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Bolin v. Warden, Lee Correctional Institution

United States District Court, D. South Carolina, Charleston Division

September 29, 2016

BERRY SCOTT BOLIN, #290062, Petitioner,
v.
WARDEN, Lee Correctional Institution, Respondent.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This matter is before the court on Magistrate Judge Thomas E. Rogers, III's Report and Recommendation (“R&R”) that this court grant respondent Warden of Lee Correctional Institution's (“Respondent”) motion for summary judgment and deny petitioner Berry Scott Bolin's (“Petitioner”) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the court adopts the R&R, denies the petition, and grants respondent's motion for summary judgment. Additionally, the court adopts those portions of the R&R which are not inconsistent with this Order.

         I. BACKGROUND[1]

         Petitioner was convicted of voluntary manslaughter, assault and battery of a high and aggravated nature, and discharging a weapon into an occupied vehicle after a jury trial from August 28, 2006 to September 6, 2006. He was sentenced to thirty years confinement for the voluntary manslaughter conviction and to ten years confinement for each of the remaining charges of assault of a high and aggravated nature and discharging a firearm, to be served concurrently. He was also ordered to pay $31, 000 in restitution. Petitioner filed a timely appeal, and the South Carolina Court of Appeals affirmed his conviction and sentence on February 5, 2009. On February 1st, 2010, petitioner filed an application for post-conviction relief (“PCR”) in state circuit court, originally setting forth two specific claims of ineffective assistance of counsel and later amending to add four additional claims of ineffective assistance for a total of six claims of ineffective assistance of counsel. The PCR judge denied the requested relief on January 7, 2014. Petitioner's Rule 59(e) motion to alter or amend the judgment of the PCR court was denied on February 6, 2014. The South Carolina Supreme Court denied petitioner's writ of certiorari on March 8, 2015, and issued its remittur on April 3, 2015.

         Petitioner filed the present writ of habeas corpus in this court on April 8, 2015, raising the following eleven grounds for relief:

Ground One: Petitioner's right to effective assistance of counsel at the trial stage, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, was violated in the trial court when Trial counsel failed to call several witnesses who were present at the scene who would have testified that they saw gunfire coming from the alleged victims' automobile. Counsel also allowed the State the last closing argument.
Ground Two: Petitioner's right to effective assistance of counsel at the trial stage, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, was violated in the trial court when trial Counsel failed to obtain surveillance videotape from the location where the alleged victims stopped their vehicle on their way to the police station.
Ground Three: Petitioner's right to effective assistance of counsel at the trial stage, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, was violated in the trial court when trial Counsel was deficient in adequately advising Petitioner to accept the guilty plea offer of 15 years for manslaughter. Trial Counsel was also deficient in getting the plea offer reinstated after the trial judge ruled that the “Castle Doctrine” statute was inapplicable.
Ground Four: The PCR court erred when it denied petitioner's request to conduct an in-camera review of materials withheld by the state in violation of the Sixth and Fourteenth Amendments under the work-product privilege.
Ground Five: The PCR court erred when it denied petitioner's request to amend his post-conviction relief application to conform the pleadings to the evidence presented in the evidentiary hearing, including that the state elicited false testimony from a witness and that trial counsel was ineffective in failing to mention police station video proving that a witness lied.
Ground Six: Trial counsel was deficient in failing to request a new jury or a curative jury instruction after the petitioner's co-defendant pled guilty after being introduced to the jury.
Ground Seven: Petitioner right to a fair trial, as guaranteed by the Fourteenth Amendment to the United States Constitution and the South Carolina constitution, was violated when the state elicited false testimony from Holly McCarter, failed to correct it, and argued it to the jury.
Ground Eight: Petitioner's right to effective assistance of counsel at the trial stage, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, was violated when trial counsel failed to raise that Holly McCarter was not driving the vehicle that arrived at the Clover Police Department during trial, thus undermining the defense argument.
Ground Nine: Petitioner's right to effective assistance of counsel at the trial stage, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, was violated when trial counsel failed to ascertain that the “Castle Doctrine” statute was inapplicable in this case.
Ground Ten: Petitioner's right to effective assistance of counsel at the trial stage, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, was violated when trial counsel failed to ask for a new jury or a curative instruction after the petitioner's co-defendant pled guilty after being introduced to the jury.
Ground Eleven: Petitioner's right to effective assistance of counsel at the trial stage, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, was violated when trial counsel failed to challenge the trial court's imposition of restitution without addressing relevant statutory factors.

See ECF No. 1, Ex. 1 at 1-13.

         Respondent filed a motion for summary judgment on September 4, 2015. The court granted petitioner's request for an extension of time to file a response in opposition to the summary judgment motion on October 13, 2015. Petitioner filed a response in opposition to the summary judgment motion on November 13, 2015. The magistrate judge issued an R&R on April 21, 2016. The court granted petitioner's request for an extension of time to file objections to the R&R on May 3, 2016. On May 29, 2016, petitioner filed objections to the R&R and respondent filed a reply on June 16, 2016. The matter has been fully briefed and is now ripe for the court's review.

         II. ...


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