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Cameron v. Warden of Broad River Correctional Institution

United States District Court, D. South Carolina

January 7, 2016

Ronald Francis Cameron, # 279627, Petitioner,
v.
Warden of Broad River Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, Magistrate Judge.

         Ronald Francis Cameron ("Petitioner") is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment and return. [ECF Nos. 21, 22]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by September 24, 2015. [ECF No. 23]. Petitioner failed to file a response, and the court issued an order on September 29, 2015, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to Respondent's motion by October 13, 2015. [ECF No. 26]. The court granted extensions to December 14, 2015. [ECF Nos. 30, 37]. Petitioner filed a response on December 15, 2015. [ECF No. 18].

         Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted.

         I. Factual and Procedural Background

         On April 25, 2008, Angela Cox returned home from work to find her side door open and glass and blood on the floor. [ECF No. 22-1 at 64-66]. Police investigators collected blood samples from the floor and took an inventory of the missing items which included a class ring. Id. at 66-67, 72-74, 104-108, 112-13. Upon learning that Larry Gainey had pawned Cox's class ring, id. at 113-115, police arrested him, and he stated he had purchased the ring from Petitioner. Id. at 82-83. Gainey noted that Petitioner's hand was bandaged in a towel and was bleeding when Petitioner sold him the ring. Id. at 82. Police located Petitioner, whose hands were cut and bleeding. Id. at 75, 116-17, 127. Petitioner's blood was tested and his DNA profile matched the DNA profile developed from the blood recovered from Cox's home. Id. at 162-63.

         Petitioner was indicted by the Darlington County grand jury during the October 2008 term of court for larceny less than $1, 000 ("petit larceny") (2008-GS-16-1314), and burglary in the first degree (2008-GS-16-1315). [ECF No. 22-1 at 275-78]. The state filed a motion for collection of suspect standards and on September 1, 2009, a Schmerber [1] hearing was held before the Honorable J. Michael Baxley, Circuit Court Judge. Id. at 3-14. Judge Baxley issued an order on September 2, 2009, directing Petitioner to give a blood and/or saliva sample to the state for comparison analysis. Id. at 281-82.

         Tonya Copeland-Little, Esq., represented Petitioner at a jury trial on September 21 and 23, 2009, before the Honorable Howard P. King, Circuit Court Judge. Id. at 15 et seq. The jury found Petitioner guilty as charged. Id. at 227-28. Judge King sentenced Petitioner to concurrent terms of 25 years for burglary in the first degree and 30 days for petit larceny. Id. at 237-38.

         Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals ("Court of Appeals"). On appeal, Petitioner was represented by M. Celia Robinson, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who filed an Anders [2] brief on March 21, 2011. [ECF No. 22-2]. Attorney Robinson raised the following issue:

The judge erred in granting the State's request for DNA swabs from appellant where the State had already obtained DNA standards from appellant so that the trial judge erred in failing to exclude the DNA test results where the blood standards tested were wrongfully taken from appellant in violation of his rights against unreasonable search and seizure.

Id. at 4. Attorney Robinson certified that the appeal was without merit and asked to be relieved as counsel. Id. at 11. Petitioner filed a pro se response to the Anders brief. [ECF No. 22-4].

         On May 2, 2012, the Court of Appeals filed an unpublished decision dismissing the appeal and granting counsel's request to withdraw. [ECF No. 22-5]. The remittitur was issued on May 18, 2012. [ECF No. 22-6].

         Petitioner filed an application for post-conviction relief ("PCR") on July 20, 2012, in which he alleged ineffective assistance of trial and appellate counsel and erroneous advice. [ECF No. 22-1 at 240-46]. A PCR evidentiary hearing was held before the Honorable R. Ferrell Cothran, Jr., Circuit Court Judge, on July 16, 2013, at which Petitioner and his PCR counsel, Parker E. Howle, Esq., appeared. Id. at 252-68]. On October 23, 2013, Judge Cothran filed an order of dismissal. Id. at 269-74.

         Petitioner appealed from the denial of PCR and was represented by Lara M. Caudy, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. [ECF No. 22-7]. Attorney Caudy filed a petition for writ of certiorari in the South Carolina Supreme Court on or about May 19, 2014, raising the following issue:

Whether Petitioner's Sixth and Fourteenth Amendment rights to the effective assistance of counsel were violated when trial counsel failed to properly challenge the state's motion to obtain a DNA standard from Petitioner at a Schmerber hearing and then later failed to preserve the issue for appeal when she did not object at trial to the admission of DNA evidence where the state took a buccal swab of Petitioner's saliva without his consent?

Id. at 3.

         The South Carolina Supreme Court denied the petition on December 10, 2014. [ECF No. 22-9]. The remittitur was issued on December 30, 2014. [ECF No. 22-10].

         Petitioner filed this federal petition for a writ of habeas corpus on March 23, 2015. [ECF No. 1].[3]

         III. Discussion

         A. Federal Habeas Issues

         Petitioner asserts he is entitled to a writ of habeas corpus on the following grounds:

Ground One: Ineffective Assistance of Council
Supporting Facts: On 4-26-08 an illegal DNA sample was taken from defendant. On 9-1-2009 the prosecution held a Schmerber hearing to obtain an order for DNA after realising mistake and violation of defendants rights. During hearing defendants attorney never informed court of this violation; never informed judge of previous sample. Or submitted copies of illegal test and results for court to assess. When defendant brought this before court judge stated he was unaware. Thus Ms. Little failed to preserve this for direct appeal. C-1 thru C-9 exhibits
Ground Two: Erroneous Advice
Supporting Facts: Defendants attorney advised him not to inform court of illegally obtained DNA. Also that she would request for a change of venue, she did not. She told defendant not to be concerned with Schmerber, she would argue exhibits C-32-C-38 illegality of DNA previously obtained. She did not. Clearly this is shown in transcript exhibit (1) Ms. Little claims under oath she did these things though in exhibits (2) & (3) filed 8-26-10 Line 12&13 C-23, C-28
Ground Three: Ineffective Assistance of Appellate Council
Supporting Facts: Appellate representative failed to examine illegal DNA from 4-26-08 failed to show discrepancy of trial court to move for dismissal based on such. Failing to preserve issue for appeal. Failed to bring forth facts of negligence in Schmerber hearing. Failed to show trial counsels failure to fight for change of venue. Failure of trial counsel to show fact of illegally obtained DNA before Judge Baxley at Schmerber hearing or during trial court. Ex. C-1 thru C-9 and C-23, C-28 and C-32-C-38.

         Ground Four: Subject Matter of Jurisdiction

Supporting Facts: By obtaining evidence illegally prosecution forfitted their right to prosecute. The State cannot break or violate the law in order to uphold the law. Then knowing the illegal result the state compounded the violation by seeking a lawful Schmerber authorization for the "tainted" evidence. Failing to inform court of tainted evidence and proceeding with the knowledge as if unaware of ...

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