United States District Court, D. South Carolina
Housey, Petitioner, Pro Se.
Warden, Lieber Correctional Institution, Respondent,
represented by Susannah R. Cole, S.C. Attorney General's
Office & Donald John Zelenka, S.C. Attorney General's
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Dwayne Housey ("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. 25, 26. On June 16, 2016, pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Petitioner of the Summary Judgment Motion, dismissal
procedures, and the possible consequences if he failed to
respond adequately to Respondent's Motion. ECF No. 27. On
July 7, 2016, Petitioner filed a Response in Opposition to
Respondent's Motion for Summary Judgment, ECF No. 29, and
on July 18, 2016, Respondent filed a Reply, ECF No. 30.
Having carefully considered the parties' submissions and
the record in this case, the undersigned recommends that
Respondent's Motion for Summary Judgment, ECF No. 26, be
is currently incarcerated in the Lieber Correctional
Institution ("LCI") of the South Carolina
Department of Corrections ("SCDC"). ECF No. 1. In
2007, Petitioner was indicted at the November term of the
York County Grand Jury for trafficking cocaine
(2007-GS-46-02626). App. 744-45. John Delgado, Esq.,
represented Petitioner in a jury trial that convened on April
21, 2008, before the Honorable Lee S. Alford. App. 5-665.
After the trial, the jury found Petitioner guilty on the
trafficking charge. App. 660. Judge Alford sentenced
Petitioner to twenty-five years' imprisonment for the
conviction. Id. at 664.
April 25, 2008, trial counsel Delgado filed a Notice of
Appeal on Petitioner's behalf. ECF No. 25-4. On November
19, 2008, attorney Delgado wrote a letter to the Court of
Appeals explaining that though he had filed a Notice of
Appeal on Petitioner's behalf, he did not plan to
represent Petitioner in the appeal, and he understood that
Petitioner "was planning to hire another attorney to
handle his appeal." ECF No. 25-5. On December 3, 2008,
Attorney Delgado filed a motion to be relieved as counsel in
Petitioner's appeal. ECF No. 25-6. Ultimately, Deputy
Chief Appellate Defender Wanda H. Carter represented
Petitioner on direct appeal. ECF No. 25-7. In his brief,
Petitioner raised and argued the following issue: "The
trial judge erred in allowing excessive conspiracy testimony
into evidence in support of the trafficking charge because
this was prejudicial character evidence which held no
probative value." Id. at 4. Assistant Attorney
General Deborah R.J. Shupe filed the Response Brief on behalf
of the State. ECF No. 25-8. On January 25, 2011, the South
Carolina Court of Appeals affirmed Petitioner's
conviction and sentence in an unpublished opinion, State
v. Housey, 2011-UP-026. ECF No. 25-9. On February 10,
2011, the court of appeals issued a Remittitur. ECF No.
filed an application for Post-Conviction Relief
("PCR") on April 4, 2011 (2011-CP-46-1261),
alleging ineffective assistance of trial counsel and
maintaining that trial counsel failed to object to
prosecutorial misconduct. App. 666-675 (see page one of
Return for date of filing). Specifically, Petitioner alleged,
verbatim, that "counsel failed to know the law of the
case and make proper objection's to a improper jury
argument." App. 667. The State filed a Return to
Petitioner's Application on September 14, 2011. App.
675-679. Thereafter, Petitioner filed an Amended Application
for PCR on May 3, 2012, alleging, "Ineffective
Assistance of Trial Counsel including, but not limited to,
failure to call a witness, failure to investigate, failure to
object to evidence, failure to move for a mistrial."
App. 682. Additionally, Petitioner alleged that "Trial
Counsel failed to object to prosecutorial misconduct."
Id. On May 7, 2012, a PCR hearing convened before
the Honorable John C. Hayes, III. App. 686-736. Petitioner
was represented by Brian Murphy, Esq., and Assistant Attorney
General J. Rutledge Johnson, appeared on behalf of the State.
See id. Trial Counsel John Delgado, witnesses
Cassandra Scott and Detra Wright, and Petitioner testified
during the hearing. See id. In an Order of Dismissal
filed May 10, 2012, the PCR court denied Petitioner's PCR
Application in full, making the following findings of fact
and conclusions of law:
In a post-conviction relief proceeding, the Applicant bears
the burden of proving the allegations in his Application.
Id . 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, 334 S.E.2d
The proper measure of performance is whether the attorney
provided representation within the range of competence
required in criminal cases. The courts presume that counsel
rendered professional judgment. Strickland, 80
L.Ed.2d 674. The Applicant must overcome this presumption in
order to receive relief. Cherry v. State, 300 S.C.
115, 386 S.E.2d 624 (1989).
A two-pronged test is used 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, 386 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,
386 S.E.2d at 625.
Applicant called as his first witness his trial counsel, John
Delgado (trial counsel). Trial counsel testified the trial of
Applicant hinged to a degree on the testimony of his
co-defendant, Jemyle Wilson (Wilson). Wilson had been placed
on trial at an earlier time, but his trial was mistried.
Thereafter, and before Applicant's trial, Wilson pled and
agreed to testify against Applicant.
A second adverse issue testified to by trial counsel was a
taped telephone call to a confidential informant. The
conversation in the taped call was indicative of a drug
transaction. Applicant denied the voice was his. However, the
voice on the incriminating tape was identified by a witness,
Alicia Ellis, to be that of Applicant. (Trial Transcript p.
379, LL 8-9).
The mistrial issue pivots on the testimony of the State's
witness, State Law Enforcement Division Agent, Jack Rushing
(Rushing). Rushing testified that he recognized
Applicant's name in regard to a drug investigation.
"Because I... actually have friends in law enforcement
that knew who Mr. Housey was." (Trial Transcript p. 172,
LL 4-11). Immediately following the quoted statement, trial
counsel asked to approach the bench, the jury was excused,
and the Court held a colloquy with trial counsel and the
Solicitor. As a result of said colloquy, and even though
trial counsel thought the testimony was prejudicial and
considered asking for a mistrial, he chose not to do so.
Trial counsel testified that he determined not to move for a
mistrial because to do so in front of the jury, when the
trial judge had made it clear such motion would not be
granted, would give the offending statement an emphasis which
could adversely impact Applicant's case. Additionally,
trial counsel testified the Rushing statement was not a high
priority issue. Trial counsel also thought a curative
instruction by the Court would only emphasize the statement
and focus the jury's memory on the testimony. In
addition, trial counsel testified it was his desire to focus
on the credibility of the State's witnesses, Catherine
Goodwin and Alicia Ellis. Trial counsel testified that he
felt the credibility issue as to these witnesses was
important, and that repeating and clarifying Rushing's
statement would not have helped Applicant's defense.
Trial counsel testified he did not call any witnesses on
Applicant's behalf. Applicant claims two witnesses,
Cassandra Scott and Dezra Wright, should have been placed on
the stand. Trial counsel testified that, because Applicant
was not going to testify, preserving the right to final
argument outweighed calling the two witnesses to testify on
Applicant's behalf. Additionally, one of the State's
witnesses, Alicia Ellis, had an extensive prior record, which
opened her up to impeachment. Also, the co-defendant's
credibility was challenged by the use of a letter, the plea
deal, and prior inconsistent statements.
As to the issue of flight, it appears from the testimony
that, after his arrest in Atlanta and while being transported
to South Carolina, Applicant explained his leaving South
Carolina was because "I did not want to go to
jail." Trial counsel testified that he had made a motion
in limine to preclude evidence of flight, which the trial
judge denied. Trial counsel testified that he also entered a
cotemporaneous objection to the evidence of flight but, after
a discussion outside the presence of the jury, withdrew the
objection. Trial counsel testified that he did not want
evidence of a prior conviction to come into the record. At
the time of the arrest of Applicant, there was an outstanding
warrant for Applicant's arrest for violation of
probation. This, according to trial counsel, created a double
edged sword. Flight based on the probation warrant could
mitigate flight based on the drug charges at issue at trial.
However, the fact that Applicant was on probation would
establish for the jury that Applicant had a prior record.
Finally, Trial counsel testified the State had significant
evidence of Applicant's guilt and wisdom dictated
Applicant enter a plea. However, Applicant was adamant that
he wanted a trial.
The Applicant called Cassandra Scott (Scott) as a witness.
Scott testified she had been a close friend of Applicant for
many years. Scott's testimony appears to the Court to be
of little value on the issues at trial. Scott simply
testified she knew both Wilson and Applicant, that she was
with Applicant at the time of Wilson's arrest, that she
never saw Applicant deal in drugs, that there was animosity
between Wilson and Applicant over a female, that Wilson told
her that Applicant was not "involved, " and that
Wilson was trying to be a big shot by making an ostentatious
show of having lots of money even though he had no job. The
only possible value flowing from Scott's testimony would
be that Wilson told her Applicant was not
"involved" and perhaps to establish some motive for
Wilson to lie based on the conflict about the female.
Scott also testified the State's witness, Ellis, was a
"drama queen" and she had a grudge against
Applicant. Of course, Scott's testimony regarding Ellis
was influenced by Scott's belief that Ellis had stolen a
shirt from her.
On cross examination, Scott testified that while she never
saw Wilson sell drugs, she saw him with drags and saw him
receive telephone calls and then leave and return shortly
thereafter. She testified she never saw Applicant with drugs,
but did not know if Applicant had made the phone calls
produced at trial.
Applicant also called Dezra Wright (Wright) as a witness.
Wright testified she knows Applicant and that she was with
Wilson on the day he was arrested. She testified that, on
that day, she had ridden with Wilson to Columbia, that Wilson
did not talk to Applicant by telephone on the trip to
Columbia, and that Wilson never mentioned Applicant.
The right to the last closing argument in a criminal case is
universally considered to be a significant and powerful tool
in a defendants' arsenal. There are legions of cases in
which the strategy of preserving the right to the last
closing argument is discussed, absent some quirk in ...