United States District Court, D. South Carolina, Anderson/Greenwood Division
Javon Brown, a/k/a Jovan T. Brown, a/k/a Jovon Brown, Petitioner,
Joseph McFadden, Warden, Respondent.
R. Bryan Harwell United States District Judge
Petitioner, Javon Brown, a state prisoner proceeding pro se, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See [ECF No. 1]. Pending before the Court is Respondent’s amended motion for summary judgment [ECF No. 46] pursuant to Rule 56 of the Federal Rules of Civil Procedure. This matter is before the Court with the Report and Recommendation (R & R) of United States Magistrate Judge Jacquelyn D. Austin. See [ECF No. 59]. The Magistrate Judge recommended granting the Respondent’s amended motion for summary judgment and denying Petitioner’s petition. For the reasons stated below, the Court adopts the Magistrate Judge’s R & R, as modified, grants Respondent’s amended motion for summary judgment, and dismisses Petitioner’s § 2254 petition with prejudice.
Facts and Procedural History
This matter arises from the criminal conviction and sentence of Petitioner, Javon Brown, on indictments for possession with intent to distribute cocaine and possession with intent to distribute cocaine base. Petitioner was represented by James T. Irvin and on January 8, 2009, was tried in absentia. A jury returned a verdict of guilty on both charges. Petitioner was sentenced to 20 years imprisonment and a $10, 000.00 fine on each count, with the sentences to run concurrently. Petitioner did not appeal his conviction or sentence.
On May 28, 2010, Petitioner filed a pro se application for post-conviction relief in which he alleged:
a) Ineffective assistance of counsel; and
b) Denial of due process, 6th and 14th Amend.;
A post-conviction relief (“PCR”) hearing was held on November 8, 2011. Petitioner was represented by Barbara W. Pratt. On May 21, 2012, the PCR court filed an order denying relief as to the convictions but granting relief as to the sentencing. Accordingly, the PCR court remanded the case to the sentencing judge for a de novo sentencing hearing. On May 31, 2012, Petitioner filed a motion to alter or amend the judgment requesting that the PCR court amend its order to include its ruling on whether counsel was ineffective for failing to contest the use of the Petitioner’s prior convictions to enhance his sentence. The PCR court granted the motion to alter or amend and issued a ruling on the additional issue but denied the requested relief.
Petitioner timely appealed and was represented by Lanelle Cantey Durant who filed a petition for writ of certiorari to the South Carolina Supreme Court on Petitioner’s behalf. The sole issue raised on appeal was:
Did the PCR court err in failing to find trial counsel ineffective for not making a motion to suppress the drugs which were the fruit of an illegal arrest for DUS when Petitioner’s license was reinstated but DMV records were not updated timely?
The court denied the petition on February 10, 2014 and remitted the matter to the lower court on March 4, 2014.
Petitioner then filed the current petition, which alleges four grounds. In ground one, Petitioner alleges trial counsel was ineffective for failing to make a motion to suppress drugs which were the fruit of an alleged illegal arrest. In ground two, Petitioner alleges trial counsel was ineffective for failing to file an objection under South Carolina Rule of Criminal Procedure 6(B) to require proof of the chain of custody at trial. In ground three, Petitioner alleges trial counsel was ineffective for failing to investigate the facts of the stop, search, and arrest. In ground four, Petitioner alleges trial counsel was ineffective for failing to communicate sentencing enhancement factors.
Respondent filed a return and motion for summary judgment on August 7, 2014. On January 8, 2015, the Magistrate Judge issued an R&R recommending that Respondent’s motion for summary judgment be denied with leave to refile. On March 2, 2015, this Court adopted the Magistrate Judge’s R&R and denied Respondent’s motion for summary judgment without prejudice.
On March 24, 2015, Respondent filed an amended return and motion for summary judgment arguing that grounds one and three should be denied on the merits because Petitioner cannot establish constitutionally deficient performance by trial counsel or any resulting prejudice. Respondent argues ground four should be dismissed as procedurally defaulted. Petitioner has withdrawn his claim under ground two conceding that ground two was ...