United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
Petitioner Sylvester Anterrio Boone, 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) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 16.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Boone 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. 17.) Boone filed a response in opposition to the respondent's motion. (ECF No. 19.) 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 Boone's Petition denied.
Boone was indicted in February 2010 in Richland County for kidnapping, armed robbery, and two counts of assault with intent to kill (2010-GS-40-10499, -10500, -10501, -10502). Boone was represented by April Sampson, Esquire, and on May 28, 2010 pled guilty as charged. The circuit court sentenced Boone to twenty years' imprisonment for kidnapping and twenty years' imprisonment for armed robbery, both sentences to run concurrently, and seven years' imprisonment for each count of assault with intent to kill, both sentences to run concurrently to each other but consecutively to the twenty-year sentence, for a total aggregate sentence of twenty-seven years' imprisonment. (App. at 81, ECF No. 15-9 at 83.)
Boone filed a direct appeal, but his appeal was dismissed by the South Carolina Court of Appeals. Boone then filed an application for post-conviction relief ("PCR"). The state circuit court denied Boone's PCR application. Counsel for Boone petitioned the South Carolina Supreme Court via a Johnson petition for a writ of certiorari, which was denied. This action followed.
FEDERAL HABEAS ISSUE
Having exhausted his state remedies, Boone asserts the following issue in the instant petition for a writ of habeas corpus:
Ground One: Mr. Boone (petitioner) was denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution when plea counsel failed to present critical mitigating evidence during the sentencing phase of hearing.
(a) Supporting Facts: Plea counsel had available to her mitigating evidence that would have established and verified petitioner[']s extremely low level of intelligence, thus influencing the sentencing of petitioner. During the plea process counsel presented only two pieces of mitigating evidence: 1) the mother, 2) the father. Counsel did not inform the plea Judge of petitioner[']s extremely low IQ or his history of having special needs.
Petitioner was arrested at age seventeen (17) but was only functioning mentally on an elementary level. At post conviction documentary evidence was presented to show that the petitioner was mentally much "slower", also younger, and was clearly a "follower" of the codefendants.[*] Petitioner[']s mother testified at the PCR that plea counsel had informed her and the petitioner that the plea arrangement was for a ten (10) year deal. Plea counsel admitted at PCR that petitioner was a follower and much slower than his peers. Counsel also stated that she was not sure if she pointed out to the Judge that the petitioner had special needs.
The record shows that counsel did not present the mitigating evidence that would have highlighted petitioner[']s mental illness and competency issues. Counsel also admits that "it could have had an influence". Counsel intentionally chose not to allow the proper mitigating evidence to be presented during the sentencing proceeding. Available to counsel was good character witnesses from the petitioner[']s: pastor, multiple teachers, and many other credible witnesses from the community, along with his school records showing his special needs. Fourteen (14) of those witnesses were present at the PCR hearing and were ready to testify that their desire was to speak on behalf of the petitioner[']s impressionability, remorse, special needs. Counsel acknowledges that she was "surprised by the length of the sentence" and admits she had over ten (10) pieces of mitigating evidence, but she chose not to present that evidence to the court.
Counsel cannot be considered to have made an informed decision. Due to the fact that she never investigated or even spoke with the witnesses to know which piece of testimonial evidence would have had the most influential mitigating weight, counsel cannot be said to have made a reasonable strategic decision because she never investigated the information she would need in order to make an informed strategic choice .
The focus point in petitioner[']s claim is on the mitigating evidence that was available and should have presented to influence the sentencing of petitioner. Not only was this performance by counsel deficient but because of her negligence in unprofessional oversight these errors prejudiced the petitioner during the sentencing phase of the plea proceeding. Had counsel[']s performance not been deficient ...