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Sumter v. Warden, Lieber Correctional Institution

United States District Court, D. South Carolina, Florence Division

February 16, 2017

Eric Sumter, #278658, Petitioner,
v.
Warden, Lieber Correctional Institution, Respondent.

          OPINION & ORDER

          Henry M. Herlong, Jr. Senior United States District Judge

         This matter is before the court on Eric Sumter's (“Sumter”) motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.

         The court previously adopted the Report and Recommendation and summarily dismissed Sumter's § 2254 petition in an order dated January 5, 2017. (Jan. 5, 2017 Order, ECF No. 41.) Although not received by the court until January 9, 2017, Sumter filed objections to the Report and Recommendation dated January 1, 2017, which the court treated as a motion to alter or amend the judgment, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (Mot. Alter or Amend, ECF No. 44.) The objections were stamped received by the prison mailroom on January 5, 2017.[1] On January 17, 2017, the court denied Sumter's motion, finding that his objections were untimely. (Jan. 17, 2017 Order, ECF No. 45.) On January 23, 2017, [2] Sumter filed the instant motion. (Mot. Relief J., ECF No. 48.) Respondent filed a response on February 8, 2017. (Resp. Opp'n Mot. Relief J., ECF No. 49.) This matter is now ripe for consideration.

         Rule 60(b) “invest[s] federal courts with the power in certain restricted circumstances to vacate judgments whenever such action is appropriate to accomplish justice.” Compton v. Alton S.S. Co., 608 F.2d 96, 101-02 (4th Cir. 1979) (internal quotation marks omitted). “The remedy provided by the Rule, however, is extraordinary and is only to be invoked upon a showing of exceptional circumstances.” Id. at 102. Sumter argues that exceptional circumstances exist because he is legally blind and was unable to access the prison mail room due to the prison being on an emergency lock down following several incidents. (Mot. Relief J. 2, ECF No. 48.)

         The Report and Recommendation was served on December 13, 2016, and objections were due on January 3, 2017.[3] Sumter dated his objections January 1, 2017, and alleges that he could not deliver his objections to the prison mailroom due to circumstances beyond his control. (Id., ECF No. 48.) Affording Sumter the benefit of the doubt, Sumter filed timely objections. Therefore, Sumter has demonstrated exceptional circumstances and the court grants Sumter's Rule 60(b) motion. Further, the court vacates its January 5 and January 17 orders, and will consider his objections to the Report and Recommendation.

         I. Factual and Procedural Background

         Sumter is currently incarcerated in Lieber Correctional Institution, a South Carolina Department of Corrections facility. In October 2008, Sumter was indicted in South Carolina state court for trafficking cocaine. (Mem. Supp. Mot. Summ. J. Ex. 2 (State Ct. Docs. 161), ECF No. 23-2.) After a jury trial, Sumter was found guilty on October 19, 2010. (Id. Ex. 2 (State Ct. Docs. 161), ECF No. 23-2.) Sumter was sentenced to twenty-five years' imprisonment and fined $50, 000.00. (Id. Ex. 2 (State Ct. Docs. 161), ECF No. 23-2.)

         Sumter appealed his conviction on October 19, 2010. (Id. Ex. 4 (Notice of Appeal), ECF No. 23-4.) The South Carolina Court of Appeals affirmed Sumter's conviction in an opinion dated October 10, 2012. (Id. Ex. 7 (Oct. 10, 2012 Order), ECF No. 23-7.) On January 3, 2013, Sumter filed an application for post-conviction relief (“PCR”) raising ineffective assistance of counsel claims on the following grounds:

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 deficiencies.
10(c) Trial counsel failed to object to the solicitor leading a witness.
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 Applicant.
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 not proven.
11(h) Trial counsel did not object or move for directed verdict concerning the essential elements of actual or constructive possession not being shown.

(Mem. Supp. Mot. Summ. J. Ex. 2 (State Ct. Docs. 95-97), ECF No. 23-2.) An evidentiary hearing was held on May 20, 2014. (Id. Ex. 2 (State Ct. Docs. 107-58), ECF No. 23-2.) On July 16, 2014, the PCR court denied Sumter's PCR application. (Id. Ex. 2 (State Ct. Docs. 160-77), ECF No. 23-2.) Sumter filed a petition for writ of certiorari with the South Carolina Supreme Court on July 18, 2014. (Id. Ex. 9 (Pet. Writ of Cert.), ECF No. 23-9.) On October 8, 2014, the South Carolina Supreme Court denied the petition for writ of certiorari. (Id. Ex. 12 (Oct. 8, 2014 Order), ECF No. 23-12.)

         Sumter, acting pro se, filed the instant federal petition for writ of habeas corpus on March 7, 2016, raising ineffective assistance of counsel claims. (§ 2254 Pet., ECF No. 1.) On December 13, 2016, Magistrate Judge Rogers issued a Report and Recommendation recommending granting Respondent's motion for summary judgment and denying Sumter's petition. (R&R, ECF No. 36.) On January 1, 2017, [4] Sumter filed objections to the Report and Recommendation. (Objs., ECF No. 44.)

         II. Discussion of the Law

         A. Summary ...


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