punishments, and possible defenses or lack thereof.
Regarding the Applicant's claims of ineffective assistance of counsel, this Court finds the Applicant has failed to meet his burden of proof. This Court finds that Applicant's attorney demonstrated the normal degree of skill, knowledge, professional judgment, and representation that are expected of an attorney who practices criminal law in South Carolina. State v. Pendergrass, 270 S.C. 1, 239 S.E.2d 750 (1977);
Strickland, 466 U.S. at 668; Butler, 286 S.C. 441, 334 S.E.2d 813. This Court further finds counsel adequately conferred with the Applicant, conducted a proper investigation, adequately prepared for trial, ...