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Bolton v. Warden, McCormick Correctional Institution

United States District Court, D. South Carolina, Florence Division

December 18, 2015

THURSTON M. BOLTON, Petitioner,
v.
WARDEN, McCORMICK CORRECTIONAL INSTITUTION, Respondent.

REPORT AND RECOMMENDATION

THOMAS E. ROGERS, III, Magistrate Judge.

Petitioner, Thurston M.Bolten (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254[1] on December 30, 2014. Respondent filed a motion for summary judgment on May 21, 2015, along with a return and memorandum. (Docs. #18 and #19). The undersigned issued an order filed May 22, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #20). Petitioner filed a response on June 22, 2015. (Doc. #23).

PROCEDURAL HISTORY

The procedural history as set forth by the Respondent has not been seriously disputed by the Petitioner in his response. Therefore, the undersigned will set out the undisputed procedural history, in part, as set forth by the Respondent.

Petitioner is currently confined at the MacDougall Correctional Institution in the South Carolina Department of Corrections. Petitioner was indicted by the Charleston County Grand Jury in June 2008, for criminal sexual conduct (CSC) in the first degree and kidnapping. Petitioner was represented by W. Ted Smith, Esquire, sitting first chair, and Mary Ford, Esquire, sitting second chair. Petitioner proceeded to trial by jury before the Honorable R. Markley Dennis, Jr., Circuit Court Judge on August 31-September 1, 2009. Petitioner was found guilty of kidnapping but not CSC in the first degree, as charged. Judge Dennis sentenced Petitioner to twenty years for kidnapping. (App. 1-326; 480).

Direct Appeal

Petitioner filed and served a Notice of Appeal. Assistant Appellate Defender Elizabeth A. Franklin-Best represented him on appeal. However, on June 23, 2010, Ms. Franklin-Best submitted a June 18, 2010, affidavit of Petitioner, in which he indicated that he wished to voluntarily withdraw his appeal and asked the Court to dismiss the appeal. On June 24, 2010, the South Carolina Court of Appeals filed an Order of Dismissal, dismissing his appeal. It sent the remittitur to the Charleston County Clerk of Court on July 14, 2010.

PCR

On August 9, 2010, Petitioner filed an Application for Post-Conviction Relief (PCR) (2010-CP-10-6416), asserting the following claims:

1. Ineffective assistance of trial counsel in that counsel:

a. Failed to conduct a proper pre-trial investigation (i.e., subpoena witnesses, introduce telephone records, produce and show the blue towel found in Applicant's car with no positive test results).
b. Failed to concur with Applicant when Applicant requested twice formally that counsel be relieved from the representation of Applicant.
c. Failed to carry out the objective and directives of Applicant (i.e., failed to properly file speedy trial motion, failed to professionally and competently represent Applicant).
d. Failed to properly introduce accuser's clothes into evidence for jury consideration.
e. Failed to introduce evidence of accuser stating that oral sex occurred between accuser and Applicant.
f. Failed to object to solicitor's misconduct (i.e., Assistant Solicitor Peter McCoy states in closing argument that Applicant rips accuser's clothes off. Assistant Solicitor Adam Young states that accuser runs out at 5:00 PM).
g. Failed to object to state witness Michelle Emerson's statement giving the wrong Time when she stated that it was 6:00 when she went to the store on the date of this incident.
h. Failed to object to the jury returning a legally inconsistent verdict.
i. Counsel's statement to the jury that he cannot explain the reasons that accuser was bringing these false allegations is unfounded because Applicant provided counsel with the reasons.
j. Failed to request a lesser-included offense in regard to the kidnapping indictment.

(App. 331-52).

The State filed its Return on March 29, 2011. (App. 404-07).

An evidentiary hearing in this action was held on September 14, 2011, before the Honorable Deadra L. Jefferson at the Charleston County Courthouse. Petitioner was present and was represented by David M. Holton, Esquire. The State was represented by Assistant Attorney General Matthew J. Friedman. Petitioner testified on his own behalf and trial counsel, Mr. Smith, testified. On November 3, 2011, the PCR Court filed its Order of Dismissal.

PCR Appeal

Petitioner timely served and filed a Notice of Appeal. On appeal, Petitioner was represented by Breen Richard Stevens, Assistant Appellate Defender. Petitioner's appeal to the denial of relief from the PCR Court was perfected with the filing of a Johnson Petition for Writ of Certiorari. The only issue raised in the Johnson Petition, was as follows:

Whether the PCR court erred in finding Counsel's performance was not deficient where Counsel failed to object to the prosecution's comment in closing argument that the Complaining Witness' clothes were ripped off, yet where there was no evidence that the clothes were ripped?

Petitioner filed a pro se response to the Johnson petition dated October 19, 2012, in which he presented the following issues:

1. The PCR Court did err in finding trial counsel's performance was not deficient where counsel failed to properly cross-examine the complaining witness about a prior inconsistent statement that she and the Petitioner engaged in oral sex.
2. The PCR Court did err in finding trial counsel's performance was not deficient in counsel's failure to provide a defense for Petitioner's kidnapping indictment.
3. The PCR Court did err in finding trial counsel's performance was not deficient in counsel [employing] [an] invalid trial strategy.

The South Carolina Supreme Court filed an order denying certiorari and granting counsel's petition to be relieved on May 22, 2014. It sent the remittitur to the Charleston County Clerk of Court on June 9, 2014.

HABEAS ALLEGATIONS

Petitioner raised the following allegations in his petition, quoted verbatim:[2]

GROUND ONE: Ineffective Assistance of Trial counsel THE LOWER COURTS ERRED IN FINDING COUNSEL'S PERFORMANCE WAS NOT DEFICIENT WHERE COUNSEL FAILED TO PROPERLY CROSS EXAMINE THE COMPLAINING WITNESS ABOUT A PRIOR INCONSISTENT STATEMENT THAT SHE AND THE PETITIONER ENGAGED IN ORAL SEX.
GROUND TWO: THE LOWER COURTS ERRED IN FINDING COUNSEL'S PERFORMANCE WAS NOT DEFICIENT IN COUNSEL'S FAILURE TO PROVIDE A DEFENSE FOR PETITIONER'S KIDNAPPING INDICTMENT
GROUND THREE: THE LOWER COURTS ERRED IN FINDING COUNSEL'S PERFORMANCE WAS NOT DEFICIENT WHERE COUNSEL FAILED TO OBJECT TO THE PROSECUTION'S COMMENT IN CLOSING ARGUMENT THAT THE COMPLAINING WITNESS CLOTHES WERE RIPPED OFF, YET WHERE THERE WAS NO EVIDENCE THAT THE CLOTHES WERE RIPPED.
GROUND FOUR: THE LOWER COURTS ERRED IN FINDING COUNSEL'S PERFORMANCE WAS NOT DEFICIENT IN COUNSEL ...

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