United States District Court, D. South Carolina, Florence Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
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
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. 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,  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.
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.)
Report and Recommendation was served on December 13, 2016,
and objections were due on January 3, 2017. 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.
Factual and Procedural Background
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
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
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
10(c) Trial counsel failed to object to the solicitor leading
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
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
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.)
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,
Sumter filed objections to the Report and Recommendation.
(Objs., ECF No. 44.)
Discussion of the Law