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Simmons v. Dunlap

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

February 16, 2016

RODNEY SIMMONS, Petitioner,
v.
DAVID DUNLAP, Respondent.

ORDER

DAVID C. NORTON UNITED STATES DISTRICT JUDGE

This matter is before the court on United States Magistrate Judge Thomas Rogers’s report and recommendation (“R&R”). The magistrate judge recommends that the court deny Rodney Simmons’s (“petitioner”) petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, grant respondent Larry Cartledge’s (“respondent”)[1] motion for summary judgment, and deny petitioner’s motion to supplement evidence. For the reasons set forth below, the court adopts the R&R, denies the petition, grants respondent’s motion for summary judgment, and denies petitioner’s motion for supplemental evidence.

I. BACKGROUND

Petitioner is currently incarcerated in the Kershaw Correctional Institution of the South Carolina Department of Corrections. Petitioner was indicted in July and August 2008 for criminal sexual conduct with a minor-second degree. On November 29, 2010, petitioner proceeded to trial, represented by Richard Welchel (“Welchel”), before the Honorable Derham Cole. App. at 249-50.[2] The jury returned a guilty verdict at the conclusion of trial. Petitioner was sentenced to eighteen years imprisonment. App. at 253.

On December 6, 2010, petitioner filed a notice of appeal. ECF No. 18, Ex. 3. Petitioner appealed his conviction, and on July 7, 2011, Breen Richard Stevens (“Stevens”) of the South Carolina Commission on Indigent Defense filed an Anders[3]brief on his behalf in the South Carolina Court of Appeals. Petitioner raised the following issues in his direct appeal: (1) whether the trial court erred in performing its gatekeeping duties by failing to make the three preliminary findings fundamental to Rule 702 of the South Carolina Rules of Evidence before it permitted the jury to consider expert testimony from Nancy Henderson, Wiley Garrett, and Thomas Evans; and (2) whether the testimony of Wiley Garrett constituted improper corroboration and bolstering. Pet’r’s Appeal Br. 3, ECF No. 18, Ex. 2. In a letter dated October 6, 2011, Stevens informed the South Carolina Court of Appeals that petitioner elected to voluntarily dismiss his appeal. ECF No. 18, Ex. 4. The South Carolina Court of Appeals issued an order of dismissal on October 13, 2011. ECF No. 18, Ex. 5.

On January 6, 2012, petitioner filed a pro se application for post-conviction relief (“PCR”) in which he alleged that his counsel was ineffective. App. at 258. Petitioner raised the following grounds for relief: “(a) Ineffective Assistance of counsel; (b) Ineffective Assistance of counsel; (c) Ineffective Assistance of counsel.” Id. Petitioner provided the following facts in support of his three grounds for relief, quoted substantially verbatim: (a) Denied counsel at critical stage, Denied the right of effective cross examination and pre-trial objections; (b) counsel failed to investigate facts and circumstances; (c) Brady violation. Id. The State filed a return, dated August 24, 2012. App. at 263-67. The PCR court held a hearing on November 15, 2013 during which attorney Mark Knowles represented the petitioner. App. at 268-330. The PCR court denied and dismissed petitioner’s PCR application with prejudice on March 6, 2014. App. at 332-40. Petitioner timely filed a notice of appeal on March 26, 2014. ECF No. 18, Ex. 6.

Lara M. Caudy of the South Carolina Commission of Indigent Defense filed a petitioner for writ of certiorari on petitioner’s behalf on December 22, 2014. ECF No.18, Ex. 7. Petitioner presented one issue to the South Carolina Supreme Court:

Whether Petitioner’s Sixth and Fourteenth Amendment rights to the effective assistance of counsel were violated when trial counsel failed to object when the solicitor impeached Petitioner with his prior conviction for “assault on a female” and capitalized on it during her closing argument since this was improper under Rule 609(a), SCRE, and since Petitioner did not open the door to this improper impeachment through his testimony?

Id. at 3. The South Carolina Supreme Court denied the petition on April 23, 2015 and remitted the matter to the lower court on May 12, 2015. ECF No. 18, Exs. 9-10.

Petitioner filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 12, 2015. Respondent filed a motion for summary judgment on August 20, 2015. ECF No. 17. Petitioner asserts the following four grounds for relief, quoted substantially verbatim:

Ground One: INEFFECTIVE ASSISTANCE OF COUNSEL
Supporting facts: see attached
Ground Two: INEFFECTIVE ASSISTANCE OF COUNSEL (A)
Supporting facts: see attached
Ground Three: INEFFECTIVE ASSISTANCE OF COUNSEL (B)
Supporting facts: see attached
Ground Four: INEFFECTIVE ASSISTANCE OF COUNSEL (C)
Supporting facts: see attached[4]

Pet’r’s Habeas Pet. 6. On September 24, 2015, petitioner filed a response in opposition to the motion for summary judgment. ECF No. 25. On October 26, 2015, petitioner filed a motion to supplement evidence to support his arguments. ECF No. 31. The magistrate judge issued an R&R on January 7, 2016, recommending that this court grant respondent’s motion for summary judgment, deny petitioner’s habeas petition, and deny petitioner’s motion for supplemental evidence. Petitioner filed ...


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