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Tolen v. Cartledge

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

September 26, 2017

Frank Tolen, Jr., Petitioner,
v.
Larry Cartledge, Warden, Perry Correctional Institution, Respondent.

          ORDER

          R. Bryan Harwell, United States District Judge

         Petitioner, Frank Tolen, Jr., a state prisoner initially represented by counsel but currently proceeding pro se, filed the current petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 22, 2015. See [ECF No. 1]. Pending before the Court is Respondent's motion for summary judgment [ECF No. 16] pursuant to Rule 56 of the Federal Rules of Civil Procedure. This matter is before the Court with the Report and Recommendation (R & R) of United States Magistrate Judge Shiva V. Hodges.[1] See [ECF No. 41]. The Magistrate Judge recommended granting the Respondent's motion for summary judgment and dismissing Petitioner's petition with prejudice. For the reasons stated below, the Court adopts the Magistrate Judge's R & R, grants Respondent's motion for summary judgment, and dismisses Petitioner's § 2254 petition with prejudice.

         Facts and Procedural History

         This matter arises from the criminal conviction and sentence of Petitioner, Frank Tolen, Jr. In January 1998, Petitioner was indicted by a Saluda County grand jury for armed robbery and possession of a pistol by a person convicted of a crime of violence. [Indictments, ECF No. 15-11 at 165-66; 168-69]. Petitioner and a co-defendant, Wade Brannon (“Brannon”), were accused of robbing Oaton Dyson at gunpoint as he napped in his 18-wheeler in Saluda County. During the robbery, Dyson escaped to a nearby house when Petitioner fumbled with his gun. Petitioner and Brannon pursued Dyson but ran away after Dyson screamed and lights turned on in the neighborhood. Brannon pled guilty and testified against Petitioner. Petitioner proceeded to trial and was convicted and sentenced to life without parole for the armed robbery pursuant to S.C. Code Ann. § 17-25-45 and five years, concurrent, for the gun charge. [ECF No. 15-11 at 120].

         Petitioner filed his first application for post-conviction relief (PCR) on April 15, 1998 alleging, among other things, failure to file a direct appeal. On November 17, 2000, Judge Peeples granted Petitioner a belated appeal and dismissed Petitioner's other grounds without prejudice. [ECF No. 15-11 at 147]. Petitioner filed a belated notice of appeal from his conviction and sentence on November 28, 2000. On March 22, 2002, the South Carolina Supreme Court denied Petitioner's petition for writ of certiorari and dismissed his direct appeal.

         Petitioner filed his second PCR application on May 17, 2002. Petitioner alleged claims of ineffective assistance of counsel and an illegal sentence. Judge Goode granted Petitioner's second PCR application finding that trial counsel was ineffective and that the State failed to provide sufficient written notice to Petitioner of its intent to seek a sentence of life without parole as required by S.C. Code Ann. § 17-25-45(H). [ECF No. 15-12 at 17-24]. The State appealed the PCR court's decision. On December 19, 2005, the South Carolina Supreme Court vacated the PCR court's rulings except as to the ruling that the State failed to give proper notice of its intent to seek a sentence of life imprisonment without parole pursuant to S.C. Code Ann. § 17-25-45(H). Id. at 26. The Supreme Court then remanded the matter for a new trial on Petitioner's armed robbery and possession of a pistol by a person convicted of a crime of violence charges. Id. at 27.

         The trial court appointed O. Lee Sturkey, Esq. to represent Petitioner at his retrial. [ECF No. 15-14 at 27]. After Sturkey indicated that he had a conflict and could not represent Petitioner, the court appointed Andrew Thompson, Esq. Id. at 29.

         Petitioner was retried on the armed robbery and gun charge on November 7-9, 2006. The jury found Petitioner guilty on both counts and the Court sentenced him to life without parole on the armed robbery charge and 5 years, time served, on the gun charge. Id. at 20.

         Petitioner filed a timely notice of appeal and was represented by Katherine H. Hudgins, Esq. On appeal, Petitioner presented the following issues:

1. Did Tolen's second trial after prevailing in post conviction relief violate the constitutional prohibition against double jeopardy when the relief granted and later affirmed by the South Carolina Supreme Court affected only sentencing and not the actual conviction?
2. Did the court lack subject matter jurisdiction to try Tolen a second time on the same indictment and same charges when the error found by the PCR court and the South Carolina Supreme Court warranting remand went solely to sentencing and had no effect on the conviction?

[ECF No. 15-1 at 4].

         On May 26, 2009, the South Carolina Court of Appeals affirmed Petitioner's conviction and sentence. [ECF No. 15-3]. The remittitur was issued on June 12, 2009. [ECF No. 15-4].

         On June 30, 2009, Petitioner filed a PCR application alleging an illegal sentence and ineffective assistance of trial and appellate counsel. [ECF No. 15-14 at 38-46]. Petitioner's PCR counsel filed an amended PCR application on January 25, 2013, alleging additional grounds of ineffective assistance of trial and appellate counsel. A post-conviction relief (“PCR”) hearing was held on January 30, 2013. Petitioner was represented by Stephen D. Geoly, Esq. In an order filed April 1, 2013, the PCR court denied relief and dismissed Petitioner's PCR application.

         Petitioner timely appealed and was represented by Mr. Geoly and E. Charles Grose, Jr., Esq. on the PCR appeal. Petitioner raised the following issues on appeal:

         I. Was petitioner denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and South Carolina law because trial counsel failed to question the validity of the eyewitness identification of petitioner by the victim?

II. Was petitioner denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and South Carolina law because trial counsel failed to impeach the cooperating co-defendant about the potential sentences he faced for armed robbery if he had not cooperated with law enforcement and proceeded to trial?
III. Was petitioner denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and South Carolina law when trial counsel failed to make a Batson motion because he did not understand the law?
IV. Was petitioner denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and South Carolina law because of complete breakdown of the attorney-client relationship when trial counsel refused to meet with Petitioner at the detention, failed to review with Petitioner the transcript of the prior trial, and failed to investigate the evidence the State intended to use at trial and the cumulative error denied petitioner a fair trial?
V. Was petitioner denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and South Carolina law when appellate counsel failed to raise and brief the trial court's erroneous admission, over objection, of information that the investigating officer received from deceased witness Frontis Smith, when that information was inadmissible hearsay, violated the Confrontation Clause, and constituted prejudicial comments on Petitioner's character?
VI. Was petitioner denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and South Carolina law because trial counsel failed to object to his being [retried] after this Court remanded his case for resentencing only?

[ECF No. 15-5 at 8]. The South Carolina Supreme Court denied Petitioner's petition for a writ of certiorari on December 10, 2014, and remitted the matter to the lower court on December 30, 2014. [ECF No. 15-8; 15-9].

         Petitioner then filed the current petition, which alleges four grounds. In ground one, Petitioner alleges his trial counsel was ineffective for failing to sufficiently 1) prepare for trial; 2) investigate; and 3) meet with Petitioner. In ground two, Petitioner alleges his trial counsel was ineffective for failing to sufficiently challenge the victim's identification of the Petitioner. Ground three alleges trial counsel was ineffective in failing to cross-examine Petitioner's co-defendant regarding his potential sentence. Ground four alleges trial counsel was ineffective for failing to make a Batson motion following jury selection.

         Respondent filed a return and motion for summary judgment on November 18, 2015. On July 7, 2016, the Magistrate Judge issued an R&R recommending that Respondent's motion for summary judgment be granted and Petitioner's petition dismissed with prejudice. Petitioner filed objections to the R&R on October 24, 2016.

         Legal Standards of Review

         I. Review of the Magistrate Judge's Report & Recommendation

         The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of those portions of the report and recommendation to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The right to de novo review may be waived by the failure to file timely objections. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The district court is obligated to conduct a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate's proposed findings and recommendations.” Id.

         II. Summary Judgment Review

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2010). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). When no genuine issue of any material fact exists, summary judgment is appropriate. See Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         III. Federal Habeas Review under 28 U.S.C. § 2254

         Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, in considering Petitioner's ineffective assistance of counsel claim, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, ” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”).

         To establish ineffective assistance of counsel, a petitioner must show that (1) “counsel's performance was deficient” and (2) “the deficient performance prejudiced the defendant.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove that counsel's performance was deficient, a petitioner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688, and that the “acts and omissions” of counsel were, in light of all the circumstances, “outside the range of professionally competent assistance.” Id. at 690. Such a determination “must be highly deferential, ” with a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689; see also, Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000) (reviewing court “must be highly deferential in scrutinizing [counsel's] performance and must filter the distorting effects of hindsight from [its] analysis”); Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994) (court must “presume that challenged acts are likely the result of sound trial strategy.”). To satisfy Strickland's prejudice prong, a “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The two prongs of the Strickland test are “separate and distinct elements of an ineffective assistance claim, ” and a successful petition “must show both deficient performance and prejudice.” Spencer, 18 F.3d at 233. Therefore, a court need not review the reasonableness of counsel's performance if a petitioner fails to show prejudice. Quesinberry v. Taylor, 162 F.3d 273, 278 (4th Cir. 1998). Additionally, to obtain habeas corpus relief, Petitioner must establish that the state court proceeding “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, ” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).

         Discussion

         The Magistrate Judge recommended that Respondent's motion for summary judgment be granted and Petitioner's petition dismissed with prejudice. As to each of Petitioner's four grounds, the Magistrate Judge found that Petitioner was not entitled to habeas relief. Petitioner filed objections to the R&R on October 24, 2016 setting forth six objections to the Magistrate Judge's R&R. The Court will address each objection below.

         Objection 1

         In his first objection, Petitioner objects to the Magistrate Judge relieving Petitioner's retained counsel. On February 22, 2016, Petitioner's retained counsel, Jeremy Thompson, Esq., filed an amended ex parte motion to withdraw as counsel citing a fundamental breakdown in the attorney-client relationship. The fundamental breakdown concerned a disagreement between Petitioner and Thompson on whether to withdraw one of Petitioner's allegations for relief. On February 29, 2016, Petitioner filed a response in opposition to Thompson's motion to withdraw arguing that Thompson had not provided an adequate reason for wanting to abandon one of Petitioner's claims and that there was no “irreparable damage” to the attorney-client relationship. The Magistrate Judge granted Thompson's motion to withdraw by Text Order on April 22, 2016.

         As an initial matter, Petitioner's objection to the Magistrate Judge relieving his retained counsel is untimely. Pursuant to Rule 72(a), a party has 14 days to file an objection to a Magistrate Judge's order on a nondispositive matter. Petitioner did not file an objection within the specified time. Petitioner's failure to timely raise an objection to the Magistrate Judge's order relieving Thompson constitutes a waiver of the issue as Rule 72(a) provides that “[a] party may not assign as error a defect in the order not timely objected to.” See, e.g., Giganti v. Gen-X Strategies, Inc., 222 F.R.D. 299, 304 n. 8 (E.D.Va.2004); See also Farmer v. McBride, 177 Fed.Appx. 327, 331 (4th Cir. 2006).

         Even if Petitioner had not waived his right to challenge the Magistrate Judge's order relieving Thompson, Thompson's motion to withdraw and Petitioner's response in opposition reflect a fundamental disagreement as to what issues to present in this case. The apparent inability to reconcile those differences represents a fundamental breakdown of the attorney-client relationship. Accordingly, the Magistrate Judge's order relieving Thompson as ...


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