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Flood v. Warden, Lieber Corr. Inst.

United States District Court, D. South Carolina

January 3, 2017

Cedric Flood, #217089, Petitioner,
v.
Warden, Lieber Corr. Inst., Respondent.

          ORDER

          Bruce Howe Hendricks United States District Judge.

         This matter is before the Court on Petitioner Cedric Flood (“Flood” 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 September 19, 2016, Magistrate Judge Bristow Marchant filed a Report and Recommendation (“Report”), outlining the issues and recommending that the Court grant Respondent's motion for summary judgment and dismiss this action with prejudice. Petitioner filed objections to the Report on September 29, 2016, and Respondent filed a reply on October 17, 2016.

         BACKGROUND

         Petitioner was indicted in Orangeburg County in February 2010 for kidnapping and criminal sexual conduct, first degree. Douglas Mellard, Esq., and Mark Wise, Esq., represented Petitioner at trial. On July 21, 2011, the jury found Petitioner guilty of kidnapping but acquitted him of criminal sexual conduct, first degree. Petitioner was sentenced to life imprisonment pursuant to S.C. Code Ann. § 17-25-45, based on his prior convictions from 1994 for kidnapping and criminal sexual conduct, second degree.

         Petitioner filed a direct appeal and was represented by Susan Hackett, Esq., of the South Carolina Commission on Indigent Defense, who raised the following issue:

Whether the trial court judge erred when he improperly coerced the jury into rendering a guilty [verdict] after sending them back to deliberate a second time, and having given them a second, coercive jury charge, after they insisted they were deadlocked, in violation of S.C. Code § 14-7-1330 (1976)?

(ECF No. 14-4 at 75.)

         On April 10, 2013, the South Carolina Court of Appeals affirmed Petitioner's conviction and sentence. State v. Flood, No. 2013-UP-140 (S.C. Ct. App. April 10, 2013). The remittitur was issued on June 5, 2013.

         On July 29, 2013, Petitioner filed an application for post-conviction relief (“PCR”). Flood v. State of South Carolina, No. 2013-CP-38-875. In his PCR application, Petitioner raised the following issues:

Ineffective Assistance of Counsel - Issue One
Trial counsel rendered the ineffective assistance of counsel in violation of [Petitioner's] rights guaranteed him by the Sixth and Fourteenth Amendments to the United States Constitution, and Article 1, §§ 3 and 14 of the South Carolina State Constitution for his failure to object to a coercive supplemental charge being given to the jury, after the jury advised the trial judge that they could not reach a unanimous decision on either charge, and after the trial judge had given an Allen charge.
Ineffective Assistance of Counsel - Issue Two
Trial counsel rendered the ineffective assistance of counsel in violation of [Petitioner's] rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, § 3 and 14 of the South Carolina State Constitution for failing to object to the trial judge not comporting with South [Carolina] Code § 14-7-1330 (1976).

(ECF No. 14-3 at 177.) Jonathan D. Waller, Esq., represented Petitioner at an evidentiary hearing held on May 27, 2014. In an order filed September 4, 2014 (and dated August 27, 2014), the PCR judge denied Petitioner's PCR application.

         Petitioner filed a timely appeal of the PCR court's order, and he was represented by Kathrine H. Hudgins, Esq., Appellate Defender of the Division of Appellate Defense, who raised the following issue on appeal:

The PCR judge erred in refusing to find counsel ineffective for failing to move for a mistrial pursuant to S.C. Code §§ 14-7-1330 when the jury indicated they were deadlocked a second time after receiving an Allen charge, and failing to object to the judge's coercive second instruction to continue deliberations.

(ECF No. 14-8 at 2.) The South Carolina Supreme Court denied certiorari on March 25, 2016, and the remittitur was ...


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