United States District Court, D. South Carolina
Green, Petitioner, Pro Se.
Cecilia Reynolds, Respondent, represented by William Edgar
Salter, III, S.C. Attorney General's Office & Donald John
Zelenka, S.C. Attorney General's Office.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Henry Green ("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. 20, 21, and Amended Answer and Amended Motion for
Summary Judgment, ECF Nos. 24, 25. On April 5, 2016, pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), the court advised Petitioner of the Summary Judgment
Motion, the Amended Summary Judgment Motion, dismissal
procedures, and the possible consequences if he failed to
respond adequately to Respondent's Motion. ECF Nos. 22,
26. On May 3, 2016, Petitioner filed a Response in Opposition
to Respondent's Amended Motion for Summary Judgment, ECF
No. 28, and on May 16, 2016, Respondent filed a Reply, ECF
No. 29. Having carefully considered the parties'
submissions and the record in this case, the undersigned
recommends that Respondent's Motion for Summary Judgment,
ECF No. 21, and Amended Motion for Summary Judgment, ECF No.
25, be granted.
is currently incarcerated in the Lee Correctional Institution
("LCI") of the South Carolina Department of
Corrections ("SCDC"). ECF No. 11 at 1. In 2001,
Petitioner was indicted at the March term of the Horry County
Grand Jury for one count of armed robbery and one count of
possession of a pistol by a person convicted of a crime
(2001-GS-26-715). ECF No. App. 357-61; 569-70. James C.
Galmore, III, Esq., represented Petitioner in a jury trial
that convened from May 16-17, 2001, before the Honorable
James E. Brogdon. App. 3-340; ECF No. 20-8; 20-9. After the
trial, the jury found Petitioner guilty on both charges. App.
333. Judge Brogdon sentenced Petitioner to life imprisonment
without the possibility of parole for the armed robbery
conviction and five-years' imprisonment for the firearm
possession conviction. Id. at 341.
Appellate Defender Katherine Carruth Link represented
Petitioner on direct appeal. App. 362-74. In his brief,
Petitioner raised and argued the following issues:
1. The trial court erred in admitting the witness
identification of Appellant, where it was the product of an
unduly suggestive show-up that resulted in a substantial
likelihood of irreparable misidentification.
2. The trial court erred in imposing a sentence of life
imprisonment without possibility of parole, where that
sentence amounted to cruel and unusual punishment as applied
to this Defendant.
Id. Senior Assistant Attorney General Harold M.
Coombs, Jr. filed the Response Brief on behalf of the State.
App. 375-87. After reviewing both briefs, the South Carolina
Court of Appeals affirmed Defendant's conviction and
sentence in an unpublished opinion, State v. Green,
2002-UP-730, filed November 25, 2002. App. 388-391. On
December 11, 2002, the court of appeals issued a Remittitur.
ECF No. 20-11.
filed an application for Post-Conviction Relief
("PCR") on April 28, 2003 (2003-CP-26-2530),
alleging ineffective assistance of trial counsel. App.
392-416. Specifically, Petitioner asserted the following
allegations, recited verbatim, regarding his claims:
"ineffective assistance of trial counsel; witness
identification unduly suggestive; applicant's life
without parole sentence for armed robbery constituted cruel
and unusual punishment in violation of the Eighth (8)
Amendment." App. 393. The State filed a Return to
Petitioner's Application on February 20, 2004. App.
425-28. Thereafter, Petitioner filed an Amended Application
for PCR on July 14, 2005, 2003-CP-26-2530, setting out 13
ineffective assistance of counsel claims. App. 417-424. The
State filed a Return to Petitioner's Application on
February 20, 2004. App. 425-28. On July 27, 2005, a PCR
hearing convened before the Honorable Steven H. John. App.
429-526. Petitioner was represented by Paul Archer, Esq., and
Chris Newton, Esq., appeared on behalf of the State. See
id. In an Order of Dismissal filed August 11, 2005, the
PCR court denied Petitioner's PCR Application in full,
making the following 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 at the
post-conviction relief hearing. This Court has further had
the opportunity to observe the witnesses presented at the
hearing, closely pass upon their credibility and weigh their
testimony accordingly. Set forth below are the relevant
findings of facts and conclusions of law as required pursuant
to S.C. Code Ann. Â§ 17-27-80 (1985).
The Applicant testified at the evidentiary hearing that he
believed his trial counsel was ineffective based on the
allegations made in his second amended application, omitting
ground "k." He believed the outcome of the trial
would have been different if trial counsel had objected
properly, argued more fully, and met with the witnesses Troy
Turner, Matthew Crane, and Wesley Carr. Trial counsel James
Galmore testified that the State had provided evidence of a
weapon, that he had fully argued the identification issue,
and that he had investigated the identification issue but he
was unable to counteract the identification testimony of the
victim. Galmore further testified that he had a notation in
his file that Troy Turner "knows nothing" about the
case. Galmore also stated that he did not see where Michelle
Bellamy or Kristy Collins actually identified the Applicant
in any way. Finally, Galmore believed that the allegation in
the indictment relating to the Applicant's prior record
was proper; he could not recall if the indictments were
entered into evidence in this case.
In a post-conviction relief action, the Applicant has the
burden of proving the allegations in the applicant. Rule
7.1(e), SCRCP; Butler v. State, 286 S.C. 441, 334
S.E.2d 813 (1985). 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, 2064, 80 L.Ed.2d 674, 692 (1984); Butler, Id.
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).
Courts use a two-pronged test in evaluating allegations of
ineffective assistance of counsel. 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.
This Court does not find the Applicant's testimony to be
credible on the issues in this case. Trial counsel's
testimony is found credible. This Court finds all of the
Applicant's claims of ineffective assistance of counsel
to be without merit. The identification issue, including the
attempted suppression of the show-up identification, were
properly handled by trial counsel. This Court finds nothing
objectionable in the State's closing arguments. The
Solicitor simply argued for the State's interpretation of
the evidence presented, making proper, reasonable inferences
from the evidence in the record. This Court finds no vouching
in this closing argument. There was no ground to object to
the admission of the gun into evidence. It was found near the
scene of the crime and near the scene of the Applicant's
arrest. The State did present clear, direct evidence that the
perpetrator of the crime was armed, thus a directed verdict
on that issue would have been frivolous at best. This Court
finds that trial counsel committed no error in conceding the
fact that an armed robbery did occur. He engaged in a
reasonable trial strategy of focusing on the identification
issue, which trial counsel testified was the crux of the
case. The witnesses Michelle Bellamy and Kristy Collins did
not identify the Applicant, therefore trial counsel had no
reason to object to their testimony. Trial counsel did object
to the officer's speculation about the Applicant's
intent to cross the fence, but had no grounds to object to
the officer's description of what he saw the Applicant
doing specifically. None of the witnesses the Applicant
alleged his trial counsel should have interviewed or called
testified during evidentiary hearing, thus this Court cannot
find any ineffective assistance of counsel based on such
claims. Finally, this Court finds no evidence that the
indictments in this case were introduced into evidence. Even
if the indictments were introduced into evidence, this Court
cannot find any ineffective assistance of counsel on that
basis. The evidence against the Applicant in this case was
overwhelming. He was identified by the victim, who
established his ability to see and recognize him, and he was
apprehended near the scene after being pursued by other
witnesses to the point of his arrest. The gun and the money
bags from the robbery were found in proximity to the
Given the above findings, the Applicant has failed to carry
his burden of proof. Trial counsel's performance did not
fall below reasonable professional standards. Furthermore,
the Applicant suffered no prejudice. There is no reasonable
probability that, but for any alleged errors, the result of
the trial would have been different.
Based on all the foregoing, this Court finds and concludes
that the Applicant has not established any constitutional
violations or deprivations that would require this court to
grant his application. Therefore, this application for post
conviction relief must be denied and dismissed with
This Court advises Applicant that he must file and serve a
notice of intent to appeal within thirty (30) days from the
receipt of this Order to secure the appropriate appellate
review. See Rule 203, SCACR. His attention is also
directed to the South Carolina Appellate Court Rule 227 for
appropriate procedures after notice has been timely filed.
1. That the Application for Post-Conviction Relief must be
denied and dismissed ...