United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT, Magistrate Judge.
Zachary Marquis Fowler, a self-represented state prisoner,
filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. Â§ 2254. This matter comes before the court pursuant
to 28 U.S.C. Â§ 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. 27.)
Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), Fowler 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. 29.) Fowler filed a response in opposition to the
respondent's motion. (ECF No. 31.) 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
Fowler's Petition denied.
was indicted in January 2007 in Greenville County for murder,
armed robbery and possession of a weapon during the
commission of a violent crime, assault with intent to kill,
assault and battery with intent to kill, and possession of a
pistol under twenty-one years of age (2007-GS-23-245, -246,
-247, -248, & -249). (App. at 699-708, ECF No. 28-3 at
201-10.) Fowler was represented by Thomas Creech, Esquire,
and on August 13-15, 2007 was tried before a jury and found
guilty as charged. The circuit court sentenced Fowler to life
imprisonment for murder and to concurrent sentences of five
years' imprisonment for possession of a weapon, thirty
years' imprisonment for armed robbery, twenty years'
imprisonment for assault and battery with intent to kill,
twenty years' imprisonment for assault with intent to
kill, and one year's imprisonment for possession of a
pistol under the age of twenty-one. (App. at 606-07, ECF No.
28-3 at 108-09.)
timely appealed and was represented by Joseph L. Savitz, III,
Esquire, Chief Appellate Defender, who filed a final brief on
Fowler's behalf that presented the following issue:
The trial judge committed reversible error by declining to
instruct the jury on voluntary manslaughter.
(ECF No. 28-4.) The State filed its final brief on June 9,
2009. (ECF No. 28-5.) In an unpublished opinion filed July
21, 2010, the South Carolina Court of Appeals affirmed
Fowler's convictions and sentences. (State v. Fowler, Op.
No. 2010-UP-372 (S.C. Ct. App. July 21, 2010); ECF No. 28-6.)
then filed a petition for writ of certiorari in the Supreme
Court of South Carolina. (ECF No. 28-7.) The State filed its
return thereafter. (ECF No. 28-8.) By letter dated October 5,
2011, the Clerk of the Supreme Court of South Carolina
informed the parties that the petition had been denied. (ECF
No. 28-9.) The remittitur was issued on October 7, 2011. (ECF
filed a pro se application for post-conviction
relief ("PCR") on August 10, 2012, in which he
raised the following claims:
10. (a) I WAS ILLEGALLY SEIZED WHICH VIOLATES MY 4TH & 14TH
AMENDMENT CONSTITUTIONAL RIGHTS.
11. (a) IN AFFECTIVE ASSISTANCE OF TRAIL COUNSEL & DIRECT
(See Fowler v. State of South Carolina, 2012-CP-23-5182; App.
at 610-20, ECF No. 28-3 at 112-22) (errors in original). The
State filed a return. (App. at 623-28, ECF No. 28-3 at
125-30.) Fowler, through counsel, filed an amended PCR
application on December 16, 2013, in which he raised the
1. Counsel was ineffective in that Counsel advised Applicant
not to testify during the Jackson v. Denno hearing
in the trial of this case;
2. Counsel was ineffective in that Counsel failed to
adequately and effectively challenge the voluntariness of
Applicant's statement and the absence of coercion;
3. Counsel was ineffective in that Counsel failed to
adequately and effectively challenge the legality of
4. Counsel was ineffective in that Counsel failed to
adequately and effectively challenge the legality of
Applicant's arrest warrants;
5. Counsel was ineffective in that Counsel failed to
adequately and effectively challenge the legality of the
State's search warrants;
6. Counsel was ineffective in that Counsel failed to
adequately and effectively challenge Applicant's
7. Counsel was ineffective in that Counsel failed to
incorporate the existence of two.22 live bullets found in
victims' automobile into the defense in the trial of this
(App. at 621-22, ECF No. 28-3 at 123-24.) On December 17,
2013, the PCR court held an evidentiary hearing at which
Fowler appeared and testified and was represented by Caroline
Horlbeck, Esquire. (App. at 629-89, ECF No. 28-3 at 131-91.)
By order filed February 17, 2014, the PCR court denied and
dismissed with prejudice Fowler's PCR application. (App.
at 690-98, ECF No. 28-3 at 192-200.)
appeal, Fowler was represented by David Alexander, Appellate
Defender, who filed a Johnson petition for a writ of
certiorari that presented the following question:
Whether trial counsel's failure to have petitioner
testify at the pretrial Jackson v. Denno, 378 U.S.
368 (1964) hearing constituted ineffective assistance of
counsel in derogation of petitioner's Sixth Amendment
(ECF No. 28-11.) On February 19, 2015, the Supreme Court of
South Carolina issued an order denying Fowler's petition
for a writ of certiorari and granting counsel's request
to withdraw. (ECF No. 20-12.) The remittitur was issued March
9, 2015. (ECF No. 20-13.) This action followed.
federal Petition for a writ of habeas corpus raises the
following issues, quoted verbatim:
Ground One: Trail judge committed reversible error by
declining to instruct the jury on voluntary manslaughter.
Supporting Facts: Prior to this incident, I had never come
into contact with Ms. Susan Galloway, Mr. Ron Harris, or Mr.
Gary Powell. On the day of this incident they were seeking to
buy drugs from me. As the transation progressed from
"did I have drugs" to "the amount I was able
to supply", I became nervous. Ms. Galloway asked to buy
$40 worth of crack cocain while Mr. Harris asked to by $400
worth of crack cocain This was very unusal and drew red flags
for me because its odd for someone to want a large quantity
before... testing the quality, which made me think I could
possibly be robbed. As we began to finalize the transaction
Ms. Galloway started to hand me the money but snatched it
away at the last minute reaching toward her purse. During the
time Mr. Harris is sitting in the back seat with money on his
lap, but as soon as she began to reach toward the floor board
he begins to reach in his left pocket that looks to have a
bulge in it. As these things happened simultaneously, I
freaked out and reacted by shooting at everyone because I
thought they had guns getting ready to hurt me. At the
position I was in I couldn't run or hide.
Ground Two: Illegal seizure
Supporting Facts: Upon arriving at 17b Appaloosa Dr. Det.
Conroy had the description of black male, tall, thin (Tr. P.
65, 3-6) as the suspect, and Diana Tisdale had been n victum
of a crime at the address (Tr. P. 66, 5-7). He didn't
know who owned the trailer, lived at the trailer, or if the
people - Applicant and Valencia - lived at the trailer (Tr.
P. 67, 23-25 Tr. P. 68, 1-8) After arriving at the trailer he
was greeted by the Applicant at the door. This is when and
where Det. Conroy grabbed me, handcuffed me, and put me in
the patrol car because I "looked nervous" (Tr. P.
426, 14-20 Tr. P. 49, 6-16) Det. Conroy expressed he was
concerned I was hot and decided to take me into a cooler
place. When Mr. Creech asked him... was it necessary to take
me to the patrol vehical he stated he wanted to separate me
and Valencia from hearing one another (Tr. P. 68, 19-25 Tr.
P. 69, 1-13) Det. Conroy goes on to say he was detaining me
waiting for a photo line up. (Tr. P. 69, 14-17) This photo
line up was never assembled, nor shown to victums. (Tr. P.
70, 2-11) As I sat in the patrol vehical no questions were
asked of me to verify or dispel his suspicion (Tr. P. 74,
14-25) During this entire process I was told I was not free
to leave (Tr. P. 79, 25 Tr. P. 80, 1-7) Det. Conroy states he
decided not to get a photo line up after the verbal statement
from Valencia, and receiving the written statement from me.
(Tr. P. 80, 8-10) Det. Conroy claims Valencia stated "He
shot them" (Tr. P. 76, 14-25 Tr. P. 77, 1-25)
On the contrary to this Det. John Hamlett heard differently.
Det. Hamlett was instructed to stay with Valencia in the
house by Det. Conroy detaining her. (Tr. P. 129, 19-25 Tr. P.
130, 1-15) Det. Hamlett was present during the time Valencia
supposedly made this statement, but claims he never heard her
say "He shot them" or anything like that. (Tr. P.
130, 20-25 Tr. P. 131, 1-5) The written statement received
from me was almost three hours after the initial seizure
Ground Three: Counsel failed to adequately and effectively
challenge the legality of the states search warrants.
Supporting Facts: There is no "search warrant" for
17B Appaloosa Dr. You will see two different affidavits, but
the last page that has "Form approved by S.C. attorney
general section 17-13-160 March 15, 1918" at the top
right hand corner are the same document. This form is a
duplicate purtaining to "a blue blue buck century four
door with tag number SC/278 NST" Furthermore, the
information in the affiants belief is false and supplied
falsely. Det. Conroy states he did not know who owned the
trailer, rented the trailer, or if the people inside the...
trailer lived there when he first arrived at 17B Appaloosa
Dr. (Tr. P. 67, 24-25 Tr. P. 68, 1-8) Det. Matt Justice
claims he heard about the search warrant being obtained a
short time after they arrived at 17B Appaloosa Dr. about
thirty minutes after. (Tr. P. 96, 7-14) No where in the
record do we see any of the Detectives ask or learn any of
this information. We do see me being detained and never asked
for identification or anything else, while being told a
search warrant was being obtained. (Tr. P. 74, 14-25 Tr. P.
75, 1-11) We also see Det. Conroy walking in the house,
introducing himself to Valencia, and never asking for
identification. (Tr. P. 68, 9-15) Still yet, the information
he gave to Det. Monty Mize was "the driver of the
vehical is also the legal resident of 17B Appaloosa Dr."
Not only was this information false, it was also relayed to
the magistrate judge improperly. Det. Mize received this
false information from Det. Conroy and obtained a search
warrant without informing the magistrate judge the
information caim from Det. Conroy, a third party source. (Tr.
P. 149, 16-25 Tr. P. 150, 1-25 Tr. P. 151, 1-25 Tr. P. 152,
1-25 Tr. P. 153, 1-25)
Ground Four: Counsel failed to adequately and effectively
challenge the legality of Applicant's arrest warrants
Supporting Facts: The magistrate judge did not sign the
original copy nor my defendant's copy arrest warrant. Mr.
Creech did not object to this. The probable cause in arrest
warrant affidavits, in part, states an unproved accusation.
The other part is evidence obtained after the detention began
was the sole reason of probable cause. The statement was
received three maybe four hours after the initial handcuffing
and placement in patrol vehical occured. (Tr. P. 53, 24-25
Tr. P. 54, 1-17)
Ground Five: Counsel failed to adequately and effectively
challenge Applicants indictments
Supporting Facts: Applicants indictments were not procured
legally and trail counsel did not object. The indictments do
not comply with the Rules of Criminal Procedures in South
Carolina according to rule three (c), nor were they accepted
at the Presentment by presiding judge John C. Few. On
transcript pages 688 & 689 you see documentation from the
Greenville County Clerk of Court sending me the Presentment.
On the othere you see the Presentment that has no signature
nor date. Mr. Creech also failed to object to this as well.
Ground Six: Counsel failed to incorporate the existence of
two.22 live bullets found in victims automobile into the