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Brown v. Cartledge

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

March 29, 2017

Gerald Brown, Petitioner,
v.
Larry Cartledge, Respondent.

          ORDER

          TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE

         Petitioner, Gerald Brown (“Brown”), a state prisoner represented by counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge's Report and Recommendation (“Report”), recommending that Respondent's motion for summary judgment (ECF No. 12) be granted. (ECF No. 20). The parties were advised of their right to file objections to the Report. (ECF No. 20 at 25). On January 16, 2017, Petitioner filed timely objections. (ECF No. 24).

         The Magistrate Judge makes only a recommendation to the court. The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         I. Background

         The magistrate judge set forth the background and procedural history in detail in his Report. (ECF No. 20 at 1-5). Briefly, on June 12, 2007, an armed, masked intruder wearing a shirt with “police” written on it bound George Howard and his older son in Howard's house and threatened to kill them. Id. The intruder retrieved $23, 000 in cash from the attic and fled. Id. Police officers, who had responded to a call and surrounded the house, saw an armed, masked man exit through the front door and run around the side of the house. Id. Officers, including Deputy Hal Harris (“Harris”), stationed behind the house had watched the suspect, an armed, masked man wearing a badge, bulletproof vest, and shirt that read, “police, ” in the house through a window for several moments and then, after hearing commotion around the front of the house, observed a man wearing a badge, bulletproof vest, and shirt that read, “police, ” run around the side of the house and flee into the woods. Id. The suspect was pursued by a police dog and officers. Id. Eventually, Harris, who testified that he did not lose sight of suspect, tackled and arrested the suspect, who was discovered to be Brown. Id.

         Police discovered a cell phone in Brown's pocket. (ECF No. 11-1 at 162). Police recovered body armor and the remnants of the shirt with “police” written on it. Id. Investigation of the crime scene uncovered a handgun; a “special officer” badge and handcuffs; a large quantity of money in Howard's backyard; a Taser; and a black bag containing a gun holster, two flashlights, gloves, a screw driver, a crowbar, gum, and other tools. Id. The location of these items and the underlying facts were contested at trial. (ECF No. 1-1 at 3-4). Brown contended that he had arrived at Howard's house with $23, 000 to purchase cocaine on behalf of his cousin, Andrell Terry, saw someone tied up on the floor through a window, and hid in the woods to await a ride until being attacked by the police dog. Id. at 4.

         In September 2007, Brown was indicted for assault and battery of a high and aggravated nature, impersonating law enforcement, malicious injury to a police dog, burglary first degree, armed robbery, three counts of kidnapping, and possession of a weapon during the commission of a violent crime. In February 2009, Brown was indicted on one count of resisting arrest. Brown was represented at trial by Public Defender Randall Chambers.[1] (ECF No. 20 at 2). After a jury trial on April 14-16, 2009, Brown was convicted of all charged offenses and sentenced to life sentences for armed robbery, burglary first degree, and three counts of kidnapping; ten years for assault and battery of a high and aggravated nature; one year for impersonating a police officer; one year for resisting arrest; five years for possession of a weapon during the commission of a violent crime; and five years for injury to a police dog.

         Brown filed a direct appeal and the South Carolina Court of Appeals affirmed Brown's conviction and sentence on May 2, 2012. The remittitur was issued on May 18, 2012. Brown then filed an application for post-conviction relief (“PCR”) on December 14, 2012. After a hearing, the PCR court denied Brown relief on April 9, 2014. On April 21, 2014, Brown filed an appeal of the denial of his PCR application. On September 23, 2015, the South Carolina Supreme Court denied Brown's petition for a writ of certiorari. The remittitur was issued October 14, 2015. Brown filed this habeas petition on February 2, 2016, raising five grounds for relief.

         In his report, the magistrate judge addressed each of the following five grounds that Brown raised in his habeas action:

Ground One: PETITIONER GERALD BROWN WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO CONDUCT MEANINGFUL PRETRIAL INVESTIGATION AND PREPARATION
Ground Two: PETITIONER GERALD BROWN WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO LOCATE AND CALL AN EXCULPATORY WITNESS AT TRIAL
Ground Three: PETITIONER GERALD BROWN WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO DISCOVER AND POINT OUT SERIOUS INCONSISTENCIES IN THE VICTIM'S TESTIMONY
Ground Four: PETITIONER GERALD BROWN WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO INTRODUCE CRITICAL EVIDENCE AT TRIAL.
Ground Five: PETITIONER GERALD BROWN WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS APPELLATE COUNSEL FAILED TO RAISE A VALID AND PRESERVED ARGUMENT RELATED TO THE JURY INSTRUCTIONS IN BROWN'S TRIAL.

(ECF No. 20 at 8). The magistrate judge found that in addressing the first four grounds, the PCR court correctly applied the Strickland standard to examine the performance of trial counsel, which is the applicable Supreme Court precedent, and that the record fails to demonstrate that the PCR court's decision conflicted with applicable Supreme Court precedent. (ECF No. 20 at 11- 20). Strickland v. Washington, 466 U.S. 668 (1984). As to ground five, the PCR court applied the Strickland standard to evaluate Petitioner's ineffective assistance of appellate counsel claim, see Bennett v. State, 680 S.E.2d 273, 276 (S.C. 2009), and the magistrate judge found that the record supported the PCR court's denial of Petitioner's claim.

         II. Discussion

         In his objections, Brown contends that the state court's reasoning was faulty and that the magistrate judge erred by recommending that Brown's petition for relief due to ineffective assistance of trial and appellate counsel be denied. Brown objects to the magistrate judge's findings on each of his five grounds for relief.

         It was Petitioner's “burden before the state court to show both that counsel's performance was deficient-that counsel's representation fell below an objective standard of reasonableness- and that he suffered prejudice as a result-by showing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Morva v. Zook, 821 F.3d 517, 528 (4th Cir. 2016) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).

         “Surmounting Strickland 's high bar is never an easy task, and [e]stablishing that a state court's application of Strickland was unreasonable [or contrary to clearly established federal law] under § 2254(d) is all the more difficult. This double-deference standard effectively cabins [the federal habeas court's] review to a determination of whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Morva, 821 F.3d at 528 (quoting Richter, 562 U.S. at 105).

         A. Failure to Investigate and Prepare

         In his first objection, Brown alleges that the magistrate judge's finding was erroneous and that (1) the Supreme Court case Morris v. Slappy, 461 U.S. 1 (1983), cited by the magistrate judge, has distinguishable facts from the present situation, (2) the PCR court based its dismissal on clearly erroneous facts, and (3) credibility was improperly taken into account in the magistrate judge's analysis.

         First, Brown argues that the facts of Morris differ from the facts of the present case and that, therefore, the result should be different. In Morris, the Supreme Court denied a petition for habeas corpus which alleged that the trial court abused its discretion by failing to order a substitution of counsel after the petitioner insisted that counsel, who was assigned to the case six days prior to the trial date, [2] did not have adequate time to prepare for the case. Morris, 461 U.S. at 4. On the first day of trial, counsel, who had met with the petitioner just days prior to trial, reported to the court that he felt prepared to try the case. Id. at 5. The petitioner argued multiple times to the trial judge that counsel could not possibly be prepared for trial because of the short preparation time and small amount of time spent with the petitioner, and insisted that he did not want the appointed counsel to represent him. Id. at 4-10. However, as the magistrate judge quoted in this case, the Court stated in Morris, “Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel.” Id. at 11. Furthermore, the Court rejected the assertion that the Sixth Amendment right to counsel would be without substance if it lacked the right to a meaningful attorney-client relationship. Id. at 13-14 (stating that no court could guarantee that every defendant will develop rapport with his client and a meaningful relationship is not guaranteed by the Sixth Amendment).

         The only language in Morris cited to by Brown discussed the fact that trial counsel promptly replaced the hospitalized attorney that had previously been assigned to the defendant, reviewed the prior attorney's research records carefully, and conducted conferences with the defendant in order to support the fact that counsel performed his duty. (ECF No. 24 at 2). In the present case, trial counsel testified that he reviewed the discovery materials-alone and with Brown-received from Brown's first attorney, private counsel, Chip Price. (ECF No. 11-3 at 179-80). Brown told trial counsel he was going to retain private counsel again, but never did. (ECF No. 11-3 at 190-91). Trial counsel testified that he conducted several conferences with Brown prior to trial; that he spent approximately eight hours with him reviewing the case, including the State's evidence; and that he was willing to spend as much time as necessary to meet with applicant to prepare the case. (ECF No. 20 at 11). In this case, trial counsel testified that his strategy developed throughout the trial due to the fact that he was not aware of Brown's side of the night's events before trial because Brown did not disclose details to him. The PCR court found that trial counsel's lack of knowledge did not qualify as ineffective assistance of counsel because it was due to Brown's “refusal to participate in trial preparation, ” rather than a lack of time and did not constitute a failure to render reasonably effective assistance under prevailing professional norms. (ECF No. 1-2 at 9). See Gardner v. Ozmint, 511 F.3d 420, 427 (4th Cir. 2007) (“[W]hen determining whether counsel has delivered a constitutionally deficient performance, a state court also may consider a defendant's own degree of cooperation . . .”); see also Powell v. Shanahan, C.A. No. 3:13-496-FDW, 2014 WL 1464397, at *8 (D. N.C. April 15, 2014) (“To the extent Petitioner is complaining that his attorney did not ‘form a meaningful relationship' with him or did not present a strong enough defense, Petitioner cannot fault his trial attorney for Petitioner's own refusal to cooperate.”). The PCR court's finding is not an unreasonable application of Strickland. 466 U.S. at 691 (it is well settled that “[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. . . . In particular, what investigation decisions are reasonable depends critically on such information.”). Moreover, Brown cites to no case besides Morris in his objection to support his argument. Accordingly, Brown failed to produce evidence that the PCR court's decision was contrary to applicable Supreme Court precedent such that the result should differ from Morris.

         Second, as to the issue of deference to the PCR court's determination of trial counsel's credibility, the court finds that the magistrate judge did not err. Credibility determinations are factual determinations and, as such, “are presumed to be correct absent clear and convincing evidence to the contrary.” See Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). As the magistrate stated, a PCR court's credibility finding is entitled to deference. Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.”). Neither the PCR court nor the magistrate judge stated that there was a factual dispute as to the number of meetings between trial counsel and Brown or the amount of time trial counsel spent preparing for trial. However, Brown argued that due to the amount of time spent with Brown preparing, trial counsel was unprepared for trial. Trial counsel testified that he felt well prepared from a discovery standpoint and, further, that while he spent approximately eight hours with Brown, he would ...


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