United States District Court, D. South Carolina, Aiken Division
OPINION AND ORDER
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT COURT
Clay Golson (“Petitioner”) is an inmate who is
currently housed at the Leiber Correctional Institution in
Ridgeville, South Carolina. On October 31, 2016, Petitioner
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his convictions for burglary
in the first degree and possession of a weapon during a
violent crime in Lexington County, South Carolina. ECF No. 1.
In accordance with 28 U.S.C. § 636(b) and Local Rule
73.02, D.S.C., this matter was referred to United States
Magistrate Judge Shiva V. Hodges for pretrial handling.
was indicted at the August 2008 term of the Lexington County
Grand Jury for burglary in the first degree (2008-GS-32-3181)
and possession of a weapon during a violent crime
(2008-GS-32-3283). ECF No. 12-3 at 47-50. Elizabeth C.
Fullwood, Esq., and Bennett E. Castro, Esq., represented
Petitioner at trial. ECF No. 12-1. On March 30 and 31, 2000,
the Honorable R. Knox McMahon conducted a jury trial.
Id. At trial, the state presented evidence that the
victim, Matthew Olsen (“Olsen”) was awoken by
noises in his home. Olsen went downstairs to investigate the
noise when he noticed the door knob had been pulled off the
front door. ECF No. 12-1 at 99. Olsen then confronted a black
male with a “do-rag” over his face. Id.
Olsen ran to the kitchen to grab his gun, and when he
returned he saw the intruder climbing through a broken front
window. Id. at 100. Olsen followed the intruder out
but went back inside to call the police after the intruder
left the premises. Id. Deputies from the Lexington
County Sheriff Department responded to the call. Id.
Deputies took an inventory of the missing items, including a
luger pistol, and processed the crime scene. Id. at
101-02, 105. Deputies collected a shard of the broken glass,
which contained blood; a can of Hurricane beer; and
fingerprints throughout the house. Id. at 160-62;
164-65. Deputies spoke with the victim's daughter, who
had gone to a nearby convenience store to ask the clerk
whether she had sold anyone Hurricane beer that night.
Id. at 152, 183. The clerk remembered selling the
beer to Petitioner. Id. at 184. The clerk remembered
Petitioner coming back to the store a second and third time
during her shift that night. Id. at 185-86. The
second time Petitioner came into the store, the clerk
remembered that he had a cut on his arm. Id. at 185.
clerk identified Petitioner through a photo line-up.
Id. at 189-90. Based on this information, the
deputies obtained a blood sample from Petitioner on January
12, 2009. ECF No. 225. The DNA from Petitioner's blood
sample was compared to the DNA collected from the shard of
broken glass and the swab taken from the top of the Hurricane
beer can. ECF No. 12-2 at 50-52. Petitioner's DNA was a
partial match to the beer can swab and a complete match to
the blood on the shard of glass. Id. at 50-53.
Petitioner's counsel objected to the introduction of the
DNA comparison as the state did not provide the individual
who took the sample as a witness. The court overruled the
objection and the state introduced the DNA results into
evidence. Id. at 38-43.
jury found Petitioner guilty on both charges. ECF No. 12-2 at
96. Judge McMahon sentenced Petitioner to twenty-five years
imprisonment for the burglary conviction and five years
imprisonment for the weapons charge, to run concurrently.
Id. at 107.
April 3, 2009, Petitioner timely filed a Notice of Appeal.
ECF No. 12-2. Appellate Counsel M. Celia Robinson, Esq.,
represented Petitioner on appeal. Attorney Robinson raised
the following issue on appeal:
The trial judge erred in overruling the defense objection to
the chain of custody of appellant's blood sample where
the State failed to present testimony from the medical
personnel responsible for drawing and preserving the blood
ECF No. 12-5 at 5. On April 25, 2012, the South Carolina
Court of Appeals affirmed Petitioner's convictions in an
unpublished decision. ECF No. 12-7. The Court of Appeals
issued a remittitur on May 15, 2012. ECF No. 12-8.
filed a Post-Conviction Relief (“PCR”)
application on June 14, 2012. ECF No. 12-2 at 109-15.
Petitioner alleged various trial court evidentiary errors and
jurisdiction issues. ECF No. 12-2 at 109-15. Petitioner was
appointed counsel, Charles T. Brooks, III, Esq., who filed
two amended applications alleging additional jurisdictional
issues. Id. at 116-17. On January 14, 2014, the
Honorable Brian M. Gibbons held a PCR evidentiary hearing.
ECF No.127-61. Petitioner and his trial counsel testified.
Id. Petitioner testified that
[t]he blood from the broken glass and the swab from the beer
can that was collected from the crime scene was entered into
the state database and it did not match my DNA profile. These
results were conducted on November 25th of 2008. The crime
happened on August 18th of 2007. And my DNA was submitted to
the State database in the year of 2004. So this would have
been impossible for me to escape that.
ECF No. 12-2 at 147. His trial counsel testified that she
independently evaluated and investigated the DNA report and
saw no potential issue with the reports. Id. at
157-58. Petitioner introduced, as an exhibit, a report
generated on November 12, 2008, demonstrating a match between
Target 08-14187-2 (believed to be the shard of glass,
see ECF No. 12-2 at 51) and Candidate 4-3006
(Petitioner, ECF No. 23 at 2). ECF No. 12-3 at 22, 30. The
PCR court denied Petitioner's ineffective assistance of
counsel claims. ECF No. 12-3 at 43-44. The PCR court held:
[Petitioner] failed to meet his burden to prove counsel's
performance was deficient or ineffective for failing to
adequately investigate the purportedly exculpatory evidence.
“This Court has stated previously that criminal defense
attorneys have a duty to undertake a reasonable
investigation, which at a minimum includes interviewing
potential witnesses and making an independent investigation
of the facts and circumstances of the case.”
Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60,
64 (2011). First, [Petitioner] asserts that counsel failed to
exploit the purportedly exculpatory DNA evidence that linked
him to the crime scene. This Court finds that
[Petitioner's] assertions rested upon unqualified and
conclusory speculation. See Moorehead v. State, 329
S.C. 329, 334, 496 S.E.2d 415, 417 (1998) (“Failure to
conduct an independent investigation does not constitute
ineffective assistance of counsel when the allegation is
supported only by mere speculation as to the result.”).
[Petitioner] introduced an unauthenticated exhibit from
[South Carolina Law Enforcement Division
(“S.L.E.D.”)] that provides him no support here;
facially it confirms the S.LE.D.'s expert's trial
testimony. See U.S. v. Taylor, 802 F.2d 1108, 1119
(9th Cir. 1986) (Vague and speculative assertions are
deficient.). In contrast, counsel provided credible testimony
regarding her efforts in attacking the evidence at trial.
This Court finds counsel's performance more than
sufficient on the matter. See U.S. v. Taylor, 832
F.2d 1187, 1195-96 (10th Cir. 1987) (“The record of
counsel's performance in examination and
cross-examination of witnesses may show preparation and
knowledge of the case.”). Therefore, this Court readily
denies and dismisses this allegation.
appealed the denial of PCR on October 8, 2014. ECF No. 12-10.
Benjamin John Trapp, Esq., represented Petitioner on appeal.
On June 16, 2015, Petitioner's attorney filed a
Johnson petition for a ...