United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Branson Jamal Thompson ("Petitioner"), a state prisoner, filed this pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), for a Report and Recommendation ("Report") on Respondent's Motion for Summary Judgment and Return. ECF Nos. 28. 29, and Petitioner's Motion for Summary Judgment. ECF No. 44. 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. ECF No. 30. Petitioner filed both a Motion for Summary Judgment and a Response in opposition to Respondent's Motion. ECF No. 45. Respondent did not file a reply to Petitioner's Response. Respondent's Return relative to Petitioner's Ground Three adequately addresses the matters raised in Petitioner's Motion for Summary Judgment. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment be granted and that Petitioner's Motion for Summary Judgment be denied.
I. Procedural History
Petitioner is currently incarcerated at Lieber Correctional Institution, part of the South Carolina Department of Corrections prison system. Pet. 1, ECF No. 1. Petitioner was charged in Cherokee County with first-degree burglary, criminal domestic violence of a high and aggravated nature, and two counts of pointing and presenting a firearm resulting from an incident that occurred on May 8, 2009. App. 111-18. On December 6, 2010, Petitioner, represented by Cherokee County Public Defender Don Thompson ("plea counsel"), appeared in Cherokee County General Sessions Court before Honorable Judge J. Mark Hayes ("plea judge") to enter a guilty plea to each of the charged crimes. The State was represented at the plea hearing by Attorney Michael Morin, an Assistant Solicitor, who informed the plea judge that the State had agreed to the plea and a negotiated 20-year sentence on the first-degree burglary conviction and concurrent sentences on the remaining convictions. App. 4. Upon questioning by the plea judge, Petitioner answered affirmatively when he was asked if his plea was being made "freely and voluntarily" and he denied that anyone had "threatened or promised [him] anything." App. 6. Petitioner told the plea judge that he was twenty-two-years old, that he understood the trialrelated rights he was giving up by pleading guilty, and that he was satisfied with plea counsel's representation. App. 5-7.
After hearing from the State regarding the facts of the underlying charges and Petitioner's prior criminal record, plea counsel informed the plea judge that Petitioner contested one of the prior convictions mentioned by the State. Petitioner told the judge that what the State had said about the facts was only partially correct, specifically referring only to the prior third-degree burglary conviction, which he denied having. He responded affirmatively when the plea judge said, "[s]o you believe that the solicitor is substantially correct in what he stated, even though you may disagree with some of the details of it?" App. 8-10. The plea judge then asked Petitioner if he understood the maximum sentences for the charges to which he was pleading guilty and that the domestic violence and burglary charges were considered "violent" offenses and that the burglary charge was also considered "a most-serious offense." Petitioner answered all questions about his understanding of the sentencing consequences of the plea affirmatively. App. 11. Petitioner also stated that he had been able to talk to plea counsel about the sentencing consequences of violent and most-serious crimes and told the plea judge that he was "in fact" guilty of all the charges to which he was pleading guilty. He also stated that all of his answers during the plea colloquy were truthful. App. 12. Following argument from plea counsel, including a statement to the effect that plea counsel had advised Petitioner not to take the negotiated plea but, instead, to plead "straight up" and testimony that Petitioner clearly understood that the negotiated sentence would have to be served without the possibility of parole and after a statement from Petitioner, App. 13-17, the plea court accepted the plea and imposed the negotiated 20-year sentence on the first-degree burglary conviction and concurrent ten-year and five-year sentences on the other three convictions, App. 17. Petitioner did not file a direct appeal.
Petitioner filed a post-conviction relief ("PCR") application on May 23, 2011, raising no grounds for relief, but requesting the right to amend the application. App. 19-26. Petitioner, through Attorney David C. Alford ("PCR counsel"), filed an amended application on January 17, 2013, raising the following grounds for relief:
As to Ineffective Assistance of Counsel:
a. Failure to advise as to right to an appeal.
b. Failure to advise that a jury trial could have considered a lesser charge to the Burglary First Degree, and absent this advice from his trial lawyer entered into the negotiated plea.
c. Failure to explain that aggravating circumstances as an element is duplicative of intent element, and not challenging the State'[s] duplicative reliance on the same of facts to prove different elements and charges.
d. Failure to advise that the negotiated Plea for 20 years also included community supervision requirements. Jackson v. State holds that CSP disclosure is not required of trial counsel. However, when considered in conjunction with (b), the totality of the circumstance resulted in an uninformed basis for plea negotiation.
e. Failure to review and explain Rule 5 discovery, investigate potential state witnesses or other possible witnesses, alternate defenses, and elements of the charges prejudiced Petitioner by having inadequate information for electing the negotiated plea.
f. Failure to raise consent for entry as a defense, or to investigate potential witnesses.
g. Failure to investigate whether any State's witness was subject to intimidation.
h. Failure to conduct a mental evaluation as to petitioner's mental condition, i.e. hearing voices, delusional thoughts.
As to the Grand Jury,
i. Prosecutor misled the Grand Jury by misstating the crime was at night, and as to prior convictions by Petitioner.
j. African-Americans are systematically excluded from the selection process.
App. 29-30. On January 25, 2013, a second amendment to the PCR application containing the identical grounds for relief was filed by PCR counsel. App. 32-33. Thompson v. State, No. 11-CP-11-0324. After the State filed its Return to the PCR application, App. 48-52, an evidentiary hearing was held on June 24, 2013 in Spartanburg, South Carolina before the Honorable Judge R. Lawton McIntosh ("the PCR court"). PCR counsel represented Petitioner and Assistant Attorney General Suzanne H. White represented the State at the hearing. App. 53. Petitioner and plea counsel testified at the hearing. App. 59-85, 85-93. Following the hearing, the PCR court issued an order of dismissal dated October 31, 2013. App. 100-10. Neither party to this case disputes that the PCR court's order accurately summarizes the testimony provided by the two witnesses at the PCR hearing. Thus, because the relevant portion of that order is quoted verbatim below, it is unnecessary for this court to provide a separate summary of the testimony given at the PCR hearing in this Report. The PCR court's order contains the following findings of fact and conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court has had the opportunity to review the record in its entirety and has heard the testimony and arguments presented at the PCR hearing. This Court has further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon their credibility. This Court has weighed the testimony accordingly. Set forth below are the relevant findings of fact and conclusions of law as required by S.C. Code Ann. § 17-27-80 (2003).
Ineffective Assistance of Counsel
The Applicant alleges he received ineffective assistance of counsel. In a PCR action, "[t]he burden of proof is on the applicant to prove his allegations by a preponderance of the evidence." Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002)(citing Rule 71.1(e), SCRCP). Where ineffective assistance of counsel is alleged as a ground for relief, the Applicant must prove that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, 692 (1984); Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985).
The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler, Id . The Applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
First, the Applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its "reasonableness under professional norms." Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland). Second, counsel's deficient performance must have prejudiced the Applicant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. "A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland).
With respect to guilty plea counsel, the Applicant must show that there is a reasonable probability that, but for counsel's alleged errors, he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
Failed to advise as to right to appeal
The Applicant has alleged that he is entitled to a review of direct appeal issues pursuant to White v. State, 263 S.C. 110, 108 S.E.2d 35 (1974). Counsel has a constitutionally-imposed duty to consult with a defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal, or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Roe v. Flores-Ortega, 328 U.S. 470, 120 S.Ct. 1029 (U.S.).
This Court finds that the Applicant failed to meet his burden of proof as to this claim. The Applicant never presented any testimony that he asked Counsel to file an appeal on his behalf. Based upon the standard set forth in Roe v. Flores-Ortega, this Court finds that Counsel was not required to advise Applicant as to the right to appeal, in particular because the Applicant pled to an agreed upon negotiated sentence. This claim is denied and dismissed.
Failed to advise that the jury could have considered a lesser charge from burglary - 1st degree
This Court finds that the plea court reviewed all the necessary elements of a voluntary plea with Applicant, including giving up the right to present a defense to the charges. Furthermore, Applicant's mother was prepared to testify and the Applicant acknowledged that the crime was committed at 4:00 am and that a shotgun was involved, which led to the burglary-1st degree charge. Therefore, this Court finds that the Applicant failed to meet his burden of proof as to this claim and it is denied and dismissed.
Failed to explain elements of charges and failed to challenge State's duplicative reliance on same facts to prove different elements and charges
The only testimony presented in support of this claim was the assertion that Applicant would have proceeded to trial if Counsel had fully explained all of the elements of the charges. This Court does not find Applicant's testimony credible. As discussed previously, this Court finds that the plea colloquy was very thorough and the Applicant indicated that he understood his charges and the consequences of pleading to each of them. This Court finds that the Applicant has failed to meet his burden of proof as to this claim. Therefore, this claim is denied and dismissed.
Failed to advise that the negotiated plea also included community supervision requirements
This Court also finds that this claim should be denied because it lacks merit. The Supreme Court has addressed the issue of whether counsel was under a duty to advise his client of a community supervision program, made a condition of release after serving eighty-five percent of a "no-parole offense." Jackson v. State, 349 S.C. 62, 562 S.E.2d 475 (2002). The Supreme Court found the program was the functional equivalent of parole for other inmates. Applying Griffin v. Martin, 278 S.C. 620, 300 S.E.2d 482 (1983) and Knox v. State, 340 S.C. 81, 530 S.E.2d 887 (2000), the Supreme Court found that counsel is under no duty to advise a defendant about the community supervision program. Id.
This Court finds that Counsel is not required to advise the Applicant as to the community supervision requirements. However, even in light of no requirement of advisement, this Court also finds that the plea court gave a complete plea colloquy, where all potential sentences and consequences regarding violent and most-serious charges were discussed. Therefore, this claim is denied and dismissed.
Failed to review and explain discovery materials, failed to investigate potential witnesses, alternate defenses and elements of charges
This Court finds that the Applicant's testimony as to these allegations was not credible, while Counsel's testimony was credible. Applicant testified that he only met with Counsel two or three times in the week prior to trial. Applicant testified that Counsel brought him a copy of his discovery materials and Rule 5 materials, to which Applicant signed an acknowledgment of receipt, but claimed that Counsel never reviewed the materials with him. Applicant testified that he and Counsel never discussed any possible trial strategy.
Counsel testified that he represented the Applicant on these charges and on a probation violation charge. Counsel testified that he met with the Applicant to discuss the case and then the Applicant was sent to SCDC for the probation revocation. Counsel testified that Applicant was brought back to Cherokee County in November based upon a speedy trial motion that Applicant filed. Counsel testified that he met with the Applicant at that time and discussed the case and charges, at which time he provided Applicant with a complete set of discovery materials. Counsel then testified that he went back to review discovery materials with the Applicant a couple of days later. Counsel testified that he attempted to talk with three witnesses and was able to locate two of the three. Counsel testified that one of the three was a third party, but that witness was not a witness to the events inside the apartment. Counsel also testified that he spoke with Applicant's mother, who provided the same story that she had given police. Although Applicant's mother claimed to not have heard any gun shots, two empty shells were retrieved from the apartment.
Prejudice from trial counsel's failure to interview or call witnesses cannot be shown where the witnesses do not testify at post-conviction relief. Underwood v. State, 309 S.C. 560, 425 S.E.2d 20 (1992); Bassette v. Thompson, 915 F.2d 932 (4th Cir. 1990), cert. denied, 499 U.S. 982 (1991). The Applicant's mere speculation as to what a witnesses' testimony would have been cannot, by itself, satisfy his burden of showing prejudice. Clark v. State, 315 S.C. 385, 434 S.E.2d 266 (1993); Glover v. State, 318 S.C. 496, 458 S.E.2d 538 (1995). An Applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to established prejudice from the witness' failure to testify at trial. Bannister v. State, 333 S.C. 298, 509 S.E.2d 807 (1998).
To establish counsel was inadequately prepared, an Applicant must present evidence of what counsel could have discovered or what other defenses could have been pursued had counsel been more fully prepared. Jackson v. State, 329 S.C. 210, 481 S.E.2d 129 (1998); Skeen v. State, 325 S.C. 210, 481 S.E.2d 129 (1997) (applicant not entitled to relief where no evidence presented at PCR hearing to show how additional preparation would have had any possible effect on the result at trial). The "brevity of time spent in consultation, without more, does not establish, that counsel was ineffective." Easter v. Estell, 609 F.2d 756, 759 (5th Cir. 1980). When claims of ineffective assistance of counsel are based on lack of preparation time, an Applicant challenging his conviction must show specific prejudice resulting from counsel's alleged lack of time to prepare. United States v. Cronie, 466 U.S. 648, 104 S.Ct. 2039 (1984); U.S. v. LaRouche, 896 F.2d 815 (4th Cir. 1990).
The Applicant failed to produce any witnesses or evidence that would support his claims. Applicant failed to demonstrate that there was anything that could have been discovered had Counsel done additional investigation. Applicant also failed to prove that there was any helpful testimony that could have been developed had Counsel spoken to all of the potential witnesses. Without any credible testimony or evidence to support his claims, this Court would have to engage in speculation to find that there was ...