United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Richard Deas ("Petitioner") is a state prisoner who
filed this pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. Â§ 2254. This matter is before the court
pursuant to 28 U.S.C. Â§ 636(b)(1)(B), and Local Civil Rule
73.02(B)(2)(c) DSC, for a Report and Recommendation on
Respondent's Return and Motion for Summary Judgment. ECF
Nos. 25, 26. On November 3, 2015, pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Petitioner of the Summary Judgment Motion, dismissal
procedures, and the possible consequences if he failed to
respond adequately to Respondent's Motion. ECF No. 27. On
January 20, 2016, Petitioner filed a Response in Opposition
to Respondent's Motion for Summary Judgment. ECF No. 36.
Having carefully considered the parties' submissions and
the record in this case, the undersigned recommends that
Respondent's Motion for Summary Judgment, ECF No. 25, be
is currently incarcerated in the Lee Correctional Institution
("LCI") of South Carolina Department of Corrections
("SCDC"). ECF No. 1 at 1. In 2003, Petitioner was
indicted at the April term of the Charleston County Grand
Jury for murder (2008-GS-10-3339) and possession of a firearm
during the commission of a crime of violence
(2008-GS-10-3340). App. 883-88. Assistant Public
Defenders Mary Ford and Andrew Grimes represented Petitioner
in a jury trial that convened from January 26-30, 2009, and
Assistant Solicitors Jennifer Shealy and Christopher Neely
represented the State. App. 1. Petitioner was tried before
the Honorable Deadra L. Jefferson. Id. After the
trial, the jury found Petitioner guilty of all charges. App.
714-15. Judge Jefferson sentenced Petitioner to 40-years
imprisonment for the murder conviction and five-years
imprisonment for the possession of a firearm conviction. App.
728. Judge Jefferson ordered the sentences run concurrently.
Appellate Defender Robert M. Dudek represented Petitioner on
appeal and briefed the following issue:
The trial court erred by admitting a taped conversation of
appellant from the county jail wherein he stated the seized
gun was not the murder weapon since this was not relevant,
and it was unduly prejudicial pursuant to Rule 403, SCRE
especially where the state admitted it wanted this evidence
before the jury so it could infer that appellant knew the
seized gun was not the murder weapon because he knew where
the murder weapon was located since this highly prejudicial
evidence had the very real tendency to mislead and confuse
730-745. Assistant Attorney General J. Anthony Mabry filed a
Response Brief on behalf of the State. 746-81. On November
21, 2012, the South Carolina Court of Appeals affirmed
Petitioner's convictions and sentences in an unpublished
opinion. App. 782-84. On December 7, 2012, the South Carolina
Court of Appeals issued a Remittitur. App. 785.
filed an application for Post-Conviction Relief
("PCR") on April 22, 2013 (2013-CP-10-2306). App.
786-92. Petitioner asserted the following allegations,
recited verbatim, regarding his claims:
a) Ineffective assistance of trial counsel.
b) Ineffective assistance of appellate counsel.
788. Petitioner asserted the following facts in support of
a) Failure to conduct an independent investigation and review
evidence with Applicant.
b) Failure to advise Applicant regarding possible defenses.
c) Failure to utilize defense witnesses.
Id. A Return was filed on behalf of the State on
December 5, 2013. App. 793-97. A PCR hearing convened on
April 17, 2014, before the Honorable R. Markley Dennis. App.
799-866. Petitioner was present and represented by Attorney
Rodney Davis; Assistant Attorney General Ashleigh R. Wilson
appeared on behalf of the State. Id. Petitioner and
trial counsel testified as witnesses during Petitioner's
PCR hearing. Id. In an Order filed July 16, 2014,
the PCR court denied Petitioner's PCR Application in
full, making the following findings of fact and conclusions
In his application, the Applicant alleges he is being held in
custody unlawfully for the following reasons:
1. Ineffective assistance of counsel.
a. Failure to conduct an independent investigation and review
evidence with Applicant.
b. Failure to advise Applicant regarding possible defenses.
c. Failure to utilize defense witnesses.
2. Ineffective assistance of appellate counsel.
At the hearing, Applicant proceeding solely on the following
allegations of ineffective assistance of trial counsel and
1. Ineffective assistance of trial counsel.
a. Failure to investigate crime scene or question witnesses.
b. Failure to investigate or present an alibi witness.
c. Failure to request a mistrial or object to early jury
deliberation when the jury asked about receiving a copy of
the trial transcript during trial.
d. Failure to request a mistrial or have the court properly
question a juror who was related to the victim.
e. Failure to obtain the written transcript of the jail tapes
and share with the Applicant.
f. Failure to call an expert witness on identifications.
2. Ineffective assistance of appellate counsel.
a. Failure to raise the issue of a juror being related to the
victim's family on appeal.
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. Sec.
of the Testimony
The Applicant was present at the hearing and testified he was
convicted of murder and possession of a weapon during the
commission of a violent crime. The Applicant testified he was
represented by Mary Ford and Andrew Grimes at trial and by
Robert Dudek on appeal. The Applicant testified he met with
Ford frequently and met Grimes the week of trial. He
testified he reviewed the discovery materials with counsel
and did not recall discussing possible defenses with counsel.
The Applicant testified Ford did not properly investigate his
case. He testified Ford did not go to the crime scene to
check the visibility of the scene at night. He testified she
never provided him with any information about her
investigation of the scene. The Applicant also testified
trial counsel did not investigate his alibi witnesses. He
testified counsel did not discuss an alibi defense with him
and she told him he had no defense. The Applicant testified
he did not discuss investigating Sandra Green or Tiana Lee
with trial counsel. He testified he wanted to call Lee
because she would have testified he was with her the night of
The Applicant testified two witnesses identified him as the
shooter. He testified the witnesses were brought to the
police by the victim's father. The Applicant testified
counsel never questioned the witnesses about how they came to
speak with police. He testified further counsel did not
question Shrod Young about his bias.
The Applicant testified counsel also did not get transcripts
of his recorded jail phone conversations. He testified he
made a statement about police not having the murder weapons
during a jail phone conversation. He testified he did not
have the call transcripts until after trial. He testified
that if he had the call transcripts prior to trial he would
have felt more comfortable taking the stand to testify at
The Applicant testified his blood sample was submitted for
DNA testing and found not to match any evidence. The
Applicant testified the SLED DNA person was not present to
testify at trial. He testified counsel failed to present
evidence that his DNA did not match at trial.
He testified the jury asked the court about receiving a copy
of the trial transcript during trial. The Applicant testified
counsel did not object to this request as early deliberation
by the jury. He testified further a juror was excused because
he was related to the victim. The Applicant testified counsel
did not have the juror properly questioned and did not
question the juror one on one. The Applicant testified
counsel should have asked for a mistrial based on these juror
Lastly, the Applicant testified he wanted appellate counsel
to argue on appeal the issue with the juror being related to
the victim. He testified appellate counsel told him he felt
comfortable with the arguments he presented in his brief.
Also present was Mary Ford, Esquire. Counsel testified she
has been practicing law as a public defender for over eight
years. She testified she was appointed to represent the
Applicant shortly after his arrest in October 2007. Counsel
testified her notes reflect she met with the Applicant at
least twelve times prior to trial. Counsel testified she
filed Brady and Rule 5 motions on the Applicant's behalf
and reviewed the materials received with the Applicant in
Counsel testified she discussed with the Applicant the
elements of the charges he was facing and what the State had
to prove. She testified she discussed with the Applicant his
version of the facts and he gave her Dixon, Lee, and Williams
as potential witnesses. Counsel testified the Applicant spoke
with police after arrest and told them he was with his
girlfriend Shanique Williams the night of the murder and that
he was with Lee and Dixon prior to that. Counsel testified
they discussed presenting an alibi defense at trial. She
testified she spoke with Lee and Dixon who said the Applicant
was with them, but left at some point and they were unsure
when he left. Counsel testified she spoke with Williams who
confirmed her statement to police. Counsel testified the
Applicant was unaccounted for at the time of the murder and
did not have a solid alibi to present at trial.
Counsel testified there was no evidence of self-defense in
the Applicant's case and their strategy was to attack the
credibility of the State's witnesses. She testified the
evidence included two eyewitnesses Miles and Young. She
testified Miles identified the Applicant in a photo line-up
and Young identified the Applicant after being charged with
obstruction of justice. Counsel testified during her
investigation Miles and Young would not speak with her.
Counsel testified she used an investigator to visit the scene
and track down Dixon and Lee. She testified she spoke with
the Applicant's sister, Dixon, and Lee. She testified she
reviewed the evidence and went to the scene during the day
time and drove by the scene at night. Counsel testified she
did not speak with Sandra Green, the victim's aunt,
during her investigation because Green was not an actual
witness to the murder. Counsel testified she did not give her
investigator's reports to the Applicant.
Counsel testified she had ample time to prepare for trial and
Andrew Grimes, Esquire, sat second chair with her during the
Applicant's trial. She testified she recalled a juror
being excused during trial because he was related to the
victim. She testified the foreperson was also questioned by
the Court about whether or not the excused juror had spoken
to any other jurors. Counsel testified she also recalled the
jury asking about access to the trial transcript during
trial. Counsel testified she asked the Court to poll the jury
on whether or not they had begun deliberations, but the Court
refused her request. Counsel testified she did not have a
basis to move for a mistrial on either jury issue.
Counsel testified she adequately cross-examined the two
eyewitnesses at trial on their inconsistent statements. She
testified she was able to elicit from Young that he told
police whatever they wanted to hear because he wanted a low
bond. She testified she also argued to the jury that Miles
and Young were trying to cover for someone else based on
their two different stories. Counsel testified she knew that
the two eyewitnesses had been brought to police by the
victim's father. She testified she brought this fact to
the jury's attention in closing and argued Miles told the
victim's father he did not know who the shooter was to
challenge Miles' credibility. She testified this fact was
also elicited by the State on direct examination of the
eyewitnesses. Counsel testified further that she did not
consider obtaining an identification expert. She testified
both witnesses said they knew the Applicant prior to the
incident and she was able to challenge the testimony of both
Miles and Young without an identification expert. Counsel
testified she did not object to the witness' in-court
identification of the Applicant.
Counsel testified the evidence indicated an unidentified
person's DNA was found under the victim's nails.
Counsel testified she agreed to allow Officer Osbourne to
testify about the DNA results and did not require the State
call a SLED DNA witness. She testified she felt
Osbourne's testimony at trial was sufficient to show the
Applicant's DNA ...