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Sumter v. Warden, Lieber Correctional, Institution

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

November 13, 2016

ERIC A. SUMTER, #278658, Petitioner
v.
WARDEN, LIEBER CORRECTIONAL, INSTITUTION, Respondent.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         Petitioner, Eric A. Sumter, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254[1] on March 7, 2016. (Doc. #1). Respondent filed a return and motion for summary judgment on July 14, 2016. (Docs. # 23 and # 24). As the Petitioner is proceeding pro se, the undersigned issued an order filed July 15, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #25). On August 31, 2016, Petitioner filed a traverse which the court construes as Petitioner's response to Respondent's motion for summary judgment. (Doc. # 33). In the traverse, Petitioner attempts to raise “amended claims”[2] and generally reasserts claims raised in his petition.

         I. BACKGROUND

         A. Procedural History

         Petitioner has not disputed the procedural history outlined in Respondent's motion for summary judgment. Therefore, the undersigned will set out the undisputed procedural history, in part, as set forth by Respondent.

         Petitioner is currently incarcerated in Lieber Correctional Institution in Ridgeville, South Carolina pursuant to Orders of Commitment from the Clerk of Court for Charleston County. The Charleston County Grand Jury indicted Petitioner during the October 2008 term for trafficking in cocaine (2010-GS-10-7492). Petitioner was represented by retained counsel William L. Runyon, Jr., Esquire. Assistant Solicitor Chad Simpson and Assistant Solicitor Adam Yount of the Ninth Judicial Circuit Solicitor's Office appeared on behalf of the state. Petitioner's jury trial began October 18, 2010, before the Honorable Kristi L. Harrington. At the conclusion of the trial, the jury found Petitioner guilty as charged. On October 19, 2010, Judge Harrington sentenced Petitioner to a twenty-five year term of imprisonment and imposed a fine of $50, 000.00.

         B. Direct Appeal

         A timely Notice of Appeal was served on behalf of Petitioner, and an appeal was perfected. On appeal, Petitioner was represented by Susan B. Hackett, Assistant Appellant Defender of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. On December 30, 2011, counsel for Petitioner filed an Anders[3] brief and a petition to be relieved as counsel. The Anders brief presented the following issue:

Did the trial court err in refusing to charge the jury on possession with intent to distribute cocaine as a lesser included offense of the indicted offense of trafficking cocaine in light of the police officer's testimony that over 100 grams could be a month supply for a user?

(Doc. # 23-5 at 4).

         Thereafter, Petitioner filed a pro se Anders brief, in which he argued the following:

I. Whether the judge erred in not issuing a curative instruction where the State elicited hearsay testimony from a State witness concerning an informant?
II. Whether the judge erred in allowing an expert opinion from a witness not previously qualified as an expert witness prior to testifying?
III. Whether the judge erred in qualifying a witness as an expert witness?
IV. Whether the judge abused her discretion in admitting evidence against Appellant?
V. Whether the judge abused her discretion in allowing testifying co-defendant's counsel to sit in close proximity and during and bolstering her testimony?

(Doc. # 23-6 at 6.)

         On October 10, 2012, the South Carolina Court of Appeals, in an unpublished opinion, affirmed Petitioner's conviction, dismissed the appeal, and granted appellate counsel's petition to be relieved. The remittitur was issued on October 26, 2012.

         C. PCR

         On January 3, 2013, Petitioner filed a pro se application for post-conviction relief (PCR). (Doc. # 23-2 at 92-99). In the PCR application, Petitioner argued that he was denied his Sixth and Fourteenth Amendments rights to the effective assistance of counsel insofar as:

10(A) Trial counsel failed to challenge the sufficiency of the subject indictment prior to taking of evidence in contravention of the Fifth Amendment and South Carolina Law.
11(a) Trial counsel failed to timely object to the sufficiency of the indictment which did not specifically allege the essential element of conspiracy with co-defendant Tiffany Deas, who was the person in possession of the drugs.
10(b) Trial counsel failed to move for dismissal or directed verdict where Applicant was not in possession of the drugs for which he was arrested and indicted.
11(b) Applicant was not in possession of drugs and was not charged with conspiracy as an element of the offense and counsel failed to move for directed verdict upon these deficiencies.
10(c) Trial counsel failed to object to the solicitor leading a witness.
11(c) Trial counsel did not object to the Solicitor leading the co-defendant state witness (Deas) during direct testimony to justify her knowledge of and presence at a known drug dealer's apartment where Deas was the person in possession of the drugs.
10(d) Trial counsel failed to object to the Solicitor testifying for, vouching for, and pitting witnesses.
11(d) In opening statements, the Solicitor testified as to what witnesses would say specifically; vouched for the credibility of the state's witness Tiffany Deas; and pitted the future testimony of Deas against the anticipated absence of Applicant's testimony, and trial counsel failed to object.
10(e) Trial counsel failed to object to the solicitor eliciting testimony regarding alleged prior bad acts of Applicant.
11(e) During direct examination of state witness Tiffany Deas, the Solicitor elicited testimony that implied Applicant was previously engaged in drug trafficking, which was not properly before the jury, and counsel failed to object.
10(f) Trial counsel failed to object to the Solicitor bolstering witness testimony.
11(f) During closing arguments the Solicitor bolstered the testimony of Tiffany Deas that the drugs she had in her possession were not hers, but the Applicant's; and counsel failed to object.
10(g) Trial counsel conceded the guilt of Applicant during trial thus depriving him of representation.
11(g) During his closing argument[, ] trial counsel conceded the guilt of Applicant to the jury when he told the jury Applicant was “just some wretched soul who had some cocaine, ” which negated Applicant's defense and deprived him of a fair trial.
10(h) Trial counsel failed to object or move for a directed verdict where essential elements of the state's case were not proven.
11(h) Trial counsel did not object or move for directed verdict concerning the essential elements of actual or constructive possession not being shown.

(Doc. 23-2 at 95-97).

         The State filed its Return on November 1, 2013, and requested an evidentiary hearing.

         An evidentiary hearing was held on May 20, 2014, at the Charleston County Courthouse before the Honorable Deadra L. Jefferson. (Doc.# 23-2 at 107-158). Charles T. Brooks, III, Esquire represented Petitioner and Ashleigh R. Wilson, Esquire of the South Carolina Attorney General's Office represented Respondent.

         Petitioner was present at the hearing and testified on his own behalf. William Runyon, Jr., Petitioner's trial counsel, also testified at the hearing. Judge Jefferson denied the PCR application and filed her order of dismissal on July 16, 2014. (Doc.# 23-2 at 160-177).

         D. PCR Appeal

         On July 18, 2014, Petitioner filed an appeal from the dismissal of his PCR application. (Doc. # 23-9 at 1). Tiffany L. Butler, Appellate Defender of the South Carolina Commission on Indigent Defense, Division of Appellate Defense represented Petitioner on this appeal and filed a petition for writ of certiorari on his behalf raising the following issue:

Whether trial counsel was ineffective for telling the jury in closing argument that Petitioner “bought some drugs from a big-time place, ” where Petitioner did not give counsel permission to concede that Petitioner possessed the drugs and Petitioner's defense at ...

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