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Culbreath v. Weedon

United States District Court, D. South Carolina, Greenville Division

June 20, 2016

Virgil Culbreath, #306351, Petitioner,
v.
Kenneth B. Weedon, Respondent.

          ORDER

          PATRICK MICHAEL DUFFY United States District Judge.

         This matter is before the Court upon Petitioner Virgil Culbreath’s (“Culbreath” or “the Petitioner”) pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 30, 2015, the Respondent filed a motion for summary judgment, and after being granted several extensions of time to respond, the Petitioner filed a response in opposition on August 17, 2015, and another response on September 10, 2015. Pursuant to 28 U.S.C. 636(b)(1)(B) and the Local Rules for the District of South Carolina, the matter was referred to a United States Magistrate Judge for review. On January 27, 2016, Magistrate Judge Kevin McDonald issued a report and recommendation (“R&R”) outlining the issues and recommending that the Court grant the Respondent’s motion for summary judgment. Culbreath filed objections to the R&R, and the matter is ripe for review.

         BACKGROUND

         The Petitioner, who is currently incarcerated at the Walden Correctional Institution in the South Carolina Department of Corrections (“SCDC”), was indicted by the Edgefield County Grand Jury in June 2004 on drug-related charges. The Honorable Doyet A. Early, III, South Carolina Circuit Judge, presided over a jury trial from November 17-19, 2004, at which Martin C. Puetz, Esq., represented the Petitioner. The jury found the Petitioner guilty, and Judge Early sentenced him to 15 years in prison.

         Immediately after sentencing, the Petitioner moved for a new trial and requested additional time, which the judge allowed. Trial counsel filed a written motion for a new trial on November 29, 2004, and on January 24, 2005, trial counsel filed a brief in support of the motion. The State filed its response on February 11, 2005. The Petitioner’s trial counsel also submitted an affidavit from the Petitioner, a brief, and exhibits. By order dated March 30, 2005, Judge Early denied the motion. Trial counsel filed a supplement to the motion on April 27, 2005, and the Petitioner appealed.

         Appellate Defender Eleanor Duffy Cleary of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented the Petitioner on appeal and filed a final brief with the South Carolina Court of Appeals on June 19, 2007, raising the following issue: “Whether the trial court erred in refusing to grant a mistrial after the State’s key witness mentioned several times prior drug dealings with appellant?” (Entry 23-7 at 3.)

         The State filed its final brief on June 7, 2007. On March 8, 2008, the South Carolina Court of Appeals affirmed by published opinion. State v. Culbreath, 659 S.E.2d 268, 270 (S.C. Ct. App. 2008). The Petitioner did not file a petition for rehearing and did not seek a writ of certiorari from the Supreme Court of South Carolina. The South Carolina Court of Appeals issued the remittitur on April 3, 2008.

         On June 29, 2008, the Petitioner filed an application for post-conviction relief (“PCR”) in which he raised the following claims: ineffective assistance of trial counsel and ineffective assistance of appellate counsel. (Entry 23-3 at 160.) The Respondent filed the State’s return on December 19, 2008, and moved to dismiss based on the non-specific nature of the allegations. Trisha A. Blanchette, Esq., represented the Petitioner, and on January 8, 2009, she filed a response in opposition raising the following claims:

         1. Ineffective Assistance of Counsel

a. Trial counsel was ineffective for his failure to properly prepare and investigate prior to trial.
i. Failure to obtain a preliminary hearing.
ii. Failure to obtain a complete copy of discovery, the indictments, and a copy or transcript of the audio/video recordings.
b. Trial counsel was ineffective for his failure to make proper objections to discovery violations in order to preserve such issues for appeal.
i. Failure to object regarding his receipt of the indictments on the day of trial.
ii. Failure to object when he was not told that the co-defendant would be a state witness prior to the day of trial.
iii. Failure to object regarding his failure to receive a copy or transcript of the audio/video evidence.
iv. Failure to object when the State introduced statements not previously provided to the defense.
c. Trial counsel was ineffective for his failure to make contemporaneous objections to hearsay, prior bad act, and bad character testimony.
d. Trial counsel was ineffective when he opened the door to prior bad act testimony from the confidential informant.
e. Trial counsel was ineffective for his failure to properly object to the chain of custody and cross-examine the State’s chemist when the illegal substance reported on the chain of custody and in the reports did not match the substance introduced into evidence.
f. Trial counsel was ineffective for his failure to object to the Solicitor’s closing argument; specifically, failure to object to the Solicitor’s vouching for a State witness.
g. Trial counsel was ineffective for his failure to object to the jury instructions handed down by the Court.

         2. Ineffective Assistance of Appellate Counsel (Eleanor Duffy Cleary, Esquire)

a. Appellate counsel was ineffective for her failure to raise meritorious issues on appeal.
i. Failure to raise Batson challenge.
ii. Failure to raise defense counsel’s and Applicant’s motion for a continuance.
iii. Failure to raise chain of custody.
iv. Failure to raise motion for directed verdict.
b. Appellate counsel was ineffective for her failure to properly raise the issue on appeal, failure to grant a mistrial for prior bad act testimony.

(Entry 23-3 at 168-69.) On May 11, 2010, PCR counsel filed an amendment to the application with the following additional claims:

1. Trial counsel was ineffective for his failure to address the procurement of the indictment and the fact that the Applicant’s mother was member of the grand jury.
2. Trial counsel was ineffective for his failure to move to suppress the arrest warrant and address the reliability of the confidential informant.
3. Trial counsel was ineffective for his failure to properly prepare and utilize witness Monique (Jatawa) Watson.
4. Trial counsel was ineffective for his failure to raise or plead an entrapment defense.
5. Trial counsel was ineffective for his failure to object to the reasonable doubt instruction since it was in conflict with the Court’s charge on the trafficking statute.

(Entry 23-4 at 2.) Then, on September 7, 2010, PCR counsel filed an additional amendment, addition the following:

1. Trial counsel was ineffective for his failure to fully address the inconsistencies in the arrest warrant, search warrant, ...

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