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Lytes v. Lewis

United States District Court, D. South Carolina

February 8, 2017

ODOURI L. LYTES, #282918, Petitioner,
v.
SCOTT LEWIS, WARDEN, Respondent.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge

         Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed pro se on August 5, 2016.[1]

         The Respondent filed a return and motion for summary judgment on November 21, 2016. As the Petitioner is proceeding pro se, a Roseboro order was entered on November 22, 2016, advising the Petitioner that he had thirty-four (34) days to file any material in opposition to the motion for summary judgment. Petitioner was specifically advised that if he failed to respond adequately, the motion for summary judgment may be granted, thereby ending his case.

         On January 11, 2017, after no response from the Petitioner was filed, the undersigned entered a Report and Recommendation recommending dismissal of the action due to Petitioner's failure to prosecute his case. However, after Petitioner subsequently filed a memorandum in opposition on January 17, 2017, the Honorable Mary G. Lewis, United States District Judge, vacated the Report and Recommendation and remanded the matter to the undersigned for further proceedings.

         This matter is now before the Court for disposition.[2]

         Procedural History

         The record reflects that Petitioner was indicted in Edgefield County in December 2007 for trafficking crack cocaine, greater than 28 grams but less than 100 grams [Indictment No. 07-GS-19-753]. (R.pp. 438-439). Petitioner was represented by James R. Snell, Esquire, and following a jury trial on August 11-12, 2009, was found guilty as charged. (R.pp. 1-351). The charge was considered Petitioner's third offense based on his prior record, which under state law subjected him to an increased sentencing range. S.C. Code Ann. § 44-53-375 (C)(2)(c). (R.pp. 352-355). Defense counsel requested that as part of sentencing an outstanding probation matter also be heard regarding a separate malicious injury to person property conviction. (R.pp. 355-356). Petitioner was then sentenced to twenty-five (25) years imprisonment, and his probation was terminated. (R.pp. 359-360).

         Petitioner filed a timely appeal in which he was represented by Wanda H. Carter, Esquire, of the South Carolina Commission on Indigent Defense. Petitioner's counsel filed an Anders[3] brief seeking to be relieved and raising the following issue:

Ground One: The trial court erred in denying [Petitioner's] Batson motion made after the solicitor used peremptory challenges in a discriminatory manner because the solicitor's explanation that he struck the four African-American venirepersons in question due to their criminal records did not survive the race-neutral test where a Caucasian venireperson, who had a criminal record also, was not struck by the solicitor and ultimately sat as a juror on the petite jury in the case. [Petitioner] was prejudiced by the solicitor's having struck the venirepersons in question because their prior associations with drugs might have rendered them more sympathetic to [Petitioner's] drug case.

See Court Docket No. 26-3, p. 3.

         Petitioner also filed a pro se Anders brief raising the following issues:

Ground One: The trial judge erred in denying a dismissal of the case based on Rule 5 and Brady[4] violations clearly the solicitor with held documents for impeachment or cross examination therefore the Appellant was prejudiced as a result;
Ground Two: The trial judge erred in denying [Petitioner's] motion for a continuance;
Ground Three: The trial judge erred in denying [Petitioner's] motion that the State establish a sufficient chain of custody.[5]

         On January 25, 2012, the South Carolina Court of Appeals filed an Order granting counsel's motion to be relieved and dismissing the appeal. State v. Lytes, 2012-UP-011 (S.C.Ct.App. Jan. 25, 2012). See Court Docket No. 26-6. The Petitioner did not seek a rehearing or certiorari to the South Carolina Supreme Court, and the Court of Appeals thereafter issued the Remittitur to the Edgefield County Clerk of Court on February 13, 2012. See Court Docket No. 26-7.

         On September 10, 2012, Petitioner filed an application for post-conviction relief (“APCR”) in state circuit court. See Lytes v. State of South Carolina, No. 2012-CP-19-296. (R.pp. 362- 382). Respondent construes the Petition as having raised the following issues:

Ground One: The trial judge erred in denying a dismissal of the case based on Rule 5 and Brady violations clearly the Solicitor with held documents for impeachment or cross examination therefore the [Petitioner] was prejudiced as a result.
Ground Two: The trial judge erred in denying [Petitioner's] motion for a continuance.
Ground Three: The trial judge erred in denying [Petitioner's] motion that the state establish a sufficient chain of custody.
Ground Four: Trial counsel failed to make objections and preserve these issues for direct appeal.
Ground Five: The trial judge erred in denying [Petitioner's] Batson motion . . . .

(R.pp. 366-376).

         However, in his memorandum in opposition to summary judgment on his federal habeas petition, Petitioner contends that the issues raised in his state PCR petition were:[6]

Ground One: Ineffective Assistance of Counsel.
(a) Trial counsel failed to make objections and preserve these issues for direct appeal;
(b) “Trial judge erred in denying a dismissal of the case based on Rule 5 and Brady violations”;
(c) “Trial judge erred in denying [Petitioner's] motion for a continuance”. The continuance was necessary to permit adequate assistance of counsel”;
(d) “Trial judge erred in denying [Petitioner's] motion that the state establish a sufficient chain of custody”;
(e) “Trial judge erred in denying [Petitioner's] Batson motion made after the solicitor used preemptory challenges in a discriminatory manner”.

See Memorandum in Opposition, p. 4 (quotations are indicated as listed in the memorandum).

         Petitioner was represented in his APCR by Adam Nelson, Esquire, and an evidentiary hearing was held on Petitioner's application on November 15, 2013. (R.p. 389). At the beginning of the hearing, PCR counsel limited the issues being presented to “allegations of a Brady violation and Rule 5 violation . . . . it sounds both prosecutorial misconduct and somewhat ineffective assistance of counsel.” (R.pp. 392-393, 427). At the conclusion of the hearing, the PCR judge denied relief and requested a proposed order from the State. (R.pp. 425-427). Thereafter, in a written order dated May 19, 2014 (filed May 29, 2014), the PCR judge denied relief on the APCR in its entirety. (R.pp. 429-437). Although the evidentiary hearing was limited to discovery violations and related ineffective assistance of counsel claims, the PCR judge also ruled on the allegation that counsel was ineffective for failing to move to suppress the drugs at issue based on a deficient chain of custody, denying that claim on the merits. As to any remaining claims, the PCR judge found that Petitioner had abandoned those claims at the hearing. (R.p. 436).

         Petitioner filed a timely appeal of the PCR court's order. Petitioner was represented on appeal by Appellate Defender Lanelle Canty Durant, who filed a Johnson[7] petition, seeking to be relieved and raising the following issue:

Did the PCR court err in failing to find trial counsel ineffective for not asking for a continuance to discuss a strategy with Petitioner Lytes after it was disclosed during the Jackson v. Denno[8] for the first time that Lytes had claimed full ownership of the drugs in question?

See Petition, p. 2 (Court Docket No. 26-8).

         Although Petitioner was advised of his right to file a pro se response to the Petition, Petitioner did not submit a pro se response. See Court Docket No. 26-9. On March 25, 2016, the Supreme Court of South Carolina denied the petition for writ of certiorari and granted counsel's withdrawal request. See Court Docket No. 26-10. See Lytes, Petitioner, v. State of South Carolina, Appellate Case No. 2014-001292, Order (S.C. March 25, 2016) (Court Docket No. 26-10). The Remittitur was sent down on April 12, 2016. See Court Docket No. 26-11.

         In his Petition for writ of habeas corpus filed in this United States District Court, ...


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