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Housey v. Warden, Lieber Correctional Institution

United States District Court, D. South Carolina

August 23, 2016

Dwayne Housey, #328012, Petitioner,
v.
Warden, Lieber Correctional Institution, Respondent.

          Dwayne 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 Office.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST, Magistrate Judge.

         Petitioner 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. § 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. 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 granted.

         I. Background

         Petitioner 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.[1] 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.

         On 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. 25-10.

         II. Procedural History

         Petitioner 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 813.
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 ...

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