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Lomax v. Warden, Perry Correctional Institution

United States District Court, D. South Carolina

December 19, 2016

Carius Kenta Lomax, #262660, Petitioner,
Warden, Perry Correctional Institution, Respondent.


          Kaymani D. West, United States Magistrate Judge

         Petitioner Carius Kenta Lomax (“Petitioner”) is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 31, 32. On May 24, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 33. On July 22, 2016, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment, ECF No. 38, and on August 1, 2016, Respondent filed a Reply, ECF No. 41. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 32, be granted.

         I. Background

         Petitioner is currently incarcerated in the Perry Correctional Institution (“PCI”) of South Carolina Department of Corrections (“SCDC”). ECF No. 1 at 1. In 2010, Petitioner was indicted at the July term of the Anderson County Grand Jury for trafficking in crack cocaine-10g or more, but less than 28g (2008-GS-04-1615) and possession with intent to distribute (“PWID”) hydrocodone (2008-GS-04-1611). App. 208-11.[1] Attorney Kurt Tavernier represented Petitioner in a jury trial that convened on February 2, 2009, and Assistant Solicitor Rame Campbell represented the State. App. 1. Petitioner was tried in his absence before the Honorable J.C. Buddy Nicholson, and the jury found Petitioner guilty of both charges. App. 106-07. After the jury issued the verdict, Judge Nicholson issued a bench warrant for Petitioner's arrest and sealed the sentence. App. 107. On April 7, 2009, Petitioner appeared before Judge Nicholson who unsealed Petitioner's sentence. App. 112-15. Originally, Judge Nicholson sentenced Petitioner to 20-years imprisonment for the trafficking conviction and five-years imprisonment for the PWID conviction and instructed the sentences run consecutively. App. 112. However, during the April 7, 2009 appearance and hearing, Judge Nicholson amended Petitioner's sentence to run concurrently. App. 122.

         Appellate Defender Katherine H. Hudgins represented Petitioner in an Anders'[2] appeal and briefed the following issues:

1. Did the trial court err in not specifically instructing the jury that the defendant's absence at trial may not be construed as an admission of guilt?
2. Did the trial judge err in failing to direct a verdict of acquittal for possession with intent to distribute hydrocodone when the State failed to present evidence of intent to distribute?

ECF No. 31-3. On June 14, 2011, the South Carolina Court of Appeals dismissed Petitioner's appeal and granted appellate counsel's motion to be relieved in an unpublished opinion. ECF No. 31-4. On July 1, 2011, the South Carolina Court of Appeals issued a Remittitur. ECF No. 31-5.

         II. Procedural History

         Petitioner filed an application for Post-Conviction Relief (“PCR”) on March 5, 2012 (2012-CP-04-00650). App. 125-130. Petitioner asserted the following allegations, recited verbatim, regarding his claims:

a) My attorney failed to subpoena key witness, told me to find him, tried in absentia while gone.
b) My attorney was not prepared, he did not even realize he was defending me the day of my trial.
c) Judge failed to grant a continuance which did not allow me a fair trial.

App. 127. Additionally, Petitioner alleged the following facts related to his claims:

a) I was tried in absentia after my attorney told me to leave the courthouse to find witness.
b) My attorney was not even aware of who he was representing.
c) Even after hearing how unprepared my attorney and I was, judge failed to grant continuance.

Id. Assistant Attorney General Kaelon May filed a Return on behalf of the State on August 3, 2012. App. 131-135. A PCR hearing convened on February 27, 2013, before the Honorable J. Cordell Maddox. App. 136-195. Petitioner was present and represented by Attorney Sarah G. Drawdy; Attorney John W. Whitmire appeared on behalf of the State. Id. Petitioner, trial counsel Tavernier, and Kendra Gurley, a paralegal for the public defender's office, testified during the hearing. Id. In an Order filed January 31, 2014, the PCR court denied Petitioner's PCR Application in full, based on the following findings of fact and conclusions of law:


This Court has reviewed the testimony presented at the evidentiary hearing, observed the witnesses presented at the hearing, passed upon their credibility, and weighed the testimony accordingly. Further, this Court reviewed the Clerk of Court's records regarding the subject convictions, the Applicant's records from the South Carolina Department of Corrections, the application for post-conviction relief, the transcripts and exhibits from the prior proceedings, and legal arguments of counsel. Pursuant to S.C. Code Ann. §17-27-80 (2003), this Court makes the following findings of fact based upon all of the probative evidence presented.
As a matter of general impression, this Court finds counsel and Gurley's testimonies to be credible and Applicant's testimony not credible. This Court finds it was manifestly clear Applicant understood his trial had commenced when he knowingly decided to voluntarily abandon his defense. See State v. Patterson, 367 S.C. 219, 230, 625 S.E.2d 239, 244 (Ct. App. 2006) (“[A] defendant may be presumed to waive or forfeit the right to be present by misbehaving in the courtroom or by voluntarily remaining away from trial.”). Even Applicant's testimony on the matter was inconsistent. In comparison, counsel and Gurley fully detailed their interactions on February 2, 2009. This Court finds counsel exercised reasonable discretion in sending Applicant to locate Geer as a result of circumstances created by Applicant. This Court finds counsel's reputation and experience in representing clients facing narcotics charges to be high regarded and was apparent in the manner counsel made strategic decisions in investigating, preparing, and presenting Applicant's defense. This Court finds that although Applicant presented no credible evidence that showed he suffered any prejudice from counsel's representation, any possible detriment was borne from Applicant's conduct and actions. The duty to communicate, conduct a reasonable investigation, and prepare are predicated and judged upon a defendant's conduct. Because Applicant was released on bond, he has responsibility to attend scheduled appointments, ensure his contact information was accurate, and aid counsel in the representation. This Court finds Applicant's failure on the above mentioned were unequivocal. See Strickland, 466 U.S. at 681, 104 S.Ct. at 2061 (“The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.”).
This Court finds Applicant's allegation that counsel was ineffective for failing to investigate the State's evidence is without merit. “Moreover, while the scope of a reasonable investigation depends upon a number of issues, “at a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. Ard v. Catoe, 372 S.C. 318, 331-32, 642 S.E.2d 590, 597 (2007) (emphasis supplied). This Court finds counsel's testimony on the matter credible and convincing. Counsel adequately investigated incident reports and the lab reports obtained by his discovery motion for a possible suppression defense. Addressing Applicant's more enunciated allegation that counsel was ineffective for failing to investigate possible fingerprint evidence, this Court finds it to is without merit. First, this Court finds counsel's trial strategy here valid. Counsel made a reasonable decision to elicit testimony from State witnesses at trial that the absence of fingerprint lifts on the vehicle's relevant compartments showed the possibility that Geer planted the narcotics could not be disproved. See Strickland, 466 U.S. at 681, 104 S.Ct. at 2061 (“Those strategic choices about which lines of defense to pursue are owed deference commensurate with the reasonableness of the professional judgments on which they are based.”) Second, Applicant failed to present credible evidence to show what beneficial impact the purported investigation would have had in his defense. Thus, the allegations rest on mere speculation. See Porter v. State, 368 S.C. 378, 385-86, 629 S.E.2d 353, 357 (2006), (“Failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to result.” Therefore, these allegations are denied and dismissed.
This Court finds Applicant's allegations that counsel was ineffective for failing to subpoena Geer to testify on Applicant's behalf at trial is without merit. This Court finds counsel's testimony credible and convincing. “So long as a defendant's attorney conducts a reasonable investigation, including interviewing potential witnesses when it is reasonable to do so, his performance will not be deficient.” Edwards v. State, 392 S.C. 449, 457, 710 S.E.2d 60, 65 (2011). This Court finds counsel had a valid and strategic reason for not producing Geer as a witness at trial. Counsel interviewed the arresting officers as to Geer's involvement and criminal history. Geer was charged with a misdemeanor unrelated to narcotics use or transactions. Counsel determined Geer did not have familial or substantial personal connection to the Applicant that could have indicated he would have been willing to forgo his own interests. Thus, this Court finds counsel's reasoning valid to stray from involving Geer in Applicant's case where the substantial detriment of calling him as a witness outweighed any foreseeable benefit. See Stokes v. State, 308 S.C. 546, 548, 419 S.E.2d 778, 779 (1992) Applicant waited until the morning of his trial to convey his knowledge of Geer's alleged intention to exculpate Applicant. See Strickland v. Washington, 466 U.S. at 681, 104 S.Ct. at 2061 (“[C]ounsel's investigatory decisions must be assessed in light of the information known at the time of the decisions.”).
Regardless, Applicant failed to produce testimony from Geer on the matter. See Glover v. State, 318 S.C. 496, 458 S.E.2d 538 (1995) ([Applicant's allegations, alone, will not support a finding of prejudice when applicant claims counsel was ineffective for failing to investigate witnesses; instead, applicant must show the results of an investigation would have resulted in a different outcome at trial). Therefore, this allegation is denied and dismissed.
Last, this Court summarily dismisses Applicant's allegation that counsel was ineffective for failing to move for a continuance at an earlier juncture in the trial. Applicant contends he would never have been tried in absentia had counsel made the motion before he left to find Geer. This Court finds counsel's testimony credible and Applicant's testimony not credible. This Court finds a defense attorney is under no duty to make strategic decisions in anticipation that a defendant might decide to ignore a directive and condition of bond to the detriment of the presentation of his defense. Regardless, this Court finds counsel could not have foreseen that Applicant would not return and flee. Despite Applicant's hubris in neglecting to meet and discuss his case with counsel, he did however testify he attended his prior court appearances. See Thorne v. State, 310 S.C. 306, 309-10, 426 S.E.2d 764, 765 (1993) (This Court has never required an attorney to anticipate or discovery changes in the law, or facts which did not exist, at the time of trial.). Therefore, this allegation is denied and dismissed.
Except as discussed above, this Court finds that the Applicant affirmatively abandoned the remaining allegations set forth in his application at the hearing. A waiver is a voluntary and intentional abandonment or relinquishment of a known right. Janasik v. Fairway Oaks Villas Horizontal Property Regime, 307 S.C. 339, 415 S.E.2d 384 (1992). A waiver may be express or implied. “An implied waiver results from acts and conduct of the party against whom the doctrine is invoked from which an intentional relinquishment of a right is reasonably inferable.” Lyles v. BMI, Inc., 292 S.C. 153, 158-59, 355 S.E.2d 282 (Ct. App. 1987). The Applicant's failure to address these issues at the hearing indicates a voluntary and intentional relinquishment of his right to do so. Therefore, any and all remaining allegations are denied and dismissed.
Based on all the foregoing, this Court finds and concludes that the Applicant has not established any constitutional violations or deprivations that would require this Court to grant his application for post-conviction relief. Therefore, this application for post-conviction relief must be denied and dismissed with prejudice.
This Court notes that Applicant must file and serve a notice of intent to appeal within thirty (30) days from receipt of this Order to secure the appropriate appellate review. See Rule 203, SCACR. Rule 71.1(g), SCRCP; Bray v. State, 336 S.C. 137, 620 S.E.2d 743 (2005), for the obligation of Applicant's counsel to file and serve a notice of appeal. The Applicant's attention is also directed to South Carolina Appellate Court Rule 243 for appropriate procedures after notice has been timely filed.


1. That the Application for Post-Conviction Relief must be denied and dismissed ...

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