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Palmer v. Reynolds

United States District Court, D. South Carolina

September 27, 2016

Dexter Palmer, Petitioner,
v.
Cecilia Reynolds, Respondent.

          OPINION AND ORDER

          Margaret B. Seymour, Senior United States District Judge

         Petitioner Dexter Palmer is an inmate in custody of the South Carolina Department of Corrections. Petitioner currently is housed at the Lee Correctional Institution in Bishopville, South Carolina. Petitioner, proceeding pro se, filed a petition for writ of habeas corpus on June 29, 2015, alleging that he is being detained unlawfully. See 28 U.S.C. § 2254.

         I. BACKGROUND

         At the time of the underlying events, Petitioner and his nephew were living in the Clio section of Marlboro County, South Carolina. According to the nephew, Petitioner and Travis Gallishaw, the victim, went into Petitioner's residence the morning of February 28, 2005. The victim was sitting in the front room while Petitioner went to another room, left the residence, came back into the residence, went to another room, and then came into the room where the victim was sitting. Petitioner, with two guns drawn, indicated to the victim, “Where is my money?” Petitioner shot the victim, who commenced pleading for his life. Petitioner pistol whipped the victim and then choked and killed the victim. Petitioner and his nephew dumped the victim's body near an abandoned road off of Dunbar Highway in Marlboro County. The victim's body was found on March 18, 2005, by realtors viewing the property for sale by the owner. The identity of the victim was made from his fingerprints by the South Carolina Law Enforcement Division (SLED). Further investigation developed leads to Petitioner. A search warrant was obtained for Petitioner's residence and vehicle, which yielded evidence of the victim's presence. In addition, Petitioner's nephew gave a detailed statement to law enforcement, which information was corroborated by a polygraph examination. Petitioner was charged with murder and carrying a pistol. ECF No. 18-1, 15-18.

         Based on the nephew's statements, Petitioner also was charged in Dillon County, South Carolina, with two counts of armed robbery, two counts of possession of a deadly weapon during a violent crime, and assault and battery with intent to kill, which charges arose out of two robberies of a convenience store on Oakland Road on January 29, 2005 and February 15, 2009. Both incidents were captured on videotape but Petitioner and his nephew could not be identified because they wore masks.

         During the first incident, Petitioner entered the convenience store with his nephew. Petitioner fired a couple of shots, the nephew got money out of the register, and they left the premises. During the second incident, Petitioner and his nephew again entered the convenience store. When the cashier attempted to run to the back of the store, Petitioner shot her in the leg. The nephew took cash from the register and both men departed.

         Because of cooperation between the Marlboro County Sheriff's Office and the Dillon County Sheriff's Office, all the cases were resolved simultaneously ECF No. 18-1, 54-57.

         Petitioner appeared before the Honorable James E. Lockemy on October 17, 2005, with respect to the Dillon County charges. Petitioner was represented by Wade Crow, Esquire. The solicitor, Kernard E. Redmond, Esquire, informed the court that, as the result of plea negotiations, the state was recommending twenty-five year sentences as to the armed robbery counts. The solicitor informed Judge Lockemy that he had offered Petitioner a plea agreement in Marlboro County to voluntary manslaughter with a concurrent twenty-five year term of incarceration if he agreed to cooperate and provide information regarding other matters. Id. at 37. Judge Lockemy, after expressing concerns that the parties lacked a written agreement regarding the Marlboro County murder charge, sentenced Petitioner to twenty-five years incarceration each as to the armed robbery counts; ten to twenty-two years incarceration as to the assault and battery with intent to kill count; and five years incarceration each as to the possession of a deadly weapon during a violent crime counts, all sentences to run concurrently. Id. at 61.

         Petitioner did not appear for sentencing on the murder charge until December 6, 2010, when he was brought before the Honorable J. Michael Baxley. Petitioner was represented by Emily Crayton, Esquire of the public defender's office. The solicitor, Mr. Redmond, informed Judge Baxley that the state had served on Petitioner a notice of intention to seek life without the possibility of parole (LWOP) on September 23, 2010. The solicitor indicated that the parties had agreed to a “day-per-day” thirty-year sentence to murder. Judge Baxley conducted a thorough colloquy with Petitioner. Petitioner stated that he understood he was pleading to a charge that, if the court were to accept the recommendation, would result in a sentence of thirty years for murder, to be served day-per-day. Id. at 10. Judge Baxley continued:

THE COURT: This decision to enter this guilty plea, is it yours or is it someone else's?
MR. PALMER: It's mine.
THE COURT: Has anyone tried to force you to do this?
MR. PALMER: No, sir.
THE COURT: Do you have any family members that you have consulted with about this?
MR. PALMER: No, sir.
THE COURT: And, again, then you are telling me this has been yours and no one else's?
MR. PALMER: Yes, sir.
THE COURT: So, are you telling me that this is your voluntary decision that you, yourself, have made to enter this guilty plea?
MR. PALMER: Yes, sir.
THE COURT: All right. And, I want to ask you about Ms. Crayton's services. Are you satisfied with your lawyer's services[?]
MR. PALMER: Yes, sir.
THE COURT: Do you believe that they have appropriately investigated this matter, and you have had the benefit of their investigation?
MR. PALMER: Yes, sir.
THE COURT: All right, sir. Do you have any complaints about the way they have represented you, because if you do, now would be the time to tell me.
MR. PALMER: None whatsoever.

Id. at 13-14.

         After hearing from the victim's family members, who consented to the plea agreement, the court sentenced Petitioner to thirty years incarceration, to be served concurrently with the sentences Petitioner was serving from the Dillon County offenses. Id. at 26. Petitioner did not file a direct appeal of his guilty plea or sentence.

         On June 1, 2011, Petitioner filed an application for post-conviction relief (PCR). Petitioner asserted that he received ineffective assistance of counsel with respect to his guilty plea to murder. Petitioner asserted that he had cooperated with law enforcement but was not given the benefit of a twenty-five year plea to voluntary manslaughter. Id. at 79-94.

         The Honorable R. Ferrell Cothran, Jr. held a hearing on Petitioner's PCR application on July 16, 2013. Petitioner testified, under questioning from his PCR counsel, that he had complied with the terms of the plea agreement to voluntary manslaughter referenced at his hearing before Judge Lockemy. Id. at 117. Petitioner testified that Mr. Crow was relieved as counsel on or about February 5, 2007. Id. at 121. Petitioner stated he did not speak to another attorney regarding the Marlboro County charge until approximately two weeks after being served with the state's notice of seeking life without the possibility of parole. Petitioner testified that he was brought to the courthouse and believed he was going to plead to the twenty-five year sentence to voluntary manslaughter. However, a public defender told him the solicitor was not going forward with the plea agreement because the family of the victim did not want Petitioner to plead to anything but murder. Id. at 126-27.

         Petitioner testified that he first met Ms. Crayton at the jail approximately one week before his change of plea hearing before Judge Baxter. According to Petitioner:

A. Well, she was talking about me going to trial next week. I'm like, we can't go to trial next week, you don't know anything about the case. And she tells me that we can't get a continuance or anything like that, and I asked her about the plea and she supposedly got on the phone and called Mr. Redmond and he says no plea because the victim family and him got into it. They don't want me to plead to anything but murder.
Q. Okay. So then I was correct that your understanding was the state would begin the trial on December 13th a week later?
A. The Monday, yeah.
Q. Got you, okay. And that they were seeking a sentence of LWOP if they got a ...

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