United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
KEVIN F. McDONALD, Magistrate Judge.
The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2254.
Pursuant to the provisions of Title 28, United States Code, Section 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.
The petitioner is currently incarcerated at the McCormick Correctional Institution of the South Carolina Department of Corrections. The petitioner was indicted by the Richland County Grand Jury in December 2003 for murder (2003-GS-40-04594) (App. 880-81). On October 18-20, 2004, the petitioner was tried by jury before the Honorable James R. Barber (App. 1-759, 882). The petitioner was represented by public defenders Fielding Pringle and Deborah Ahrens at trial (App. 1). The jury found the petitioner guilty of the lesser-included offense of voluntary manslaughter (App. 746). On October 20, 2004, Judge Barber sentenced the petitioner to thirty years in prison (App. 746-58, 882).
On April 12, 2001, at about 10:00 p.m., the petitioner shot and killed a rival crack dealer, Patrick Bryant ("the victim"), at the residence of Leonta Capers in Richland County in front of several witnesses. Mr. Bryant's cousin, Travis Johnson, testified at the petitioner's trial that he, the victim, and Sherrema Chitty, were all sitting in the living room of the house where the petitioner dealt drugs (App. 206-07, 209). The petitioner came into the living room from a back bedroom, approached the victim, and asked him to return the sweater that the victim was sitting on. The petitioner began arguing with the victim over a particular seat in the living room (App. 213, 347). The victim did not respond to the petitioner but got up and left the room. The victim gave the petitioner the sweater before leaving the room with Johnson (App. 213-16). As the two men exited the house, Johnson testified that he heard shots fired and immediately hit the ground (App. 218). Johnson "got right up after the shots" and "saw the [petitioner] running" carrying a gun (App. 218-19). Johnson testified that neither he (Johnson) nor the victim had a weapon that night (App. 223)
Chitty also testified at the petitioner's trial and stated that she had seen the petitioner with a gun prior to the night of the shooting (App. 352). On the night of the shooting, Chitty said that the victim told her he would talk to her later as he left the house with Johnson. She testified that the petitioner followed the victim and "pulled the gun out and he started shooting" at the victim as he was walking away (App. 348, 349). Additionally, Leonta Capers, who was in her bedroom at the time, testified "I didn't pay attention to the first shot because it sounded like a book falling on the floor.... Then my niece stated screaming, "Sherrema. He shot Pat.... "(App. 268).
Antonio Clemens, Ms. Capers' fiance, arrived at the Capers house as the shooting took place. He testified that he saw two men walk out of the house and saw two shots fired. He could not identify the men exiting the house or the man shooting the gun (App. 424-25). Richland County Sheriff's deputy Dale L. Jones, Jr., responded to the scene shortly after the shooting (App. 186). He testified that no weapon was found around the victim (App. 191).
On October 25, 2004, the petitioner filed a timely notice of appeal (doc. 15-5). On April 18, 2006, Joseph L. Savitz, III, Chief Attorney with the South Carolina Office of Appellate Defense, filed a final Anders brief pursuant to Anders v. California, 386 U.S. 738 (1967) (App. 761-66). Appellate counsel raised the following issue in the direct appeal:
The judge erred by preventing defense counsel from crossexamining a key State's witness, who was an admitted crack addict, about the effects of crack cocaine on the user's perceptions and behavior, since this expert testimony would have been relevant to appellant's claim of self-defense.
(App. 764). Appellate counsel also submitted a request to be relieved as counsel because "in his opinion, appellant's appeal [was] without legal merit sufficient to warrant a new trial" (App. 767).
On April 19, 2006, the Clerk of the South Carolina Court of Appeals advised the petitioner that he could "file with this Court a pro se, [sic] brief addressing any issues you believe the Court should consider in this appeal." (doc. 15-7). However, the petitioner did not file a pro se brief.
In an unpublished opinion filed May 29, 2007, the South Carolina Court of Appeals dismissed the petitioner's direct appeal (App. 770-71). The court also granted appellate counsel's motion to be relieved as counsel (App. 771). On June 14, 2007, the court issued the remittitur (App. 772).
On February 1, 2008, the petitioner filed an application for post-conviction relief ("PCR") asserting that he received ineffective assistance of counsel at his trial (App. 773-80). The State made its return on January 6, 2009 (App. 781-86). On January 12, 2009, Jeremy A. Thompson, the petitioner's PCR counsel, filed an amended PCR application on the petitioner's behalf, raising the following allegations of ineffective assistance of counsel:
1) Defense counsel was ineffective for requesting a jury charge on the lesser-included offense of voluntary manslaughter;
2) Defense counsel was ineffective for failing to object to the State's request to charge the lesser-included offense of voluntary manslaughter;
3) Defense counsel was ineffective for requesting a jury charge on transferred intent for the lesser-included offense of voluntary manslaughter;
4) Defense counsel was ineffective for failing to request a jury charge on the lesser-included offense of involuntary manslaughter;
5) Defense counsel was ineffective for failing to request a jury charge that the doctrine of transferred intent is also applicable for someone acting in self-defense;
6) Defense counsel was ineffective for failing to object to a jury charge which stated that if the jury found that the Applicant intentionally tried to kill his intended victim but instead hit an unintended target, then the jury had to find him guilty of murder or voluntary manslaughter;
7) Defense counsel was ineffective for failing to call witnesses who could have substantiated the Applicant's defense at trial;
8) Defense counsel was ineffective for failing to request a jury charge on the doctrine that lawful guests have no duty to retreat.
An evidentiary hearing was held before the Honorable Alison Renee Lee on January 14, 2009, at which time the petitioner was present and represented by Thompson (App. 790-842). In an order on filed March 29, 2012, Judge Lee denied the application and dismissed the petitioner's PCR application with prejudice (App. 869-79).
On April 16, 2012, the petitioner appealed the PCR court's decision (doc. 15-8). On December 27, 2012, Breen Richard Stevens, an Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a petition for writ of certiorari raising the following issues:
I. The PCR court reversibly erred by finding counsel's performance was not deficient for requesting a jury instruction on the lesser-included offense of voluntary manslaughter under a theory of transferred intent where the person shot did not pull a gun on Petitioner, and where the jury found Petitioner guilty of voluntary manslaughter.
II. The PCR court reversibly erred by finding counsel's performance was not deficient for failing to request a jury instruction on the lesser-included offense of involuntary manslaughter where Petitioner was armed in self-defense, where Petitioner testified that he panicked and "just started shooting trying to... get out of the house, " and where the jury found Petitioner guilty of voluntary manslaughter rather than murder.
III. The PCR court reversibly erred by finding counsel's performance was not deficient for failing to request a jury instruction on transferred intent in the context of self-defense.
The State filed its return to the petition for writ of certiorari on May 9, 2013 (doc. 15-10). On June 18, 2014, the South Carolina Court of Appeals denied the petition (doc. 15-11). The remittitur was issued on July 7, 2014 (doc. 15-12).
On July 2, 2014, the petitioner filed his § 2254 petition (doc. 1). On September 25, 2014, the respondent filed a motion for summary judgment (doc. 14). By order filed September 25, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), the petitioner was advised of the summary judgment dismissal procedure and the possible consequences if he failed to adequately respond ...