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Fowler v. McKie

United States District Court, D. South Carolina

April 18, 2016

Zachary Marquis Fowler, Petitioner,
v.
Warden McKie, Respondent.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT, Magistrate Judge.

         Petitioner Zachary Marquis Fowler, a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 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.

         BACKGROUND

         Fowler 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.)

         Fowler 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.)

         Fowler 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 No. 28-10.)

         Fowler 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 APPEAL ATTORNEY

(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 following claims:

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 Applicant's detention;
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 indictments;
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 case[.]

(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.)

         On appeal, Fowler was represented by David Alexander, Appellate Defender, who filed a Johnson[1] 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 rights?

(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 HABEAS ISSUES

         Fowler's 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 began.
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 ...

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