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Leaphart v. Eagleton

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

March 29, 2017

Kareem Jabbar Leaphart, Petitioner,
v.
Warden Willie L. Eagleton, Respondent.

          ORDER AND OPINION

         Petitioner Kareem Jabbar Leaphart (“Petitioner”), a state prisoner, filed through counsel a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging five numbered grounds for relief. (ECF No. 1.) Respondent, Warden Willie L. Eagleton (“Respondent”), filed a return (ECF No. 8) and a motion for summary judgment on all five of Petitioner's grounds for relief (ECF No. 9).

         In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c) (D.S.C.), the matter was referred to United States Magistrate Judge Mary Gordon Baker for pre-trial handling. On January 23, 2017, the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court grant Respondent's motion for summary judgment and dismiss the Petition with prejudice on all five grounds raised therein. (ECF No. 21.) Petitioner filed objections to the Report (ECF No. 25), which the court now considers. For the reasons that follow, the court ACCEPTS IN PART and REJECTS IN PART the Magistrate Judge's Report, GRANTS IN PART and DENIES IN PART Respondent's motion for summary judgment, DISMISSES all but a portion of Ground Two of the Petition, and RECOMMITS the matter to the Magistrate Judge for further proceedings consistent with this order.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         The court concludes, upon its own careful review of the record, that the Magistrate Judge's factual synopsis is accurate and incorporates it herein by reference.[1] The court's recitation of the background will thus focus on the facts pertinent to the analysis of Petitioner's objections, citing to the record only when it is particularly useful to do so. The relevant facts, viewed in a light most favorable to Petitioner, are as follows.

         Petitioner was indicted and charged with possession with intent to distribute crack cocaine, possession with intent to distribute cocaine, distribution of crack cocaine, and resisting arrest. A two-day jury trial was held in January 2007, and Petitioner was convicted of the latter two counts and sentenced, in the aggregate, to 23 years in prison.

         At trial, George Douglas Curry, a narcotics agent of the Sheriff's Office in Lexington County, South Carolina, testified that the Sheriff's Office had received complaints of drug-related activity in the area of a mobile home park in West Columbia, South Carolina. In response, he and other officers commenced an undercover drug buy in the area on March 15, 2006. Agent Curry testified that the officers went to a bank and withdrew two $20 bills from an account used for undercover operations such as this one and that he issued the two bills to another agent, John Moore. Agent Moore then drove to the mobile home park where he encountered Petitioner. Agent Moore testified that he gave Petitioner $40 of narcotics funds and that Petitioner handed him some crack cocaine[2] (see ECF No. 8-1 at 105, 108, 111-12), after which Agent Moore signaled the other officers involved to effect an arrest.

         Agent Curry testified that he drove up on the scene with the blue lights affixed to his vehicle turned on, stopped, and exited the vehicle. He testified that Petitioner “took off between two trailers right on the roadway. And as he did, he took what was in his pocket, threw it on the ground, and continued to run with [other officers] in pursuit.” (ECF No. 8-1 at 54.) Agent Curry lost sight of Petitioner, re-entered his vehicle, drove to where he expected to find Petitioner, found Petitioner in a struggle with other officers, and helped effect Petitioner's arrest.

         Agent Curry was questioned about the two $20 bills used in the undercover drug buy. Upon testifying that he had issued the two bills to Agent Moore, Agent Curry was shown a photocopy of two $20 bills and asked by the solicitor to “[p]lease tell me what this is if you know.” (ECF No. 8-1 at 51; see Id. at 61 (clarifying that the item shown to Agent Curry was a photocopy of the bills).) Agent Curry responded that “[t]his is a portion of the money that we had taken out of the bank and that was issued to [Agent Moore]. This is the money that was used to make a controlled purchase.” (Id. at 51.) Later, the solicitor asked Agent Curry, “You said that you picked up the money that [Petitioner] threw. [The photocopy that] has been marked as State's 1, is that the money or some of the money that you picked up?” (Id.) Agent Curry responded in the affirmative, and the prosecution moved to admit the photocopy into evidence. (See id.) Over Petitioner's trial counsel's objection under the best evidence rule in S.C.R. Evid. 1002 or 1003, the photocopy was admitted into evidence. (See id.)

         During cross-examination, trial counsel asked Agent Curry how he kept track of the bills so that he knew that the bills he had found were the same bills he had issued to Agent Moore. (See id. at 62.) Agent Curry responded that “[w]e had this money. This is the money that I had handed to [Agent] Moore a couple of minutes earlier.” (Id. at 62-63.) When asked whether there were any distinguishing marks on the bills so that they could be identified, Agent Curry responded that there was “[n]othing really . . . It looks like a $20 bill.” (Id. at 63.) During cross-examination, Agent Curry also clarified that the two bills had been recovered from off the ground and that they had been thrown on the ground by Petitioner. (See Id. at 63-64.) Agent Curry also testified that the two bills had been re-deposited into the account from which they had been withdrawn. (See Id. at 62.)

         Following the trial, the jury found Petitioner guilty of distribution of crack cocaine, and he was convicted and sentenced as previously explained. Petitioner appealed, arguing that there had been insufficient evidence for a conviction. The South Carolina Court of Appeals dismissed the appeal.

         Petitioner filed an application for post-conviction relief (“PCR”) in state court. During a hearing in the PCR court, trial counsel testified that his “overall trial strategy” was to emphasize the weakness of any evidence that a money-for-drugs transaction occurred:

[Agent] Curry testified that [Petitioner] dropped the drugs, but he didn't actually ever say specifically he saw it. And there was that. I tried to harp on the fac1t that they might not be able to connect it necessarily. There [were] complaints of drug activity. It's not unreasonable to think that-[y]ou know, they found it quite a distance away from him. There was nobody that specifically said they eyeballed him drop it; they just said it was dropped in an area where they thought he dropped it and said that he dropped it, but they didn't say that they actually saw it happen. I pointed that out in my closing argument I believe. Additionally, it was not clear that an actual sale occurred. I tried to address that problem at trial, that there was no audio even though they said they [had an audio recording].

         (ECF No. 8-2 at 125-26.) Trial counsel also testified that he had cross-examined Agent Curry regarding what had happened to the two $20 bills after the undercover drug buy and that his questions were “in anticipation of using [Agent Curry's testimony] in closing, [to argue] that [the officers] were . . . unconcerned as to return the money to the bank.” (Id. at 130.) Trial counsel was asked whether that line of questioning “was part of [his] strategy with regards to the money used in the control[led] buy.” (Id.) Trial counsel responded:

It is my experience-and it was something that I've been taught and I've found to be true throughout my career-it's better to get the information and argue about why it's a bad thing at closing rather than try to argue with the witness. As a trial attorney, I'm a firm believer that you can never win an argument with a witness and, once you've started, you've already lost. So, once you get the information that can allow you to make the argument to the jury, you don't go into it further and tell them that they're wrong or try to berate them for the information you've gotten. You get the information and move on.

(Id.)

         On cross-examination, Petitioner's PCR counsel questioned trial counsel regarding his understanding of S.C. Code Ann. § 44-53-582 (2016).[3] On redirect examination, trial counsel testified that he did not believe the statute addressed anything regarding the admissibility at trial of monies used by law enforcement during a controlled buy. Later, trial counsel, clarifying an apparent misapprehension of PCR counsel, stated “As to whether . . ., if I had used [§ 44-53-582] . . . and got the bills excluded, it would have made a difference, I can't testify that it wouldn't have made a difference.” (ECF No. 8-2 at 144.)

         The PCR court denied Petitioner's PCR application and dismissed the petition. The PCR court also denied Petitioner's subsequent motion to reconsider, alter, or amend. Petitioner appealed to the South Carolina Court of Appeals, filing a Johnson petition for a writ of certiorari.[4] The Court of Appeals denied the petition for a writ of certiorari and remitted the matter to the court below.

         On December 10, 2015, Petitioner filed his § 2254 petition, asserting five grounds for relief. In Ground One, Petitioner asserts trial counsel rendered ineffective assistance by failing to object to the sufficiency of the indictment for distribution of crack cocaine. In Ground Two, Petitioner asserts trial counsel rendered ineffective assistance by failing to object to the admission of the photocopy of the two $20 bills into evidence. In Ground Three, Petitioner asserts that trial counsel rendered ineffective assistance by failing to object to remarks made by the solicitor during opening statements. In Ground Four, Petitioner asserts trial counsel rendered ineffective assistance by failing to object to the admission into evidence of the drugs at issue on chain-of-custody grounds. In Ground Five, Petitioner asserts trial counsel rendered ineffective assistance by failing to adequately investigate proper police procedure for conducting undercover drug buys and by failing to challenge the procedures used by police in the undercover drug buy at issue in this case.

         On March 24, 2016, Respondent filed a return and a motion for summary judgment. On January 23, 2017, the Magistrate Judge issued her Report, recommending that the motion for summary judgment be granted with respect to all five grounds for relief and that the petition be dismissed. With regard to Ground Two of the petition, the Report noted that Petitioner advanced five reasons supporting his contention that trial counsel rendered ineffective assistance by failing to object to the admission into evidence of the photocopy of the two bills:

Petitioner contends that . . . counsel was ineffective (a) in failing to object to the State's failure to lay a proper foundation for the introduction of this evidence; (b) in failing to object to the repeated assertions by Agent Curry that the money in question was the buy money where the record is completely void of any evidence whatsoever that serial numbers, or any other distinguishing features of the money used, were recorded through any method; (c) in failing to object to introduction of the evidence pursuant to Rules 401 and 402 of the South Carolina Rules of Evidence; (d) in failing to argue that introduction of the photographic copy violated . . . [Petitioner's] rights under the Confrontation Clause; (e) failing to object to the money being re-deposited in the bank and a photocopy being substituted for the actual funds in violation of S.C. Code Ann. § 44-53-582.

(ECF No. 21 at 11-12 (internal quotation marks, ellipses, and footnote omitted).)

         The Magistrate Judge determined that only the last of these reasons supporting Petitioner's Ground Two assertion was presented to the PCR court, and that, absent an excuse, the four other reasons were procedurally defaulted. (See Id. at 14-15.) Regarding the last reason, the Magistrate Judge concluded that the PCR court's rejection of Petitioner's argument that trial counsel had rendered ineffective assistance by not objecting to the admission of the photocopy of the two bills based on § 44-53-582 was not contrary to, or an unreasonable application of, clearly established federal law. The Magistrate Judge agreed with the PCR court that the statute had no application to the admissibility of evidence in Petitioner's criminal case. (See Id. at 15.)

         The Magistrate Judge noted that Petitioner argued that PCR counsel had rendered ineffective assistance by failing to raise the four procedurally defaulted reasons for Ground Two relief, which amounted to cause and prejudice to excuse his procedural default under Martinez v. Ryan, 556 U.S. 1 (2012). For three of the remaining reasons-all but the reason based on the Confrontation Clause-the Magistrate Judge determined that they should be rejected on the basis that it was trial counsel's strategy to use cross-examination and closing argument to attack the police investigation by, among other things, pointing to the defects in tracking and recording the two $20 bills. (See Id. at 17-18.) In the Magistrate Judge's estimation, trial counsel's strategic decision in this regard could not amount to constitutionally deficient performance. (See Id. at 18 (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)).) Regarding the Confrontation-Clause-based reason, the Magistrate Judge determined that it was without merit because Agent Curry laid a proper foundation for the admission of the photocopy. (See Id. at 19.)

         With regard to Ground Five, the Magistrate Judge noted that Petitioner asserts eight different instances in which trial counsel is alleged to have been ineffective for not adequately cross-examining the State's witnesses on various aspects of Petitioner's case.[5] (See Id. at 22-23.) The Magistrate Judge also noted Respondent's argument that Ground Five was procedurally defaulted because none of the reasons for relief asserted under it were presented to the PCR court and noted as well Petitioner's arguments for application of Martinez. (See Id. at 23.) The Magistrate Judge determined that Martinez would be of no aid to Petitioner because the underlying claim of ineffective assistance was meritless. (See id.) The Magistrate Judge explained that Petitioner presented no argument or evidence demonstrating that he was prejudiced by trial counsel's failure to follow the specific lines of questioning he advanced and that criticism of trial counsel's cross- examination tactics was not enough to demonstrate that his performance was deficient. (See Id. at 23-24.)

         The Magistrate Judge also recommended granting Respondent's motion for summary judgment as to Grounds One, Three, and Four. In his objections, Petitioner does not challenge the Magistrate Judge's recommendation that the motion for summary judgment as to Grounds One, Three, and Four should be granted. Instead, ...


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