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Cooper v. Stevenson

United States District Court, D. South Carolina

January 22, 2016

Duval Melvin Cooper, Petitioner,
v.
Warden Robert M. Stevenson, III, Respondent.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT, Magistrate Judge.

         Petitioner Duval Melvin Cooper, 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. 24.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Cooper 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. 26.) Cooper filed a response in opposition to the respondent's motion. (ECF No. 29.) 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 Cooper's Petition denied.

         BACKGROUND

         Cooper was indicted in September 2005 in York County for trafficking in heroin and trafficking in methamphetamine (05-GS-46-3486, -3487). (App. at 165-68, ECF No. 25-1 at 167-70.) Cooper was represented by Vick Meetze, Esquire, and Gary Lemel, Esquire, and on February 15-16, 2006 was tried in absentia by a jury and found guilty as charged. (App. at 153, ECF No. 25-1 at 155.) The circuit court sealed Cooper's sentence. On May 20, 2010, Cooper appeared in the circuit court, at which time his sentence was unsealed. The circuit court sentenced Cooper to twentyfive years' imprisonment for trafficking in heroin, and twenty-five years' imprisonment for trafficking in methamphetamine, both sentences to be served concurrently. (App. at 160-61, ECF No. 25-1 at 162-63.)

         Cooper timely appealed and was represented by Kathrine H. Hudgins, Esquire, of the South Carolina Commission on Indigent Defense, who filed a brief on Cooper's behalf that raised the following issue:

Did the judge err in refusing to direct a verdict of acquittal when the State failed to prove the knowledge element required to show constructive possession of controlled substances found in a duffle bag in the back of a van appellant was driving?

(ECF No. 25-3.) On August 1, 2012, the South Carolina Court of Appeals affirmed Cooper's conviction. (State v. Cooper, Op. No. 2012-UP-465 (S.C. Ct. App. Aug. 1, 2012), ECF No. 25-5.) The remittitur was issued on August 21, 2012. (ECF No. 25-6.)

         Cooper filed a pro se application for post-conviction relief ("PCR") on September 7, 2012 in which he raised claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and that the trial court committed an error of law. (See Cooper v. State of South Carolina, 12-CP-46-3203; App. at 171-78, ECF No. 5-1 at 173-80.) Cooper included an attachment page that specified his claims as follows:

1. Ineffective Assistance of trial counsel for failing to object to trial in Absentee.
2. Ineffective Assistance of trial counsel for failing to move for a continuance to prevent a trial in Absentee.
3. Ineffective Assistance of trial counsel for failing to move for direct verdict concerning duffle bag containing drugs due to the fact that the vehicle was owned by another.
4. Ineffective Assistance of trial counsel for failing to conduct any pre-trial investigation and for failing to investigate third party guilt.
5. Ineffective Assistance of trial counsel for failing to move to quash the trafficking indictment based on the fact that joint occupancy alone cannot sustain the inference of dominion, control and knowledge.
6. Ineffective Assistance of trial counsel for failing to move for dismissal of charges due to the fact that the State could not establish a nexus between the defendant and the contraband based solely of defendant's mere presence.
7. Ineffective Assistance of Appellate counsel for failing to argue on appeal the issue of the trial proceeding in Applicant's absence. The record clearly demonstrates that the trial court failed to make a finding concerning whether or not Applicant was properly notified of the trial date, or that the Applicant received warning that the trial would proceed in his absence.
8. Ineffective Assistance of Appellate counsel for failing to file petition for rehearing before Court of Appeals. This denied Applicant a full "bite of the apple" thereby denying him due process.
9. Ineffective Assistance of Appellate counsel for failing to file a writ of certiorari to State Supreme Court. This denied Applicant a full "bite of the Apple" thereby denying him due process.
10. Trial court committed error of law by failing to make a finding on record that the Applicant had received notice of right to be present at trial and for failing to make a finding on record that the Applicant received warning that trial would proceed in his absence.
11. Applicant was denied his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and denied due process under the South Carolina Constitution by being denied the right to be present during the trial of his case.
12. Applicant was denied his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and denied his right to due process under the South Carolina Constitution by being denied the opportunity to exhaust every stage of the appellate process.

( Id., App. at 178, ECF No. 25-1 at 180.) The State filed a return. (App. at 179-83, ECF No. 181-85.) On May 16, 2013, the PCR court held an evidentiary hearing at which Cooper appeared and testified and was represented by Charles Brooks, Esquire. By order filed June 24, 2013 the PCR court denied and dismissed with prejudice Cooper's PCR application. (App. at 218-27, Supp. App. at 1, ECF No. 25-1 at 220-29, ECF No. 25-2 at 3.)

         On appeal, Cooper was represented by Kathrine Hudgins, Esquire, of the South Carolina Commission on Indigent Defense, who filed a petition for a writ of certiorari that presented the following issue:

Did the PCR Court err in refusing to find counsel ineffective in failing to object to the trial in absentia and failing to move for a continuance when petitioner was not present for trial and the record does not support that petitioner had notice of his trial date?

(ECF No. 25-7.) The State filed a return. (ECF No. 25-8.) On September 24, 2014 the South Carolina Supreme Court issued an order denying Cooper's petition for a writ of certiorari. (ECF No. 25-9.) The remittitur was issued on ...


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