United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES, Magistrate Judge.
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. Â§ 2254. This
matter is before the court pursuant to 28 U.S.C. Â§ 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].
carefully considered the parties' submissions and the
record in this case, the undersigned recommends that
Respondent's motion for summary judgment be granted.
Factual and Procedural Background
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.
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
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.
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.
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
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
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].
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].
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.
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.
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].
filed this federal petition for a writ of habeas corpus on
March 23, 2015. [ECF No. 1].
Federal Habeas Issues
asserts he is entitled to a writ of habeas corpus on the
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.
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 ...