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Murray v. Stevenson

United States District Court, D. South Carolina, Anderson/Greenwood Division

January 11, 2016

Donovan Murray, Plaintiff,
v.
Warden Stevenson, Defendant.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN, Magistrate Judge.

         This matter is before the Court on Respondent's motion for summary judgment. [Doc. 15.] Petitioner, proceeding pro se, is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 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.

         Petitioner filed this Petition for writ of habeas corpus on November 21, 2014.[1] [Doc. 1.] On April 1, 2015, Respondent filed a motion for summary judgment and a return and memorandum. [Docs. 15, 16.] On the same day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 17.] Petitioner filed a response in opposition on September 14, 2015. [Doc. 31.]

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

         BACKGROUND

         Petitioner is incarcerated in the Broad River Correctional Institution of the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Court for Charleston County. [Doc. 1 at 1.] Petitioner was indicted in March 2008 for possession with intent to distribute cocaine within proximity of a school; possession with intent to distribute cocaine, third offense; possession of a weapon during the commission of a violent crime; possession with intent to distribute cocaine base within proximity of a school; and trafficking in cocaine base, third offense. [App. 982-87[2]; Doc. 16 at 1-2.[3] On July 7-9, 2008, represented by Daniel Prenner[4] ("Prenner"), Petitioner proceeded to trial. [App. 1-805.] At the conclusion of the trial, the jury returned a verdict of guilty on the charges of possession with intent to distribute cocaine within proximity of a school and possession with intent to distribute cocaine, third offense; Petitioner was acquitted of the other charges. [App. 766-70.] Petitioner was sentenced to 10 years for the possession with intent to distribute cocaine within proximity of a school charge; 15 years for the possession with intent to distribute cocaine, third offense, charge; and five years of Petitioner's probation was revoked, all to run concurrent. [App. 789, 804; Docs. 1 at 1; 16 at 2.]

         Direct Appeal

         Petitioner appealed his conviction. M. Celia Robinson of the South Carolina Commission on Indigent Defense filed a brief on Petitioner's behalf, dated September 21, 2010, in the South Carolina Court of Appeals, raising the following issues:

1. Did the trial judge err in allowing the State to submit evidence of appellant's statements which were made in response to police interrogation but without appellant's first being warned under Miranda?
2. Did the trial judge err in admitting in evidence testimony regarding appellant's possession of prescription drugs without a prescription where such evidence was admitted in violation of Rules 403 and 404(b), SCRE and where the admission of this evidence served to unfairly prejudice appellant and to deprive him of a fair trial?

         [Doc. 16-8 at 4.] The South Carolina Court of Appeals affirmed the decision of the lower court in an unpublished opinion filed September 20, 2011. [Doc, 16-10.] Remittitur was issued on October 19, 2011. [Doc. 16-11.]

         PCR Application

         On November 8, 2011, Petitioner filed a pro se application for post-conviction relief ("PCR"), in which he alleged he was being held in custody unlawfully based on the following grounds:

(a) Ineffective Assistance of Counsel
(b) Structural Ineffective Assistance of Counsel
(c) Prosecutorial Misconduct

          [App. 810.] As supporting facts for his grounds, Petitioner attached a document to his PCR Application, quoted substantially verbatim:

A) Ineffective Assistance of Counsel is due to the fact that counsel failed to conduct a reasonable investigation of my case before the Plaintiff went to trial, and counsel failed to be an advocate for the Plaintiff by agreeing to a stipulation that prejudiced the Plaintiff. Counsel failed to explain the details of the stipulation. Counsel stipulated to chain of custody needing no further proof when the chain of custody was broken. Counsel helped the Prosecution enter tainted evidence. There is a reasonable probability that but for counsel's errors, the result of the trial could have been different due to the fact that it is undisputed that if there was a motion to su[press] the cocaine Aff[idavit] and the cocaine as evidence. The Plaintiff would not have been convicted of cocaine. Plaintiff would ask that sentence be vacated and evide[nce] su[pressed] with new Trial granted. Also on Direct Appeal Plaintiff was appointed counsel and counsel was Ineffective by not raising Plain Error issues and New trial in interest of justice. Plaintiff wanted to add more arguments to his counsel's final brief and could not get it amended cause counsel said there was no need to amend it. Plaintiff would ask that issues raised Pro se be Amended and able to be acknowledged, and sentence vacated with New Trial Granted.
B) Structural Ineffective Assistance of Counsel is due to the fact that counse[l] assisting the Prosecution in covering up evidence, in a credibility drug case, that crack was found in the p[re]scription pill bottle, that co-defendant claimed at trial, which would have completely undermined the Prosecutions case and witnesses' credibility, who was the only witness who allege[d] to see Plaintiff with drugs, constitute Structural Ineffective Assistance of Counsel where prejudice is presumed Plaintiff ask that sentence be vacated an new trial granted.
C) Prosecutorial Misconduct is due to the fact that the State's witness committed perjury and knew State knew about it and did not correct it for the jury so the jury could assess the facts of the case. Prosecutor knowingly introduced and relied on false evidence. Prosecutor knew that Plaintiff's co-defendant was in possession of crack but allowed the jury to go under the false impression that co-defendant was only claiming cocaine, and not the crack that was also found in a p[re]scription pill bottle that had Plaintiff's co-defendant's name on it, which codefendant claimed at trial[.] Plaintiff ask that sentence be vacated and new trial granted.
D) Brady Violation is due to the fact that exculpatory and impeachment evidence was with held from the Plaintiff. In the Plaintiff's Rule 5 and Rule 6, it is documented that within a p[re]scription pill bottle that was found by N. Charleston Police department there was 1.2 grams of powder cocaine in the p[re]scription pill bottle. At trial the Plaintiff's co-defendant claimed what was in the p[re]scription pill bottle but was onl[y] referring to claiming the cocaine. Which if this was known before trial evidence would have been s[upre]ssed. Also codefendant could have been impeached.
E) Due Process Violation is due to the fact that the Plaintiff life was at stake. The Plaintiff wanted to know the facts of the case. The state withheld exculpatory evidence and the actual facts of the case before the Plaintiff. The Plaintiff had a liberty interest to receive more procedure then the Plaintiff got from the state. The Plaintiff's proper defense was not properly established because of Prosecutorial Misconduct and Brady Violation. If Plaintiff knew about the exculpatory evidence or impeaching evidence, Plaintiff would have been acquitted of all charges. The Plaintiff ask that sentence be vacated and new trial granted.
F) Misrepresentation of case is due to the fact that the State and Prosecutor knew that cocaine base crack and powder cocaine was in a p[re]scription pill bottle. During the opening arguments the Prosecutor is saying the Plaintiff's co-defendant is only taking ownership of a little over a gram of pow[der] cocaine within a little p[re]scription pill bottle, but it is undisputed that there was cocaine base crack and powder cocaine found in the p[re]scription pill bottle. This is an continuous event throughout the Plaintiff's trial. The Plaintiff ask that Jury be given the actual facts of the case so they can better assess this credibility case, sentence be vacated, and new trial granted.
G) Improper Bolstering of witness is due to the fact that at Plaintiff's trial, the State only had one eye witness who alleged that Plaintiff was in possession of gun and drugs. In a credibility case Prosecution has strict guidelines to follow. In cases involving sexual abuse, which usually turn on the credibilities of defendant and prosecuting witness, strict adherence to the rules of evidence an appropriate prosecutorial conduct is required to ensure a fair trial. It goes undisputed that Plaintiff's case is a credibility case. During opening arguments, Prosecutor bolstered witness occupation. During witness testimony Prosecutor bolstered witness occupation. During closing arguments Prosecutor again bolstered the witness credibility. The Plaintiff ask that the bolstering of a witness in a credibility case be paid attention too and sentence vacated and new trial granted.
H) Improper Admission of Evidence is due to the fact that testimony regarding Plaintiff's possession of prescription drugs with out a prescription where such evidence was admitted in violation of Rules 403 and 404(b). Plaintiff ask that testimony be looked at in its [e]nt[ire]ty cause it did prejudice the Plaintiff, sentence be vacated, and new trial granted.
I) Structural Error is due to the fact that trial court abused it's discretion constituting structural error, by giving the jury a copy of the court's instruction. Plaintiff ask that the sentence be vacated and new trial granted.
J) Plain Error is due to that fact that incorrect jury instruction on mere presence charge, where it is stated.... Two or more persons may have joint possession of a drug. The Plaintiff's case was not a conspiracy case or more than one defendant on trial. Two or more persons may have joint possession of a drug should not have been said in jury instructions. Improper admission of tainted evidence constituting prosecutorial misconduct, Prosecutor entered in a aff[idavit] and cocaine as evidence when aff[idavit] and cocaine was tain[ted] in bad faith. The court allowed the evidence to be presented to the Jury under the false impression that the evidence was correct and admissible. Plaintiff ask that sentence be vacated and new trial granted with tainted evidence su[press]ed.
K) Chain of Custody issue is due to the fact that the chain of custody was broken in several places in the Plaintiff's case. During Plaintiff's arrest 12/12/07 the N. Charleston Police department committed police collusion to produce false and inaccurate police reports, and rule 6 forms. The officer who handled the drugs at the scene of the crime weighed.5 of cocaine base with 9.4 of cocaine in a attempt to hide the.5 of cocaine base in the cocaine. Aff[i]davit. Officer Jourdan was the officer who took the drugs from the scene and did not testify at my trial to what she found or transported to the Police department. The N. Charleston Police department drug analyst Alex Teachey did not write down the description of the items Alex Teachey received from Officer Jourdan and did not document what was transported to sled drug analyst Jill Clark of Columbia. Plaintiff ask that drugs are s[uppre]ssed, sentence vacated, and new trial granted.
L) New Discovered Evidence is due to the fact that after the Plaintiff's trial, it was later discovered that the police committed collusion to hide.5 of cocaine base crack in an Aff[i]davit for powder cocaine. The Plaintiff was intentionally misled by the state. The Plaintiff requested for a Motion of Discovery and in the rule 5, rule 6, and Officer report it is documented that 1.2 grams of powder cocaine in a p[re]scription pill bottle owned by Plaintiff's co-defendant. The 1.2 grams of powder cocaine was combined with 8.7 grams of powder cocaine that was also found. At trial Jill Clark sled drug analyst for the state, testified that the 1.2 grams inside of the p[re]scription pill bottle contain cocaine base crack and powder cocaine. Plaintiff ask that there be an evidentiary hearing on the cocaine evidence and Aff[i]davit, sentence vacated, and new trial granted.
M) New trial in interest of justice is due to the fact that in U.S. v. Morales. Defendant was entitled to new trial in prosecution for possession of firearm by defendant who had four previous convictions for violent felonies. Police officer's account that defendant fired semiautomatic pistol and tossed it into sinks in tavern was improbable since chamber was empty and clip and pistol were in different sinks; and it was possible that tavern owner or employee slipped gun and clip into sinks beneath bar. When complete record in case involving very large, mandatory, minimum penalty does not permit confident conclusion that defendant is guilty beyond reasonable doubt, district judge is obliged to grant motion for new trial. In Plaintiff case Plaintiff was a visitor at a hotel owned by Edward S. Ickes. Ickes showed the officers where drugs were located in his nightstand after police interrogation. Ickes then wrote a statement against the Plaintiff saying that Plaintiff placed the drugs in his nightstand. Plaintiff was then arrested and there was no finger prints t[a]ken from the nightstand, no finger prints from the bags the drugs were found in. No pictures were taken, no investigation was done to substantiate Ickes's claim. Plaintiff was facing a mandatory sentence 15-30 once found guilty. It was possible that Ickes could have placed the drugs in his nightstand. Plaintiff ask that this be looked at as an extreme case and Jury's verdict be questioned in the in interest of Justice, sentence vacated, and new trial granted.
N) Improper testimony is due to the fact that in State v. Jackson, 1876 case, where it is stated that, a co-defendant can not testify against another co-defendant unless being first acquitted or nolle prosequi before testifying. Plaintiff was arrested along with Edward S. Ickes on 12/12/07. Both were arrested as co-defendants and was charged together. Plaintiff pled not guilty and went to trial. At trial Plaintiff's co-defendant was a state witness and testified against Plaintiff without being acquitted or nolle prosequi until after Plaintiff was found guilty. Plaintiff ask that testimony of co-defendant be s[up]pressed, his sentence vacated, and new trial granted.
O) Miranda violation is due to the fact that the Plaintiff's statements which were made in response to police interrogation but without Plaintiff first being warned under Miranda because prescription drugs were found and arrest could be made and Plaintiff could not leave the area once drugs were found. In Laboy, Courts have identified several factors that could lead a reasonable innocent person to believe that he is not free to disregard the police officer, including: the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged detention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; inter[roga]tion in a non public place or a small, enclosed space; and absence of other members of the public. Plaintiff ask that statements made in response to police interrogation not be used against Plaintiff in the court of law because Plaintiff was not notified of the potential threat. Plaintiff ask that sentence be vacated, and new trial granted.
P) Improper admission of testimony regarding possession of prescription drugs is due to the fact that evidence was admitted in violation of rules 403 and 404(b). Plaintiff ask that testimony be s[upress]ed because of prejudice ...

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