Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gainey v. Cartledge

United States District Court, D. South Carolina

September 30, 2016

Louis Gainey, Jr., #185519, Petitioner,
v.
Warden Leroy Cartledge, Respondent.

          ORDER

          Bruce Howe Hendricks United States District Judge

         This 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.

         BACKGROUND

         Petitioner 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.

         Appellate Defender Katherine Hudgins represented Petitioner on direct appeal, filing an Anders brief raising the following issue:

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 On February 1, 2012, the South Carolina Court of Appeals dismissed Petitioner's appeal in an unpublished opinion.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.

         (ECF No. 27-4.)

         On July 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 wound was.
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 fast.

(R. at 432, 438, 443, 451, 453, and 457.)

         Petitioner, 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 full.[1]

         PCR 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.)

         In the 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. Const.s.
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.)

         On May 7, 2014, the Honorable Robert E. Hood issued a conditional order of dismissal, [2] 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.)

         On August 17, 2015, Petitioner filed the instant habeas corpus petition, raising the following grounds for relief, quoted verbatim:

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 PRESENTED:
(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.
GROUND THREE:
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.)

         STANDARDS OF REVIEW

         I. The Magistrate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.