United States District Court, D. South Carolina, Florence Division
ERIC A. SUMTER, #278658, Petitioner
WARDEN, LIEBER CORRECTIONAL, INSTITUTION, Respondent.
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge
Eric A. Sumter, filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. §
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” and generally
reasserts claims raised in his petition.
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.
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.
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 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).
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
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.)
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
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
10(c) Trial counsel failed to object to the solicitor leading
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
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
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).
State filed its Return on November 1, 2013, and requested 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
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).
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 ...