United States District Court, D. South Carolina
Howe Hendricks United States District Judge
matter is before the Court on Petitioner Louis Gainey, Jr.
(“Gainey” or “Petitioner”) pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In accordance with 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.),
the matter was referred to a United States Magistrate Judge
for initial review. On May 23, 2016, Magistrate Judge Kaymani
D. West filed a Report and Recommendation
(“Report”), outlining the issues and recommending
that the Court deny Petitioner's motion to stay and grant
Respondent's motion for summary judgment. Petitioner
filed written objections to the Report, a motion to stay, and
a motion to amend. After Respondent filed responses in
opposition to Petitioner's filings, Petitioner filed
replies, and the matters raised therein are ripe for review.
is incarcerated at the McCormick Correctional Institution of
the South Carolina Department of Corrections
(“SCDC”). In 2007, the Richland County Grand Jury
indicted Petitioner for assault and battery with intent to
kill (“ABWIK”). Petitioner, who was represented
by attorneys James D. Cooper and Earnest Dean O'Neil,
proceeded to a jury trial from September 1 to September 3,
2007, before the Honorable L. Casey Manning. The jury
convicted Petitioner, and Judge Manning sentenced him to life
in prison without the possibility of parole.
Defender Katherine Hudgins represented Petitioner on direct
appeal, filing an Anders brief raising the following
Did the trial judge err in charging the jury that malice may
be inferred from the use of a deadly weapon where there was
evidence presented that would reduce the charge from assault
and battery with intent to kill to assault and battery of a
high and aggravated nature?
(R. at 413; ECF No. 27-2 at 107.) On February 1, 2012, the
South Carolina Court of Appeals dismissed Petitioner's
appeal in an unpublished opinion. (R. at 420-21; ECF No. 7-2
at 421.) On June 26, 2012, the South Carolina Court of
Appeals issued a remittitur.
6, 2012, Petitioner filed an application for post-conviction
relief (“PCR”), raising the following grounds,
taken verbatim from his memorandum in support:
1. Trial counsel prejudice defendant failure request for a
second mental evaluation opinion to deter if the defendant
was incompetency to stand trial. Violation 6th Amendment
& 14th Amendment due process of law.
2. Trial counsel prejudice the defendant by failing to object
to the defendant been seen in front of the jury member eyes
with shackles on in the witness stand so prejudice to a fair
trial by the member of jury.
3. Trial counsel prejudice defendant for failing to prepare
and to conduct a proper pre-trial investigation.
4. Counsel prejudice Applicant failure to object to state
closing when solicitor stated you see how large the stab
5. Trial counsel prejudice the Applicant failing to object to
the malice charge violation 6th Amendment.
6. Counsel prejudice the Applicant failure to object when the
first officer at the seen stated that I ran by his car so
(R. at 432, 438, 443, 451, 453, and 457.)
who was represented by attorney David E. Belding, appeared at
a PCR hearing on January 15, 2013, before the Honorable
Thomas G. Cooper. Petitioner, his two trial attorneys, and
Petitioner's brother testified as witnesses during the
PCR hearing. In an order filed on March 8, 2013, the PCR
court denied Petitioner's PCR application in
counsel filed a notice of appeal on Petitioner's behalf
on March 15, 2013. (ECF No. 27-5.) On appeal, Appellate
Defender Susan B. Hackett filed a Johnson petition
for a writ of certiorari on Petitioner's behalf. (ECF No.
27-6.) The South Carolina Supreme Court denied the appeal on
October 8, 2014, and a remittitur was sent on October 24,
2014. (ECF No. 27-7.)
meantime, Petitioner filed a second PCR application on
October 29, 2013, arguing:
a) Ineffective assistance of PCR counsel.
b) Violation of the 14th Amend. per U.S. and S.C. Const.s.
c) Violation of the 6th and 14th Amend. per U.S. and S.C.
d) After/Newly discovered evidence.
(ECF No. 27-8 at 2.) The State filed a return on April 15,
2014, asserting that Petitioner's second PCR action
should be dismissed as successive. In addition, the State
argued that the second PCR application should be dismissed
based on the doctrine of res judicata and because
Petitioner failed to comply with the filing procedures of the
Uniform Post-Conviction Procedure Act. (ECF No. 27-9 at 4.)
7, 2014, the Honorable Robert E. Hood issued a conditional
order of dismissal,  denying and dismissing the action, and on
July 1, 2014, after Petitioner failed to respond to the
conditional order, Judge Hood issued a final order of
dismissal. (ECF No. 27-10.) On July 16, 2014, Petitioner
filed a Rule 59(e) motion requesting that the PCR court alter
and amend its final order of dismissal. On June 19, 2015,
however, Judge Hood issued an amended final order of
dismissal, denying Petitioner's motion to alter or amend.
(ECF No. 27-12.) Petitioner did not appeal Judge Hood's
amended final order of dismissal but instead filed a
“reply” to the order. (ECF No. 27-13.)
August 17, 2015, Petitioner filed the instant habeas corpus
petition, raising the following grounds for relief, quoted
GROUND ONE: The trial just erred in charging the jury that
malice may be inferred from the use of a deadly weapon where
there was evidence presented that would reduce the charge
from assault and battery with intent to kill to assault and
battery of a high and aggravated nature.
GROUND TWO: In violation of Petitioner's right to the
effective assistance of counsel pursuant to the Sixth and
Fourteenth Amendments to the United States Constitution,
trial counsel failed to object to the trial judge's
instruction to the jury which permitted the jury to infer
malice from the use of a deadly weapon in order to convict
him of assault and battery with intent to kill ISSUES
(1) Whether the PCR court errored in ruling that trial
counsel was not ineffective in failing to object to
Petitioner being seen in shackles.
(2) Whether the PCR court errored in ruling that trial
counsel was not ineffective in failing to have a second
mental evaluation conducted.
(3) Whether the PCR court errored in ruling that trial
counsel was not ineffective in failing to investigate the
matters of the nail file vs. screwdriver.
(4) Whether the PCR court errored in ruling that trial
counsel was not ineffective in failing to object to the
judge's instruction to the jury which permitted the jury
to infer malice from the use of a deadly weapon in order to
convict him of assault and battery with intent to kill.
Violation of the 6th and 14th Amend per U.S. and S.C. Const.
(1) The Applicant further argues that if this court deem that
Applicant current P.C.R. and grounds is barred . . . for any
reason(s) Applicant argue that S.C. Const. and S.C. Uniform
Post-Conviction Procedure Act itself violates the 6th and
14th Amend. per the Fed./U.S. Const.
GROUND FOUR: After/Newly Discovered Evidence Applicant argues
that after his P.C.R. hearing he found out that SCDC per Dir.
of H.I.R. Nadine Pridgen that S.C.D.C. does not have
“any” of his mental health records from 91-98.
(ECF No. 1-1 at 1, 3, 11-12, 60-61, and 66.)
The Magistrate ...