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Heath v. Stevenson

United States District Court, D. South Carolina, Anderson/Greenwood Division

July 15, 2016

David Heath, Petitioner,
v.
Warden Robert Stevenson, Respondent.

          David Heath, Petitioner, Pro Se.

          Warden Robert Stevenson, 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 OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN, Magistrate Judge.

         This matter is before the Court on Respondent's motion for summary judgment. [Doc. 30.] Petitioner, proceeding pro se, is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

         Petitioner filed this Petition for writ of habeas corpus on June 2, 2015.[1] [Doc. 1-1.] On November 30, 2015, Respondent filed a motion for summary judgment and a return and memorandum to the Petition. [Docs. 29, 30.] On December 2, 2015, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 31.] Petitioner's response in opposition was entered on the docket on January 11, 2016. [Doc. 36.]

         Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted.

         BACKGROUND

         Petitioner is presently confined in the South Carolina Department of Corrections at Broad River Correctional Institution pursuant to orders of commitment of the Aiken County Clerk of Court. [Doc. 1 at 1.] In June 2005, Petitioner was indicted for criminal sexual conduct ("CSC") with a minor in the second degree and contributing to the delinquency of a minor. [App. 251-54.[2] On August 13-14, 2007, represented by David W. Miller ("Miller"), Petitioner was tried in absentia. [App. 1-244.] The jury returned a verdict of guilty on both charges. [App. 230.] Petitioner appeared before the Honorable J. Michelle Childs on September 10, 2007, and Judge Childs opened the previously sealed sentence and sentenced Petitioner to twenty years imprisonment on the CSC with a minor in the second degree charge and three years imprisonment, to run concurrent, on the contributing to the delinquency of a minor charge.[3] [App. 245-50.]

         Direct Appeal

         Petitioner appealed his conviction. Deputy Chief Appellate Defender Wanda H. Carter ("Carter") represented him on direct appeal. Petitioner raised the following issue on direct appeal:

The trial judge erred in denying defense counsel's motion for a directed verdict of acquittal on the offense of contributing to the delinquency of a minor because there was no proof beyond a reasonable doubt establishing that appellant was guilty of the charge.

         [Doc. 29-3 at 4.] The South Carolina Court of Appeals affirmed Petitioner's conviction and sentence on October 28, 2010. [Doc. 29-5.] Remittitur was issued on November 15, 2010. [Doc. 29-6.]

         PCR Proceedings

         Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on May 6, 2011. [App. 257-72.] He raised the following three claims:

(A) Factual Innocence
This legal framework and foundation being firmly in place, the Court is compelled to look at the facts in regard to this case sub-justice because the law arises from facts (Ex Facto Oritur Jus). The material facts that surround this case will prove beyond a reasonable doubt that Mr. Heath [is] factually [innocent] of this allege crime that he was wrongfully convicted of on August 14, 2007.
* * *
(B) Was the Applicant's Fifth, Sixth and Fourteenth Amendment Rights of the United States Constitution and his Right of Due Process was violated by Solicitor and Law Enforcement has broken the chain of custody and failed to establish a chain of custody.
The Applicant contends that the chain of custody was broken by the Respondent....
* * *
(C) Was the Applicant's Fifth, Sixth and Fourteenth Amendment Rights and/or Due Process Rights violated as well as Rules of Court and/or Rules of Criminal Procedure by the failure of the prosecuting agent(s) to give a due notice of the trial date?
This legal framework and foundation being firmly in place, the Court is compelled to look at the facts in regard to this case sub-justice because the law arises from facts (Ex Facto Oritur Jus). The State tried the Applicant's in his absence. On Tr. p. 9 lines 19 thru. 25 the Applicant's attorney [moved] for a continuance, but the Court denied the motion....

         [App. 263-67.] The State filed a return and motion to dismiss on September 26, 2011. [App. 273-78.] The PCR court entered a Conditional Order of Dismissal on September 27, 2011, in which it conditionally dismissed Petitioner's application as beyond the jurisdictional authority of the PCR court. [App. 280-83.] Petitioner amended his pro se PCR application to add the following allegations:

         Ineffective Assistance of Counsel:

a. "Counsel was ineffective for failing to argue the prosecution failure to establish a chain of custody;"
b. "Counsel was ineffective for failure to offer factual innocence defense;" and
c. "Counsel, was ineffective for failing to argue that Applicant's Fifth, Sixth, and Fourteenth Amendment Rights and/or Due Process Rights violated as well as Rules of the Prosecuting agents to give a due notice of the trial date."

         [Doc. 1-3 at 22, App. 288-99.]

         A hearing was held on January 25, 2012, and Petitioner was represented at the hearing by Andrew C. Marine. [App. 300-28.] On November 27, 2012, the PCR court filed an order denying and dismissing the PCR application with prejudice. [App. 329-35.] Petitioner's PCR counsel did not move to alter or amend the judgment pursuant to Rule 59(e), S.C.R.Civ.P. A notice of appeal was timely filed and served. [Doc. 29-8.]

         Katherine H. Hudgins ("Hudgins") of the South Carolina Commission on Indigent Defense filed a Johnson [4] petition for writ of certiorari on Petitioner's behalf in the Supreme Court of South Carolina, dated June 26, 2013. [Doc. 29-9.] The petition asserted the following as the sole issue presented:

Did the PCR judge err in dismissing the application for failure to state a claim cognizable under the Uniform Post-Conviction Procedure Act when petitioner alleged that trial counsel was ineffective in stipulating rather than challenging the chain of custody for the State's DNA evidence?

         [ Id. at 3.] Hudgins also submitted a petition to be relieved as counsel. [Doc. 29-9 at 8.]

         Petitioner then filed a pro se petition, dated September 10, 2013, alleging the following issues[5]:

1) Did the PCR judge erred in dismissing the application without first determine that the matters that was pending before the Court of General Session had been resolved concerning a motion for new trial.
2) Counsel was ineffective in failing to move for new trial after sentence was imposed.
3) Trial counsel was ineffective for stipulating to the chain of custody for the DNA evidence.

         [Doc. 29-10.]

         The court denied the petition and granted counsel's request to withdraw on February 23, 2015 [Doc. 29-11] and remitted the matter ...


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