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Green v. Reynolds

United States District Court, D. South Carolina

July 11, 2016

Henry Green, #126515, Petitioner,
Cecelia Reynolds, Warden, Respondent.

          Henry 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.


          KAYMANI D. WEST, Magistrate Judge.

         Petitioner 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. § 2254. This matter is before the court pursuant to 28 U.S.C. § 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.

         I. Background

         Petitioner 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.[1] 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.

         Assistant 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.

         II. Procedural History

         Petitioner 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. § 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 Applicant.
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 prejudice.
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 ...

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