United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
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.
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. 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.
Defender Katherine H. Hudgins represented Petitioner in an
Anders' 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.
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:
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
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
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
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 ...