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Paugh v. Reynolds

United States District Court, D. South Carolina

November 9, 2017

Joseph Paugh, #343216, Petitioner,
v.
Cecilia Reynolds, Respondent.

          REPORT AND RECOMMENDATION

          Kaymani D. West Florence, South Carolina United States Magistrate Judge

         Petitioner Joseph Paugh (“Petitioner”) is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 24, 25. On July 21, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 26. On November 6, 2017, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 36. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 25, be granted because Petitioner filed his habeas Petition after the expiration of the one-year statute of limitations.

         I. Background

         Petitioner is currently incarcerated in the Lee Correctional Institution (“LCI”) of the South Carolina Department of Corrections (“SCDC”). In 2009, Petitioner was indicted at the June term of the Greenville County Grand Jury for First-Degree Criminal Sexual Conduct with a Minor (“CSC”) (2009-GS-23-8144). App. 5; 374-75.[1] Petitioner proceeded to a jury trial on October 14, 2010, before the Honorable D. Garrison Hill, Circuit Court Judge. App. 1. Petitioner was represented by Public Defender Christopher D. Scalzo, and Assistant Solicitor Bryna S. Seay represented the State. Id. The jury found Petitioner guilty of the CSC charge. App. 270.Judge Garrison sentenced Petitioner to 30-years imprisonment for the conviction and instructed that Petitioner be placed on the Sex Offender Registry upon his release. App. 274-75. Appellate Defender Dayne C. Phillips represented Petitioner on appeal and raised the following issue:

Did the trial court abuse its discretion in allowing an expert witness to improperly vouch for a minor's veracity in a sexual abuse case against Appellant when no physical evidence was presented by the State and the minor's credibility was the critical determination of the case?

App. 277-91. Assistant Attorney General William M. Blitch filed a Response Brief on the State's behalf. App. 293-306. On December 19, 2012, the South Carolina Court of Appeals affirmed Petitioner's direct appeal in an unpublished/per curiam opinion. App. 318-19. On January 11, 2013, the South Carolina Court of Appeals remitted the matter to the Greenville County Clerk of Court. App. 320.

         II. Procedural History

         Petitioner filed an application for Post-Conviction Relief (“PCR”) on November 13, 2013 (2013-CP-23-06153). App. 321-377. The State filed a Return on May 28, 2014. App 338-42. A PCR hearing was held on October 22, 2014, before the Honorable Letitia H. Verdin. App. 344.

         Petitioner was present and represented by Brian Johnson; Assistant Attorney General Karen Ratigan appeared for the State. Id. Petitioner and trial counsel Scalzo testified as witnesses during the PCR hearing. App. 345-362. In an Order of Dismissal filed December 19, 2014, the PCR court denied Petitioner's PCR Application in full, making the following findings of fact and conclusions of law:

This Court has had the opportunity to review the record in its entirety and has heard the testimony and arguments presented at the PCR hearing. This Court has further had opportunity to observe each witness who testified at the hearing, and to closely pass upon their credibility. This Court has weighed the testimony accordingly.
S.C. Code Ann.

         Ineffective Assistance of Counsel

Frasier v. State 351 S.C. 385 570 S.E.2d 172

         For an applicant to be granted PCR as a result of ineffective assistance of counsel, he must show both: (1) that his counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) that he was prejudiced by his counsel's ineffective performance. See Strickland v. Washington, 466 U.S. 668, 686 (1984); Porter v. State, 368 S.C. 378, 629 S.E.2d 353, 356 (2006). Regarding the first prong, the Applicant must in essence show that counsel's advice was not “within the range of competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985). In order to prove prejudice, an applicant must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry v. State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989). A reasonable probability is “a probability sufficient to undermine confidence in the outcome of trial.” Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland, 466 U.S. at 686).

Simpson v. Moore 367 S.C. 587 McKnight v. State
378 S.C. 33 661 S.E.2d 354 Ard v. Catoe 372 S.C. 318 642 S.E.2d 590

         a. Trial Counsel's failure to investigate the date(s) of the incident(s).

         The Applicant testified at the PCR hearing that the incidents giving rise to the charge allegedly occurred over a span of six years, from 1998 to 2004. He argues that this broad range of time prevented him from preparing a proper defense and consequently deprived him of the effective assistance of counsel.

         This Court finds that the Applicant has failed to meet his burden of proving counsel was ineffective for failing to narrow down this timeframe. The evidence presented at the PCR hearing demonstrates that trial counsel conducted a reasonable investigation into the facts of the Applicant's case, as required by McKnight v. State, 378 S.C. at 46, 661 S.E.2d at 361. There was further no evidence that the result of the case would have been different had a different course of action been taken. This Court finds that trial counsel's investigation of the case and preparation for trial were reasonably effective under the prevailing professional norms of the legal community. Furthermore, the Applicant demonstrated no prejudice as a result of the date range use at trial.

         The Applicant argues that trial counsel was ineffective because he failed to seek and present an expert witness on Applicant's behalf. No testimony or other evidence was presented on this subject at the PCR hearing. The Applicant further has not demonstrated that, had an expert been called, the outcome of his trial would have been different. Therefore, this Court finds that the Applicant has not met his burden of proving that counsel was ineffective in this manner.

         The Applicant asserts that trial counsel was ineffective because he failed to object and request a mistrial after the Assistant Solicitor asked the Applicant, “How do you look at yourself in the mirror, every day after what you did to your daughter?” (Trial Tr. 220.)

         The Applicant's trial counsel testified that he recalled the comment and objected to it as soon as it was made. (See Trial Tr. 220.) Upon his objection the Assistant Solicitor withdrew the question and sat down. (Id.) Based on the Assistant Solicitor's actions, trial counsel did not in his judgment believe any further action was required.

Simpson v. Moore Ard v. Catoe

         d. Trial Counsel's failure to argue that the State violated Rule 403 of the ...


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