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Thomas v. Warden, Perry Correctional Institution

United States District Court, D. South Carolina

January 31, 2018

Efrain Thomas, #314836, Petitioner,
v.
Warden, Perry Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          Kaymani D. West United States Magistrate Judge.

         Petitioner Efrain Thomas (“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. 20, 21. On June 30, 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. 22. After the undersigned granted Petitioner several extensions, Petitioner's failure to file a response persisted. See ECF Nos. 29, 34, 38, 42, 49. On November 20, 2017, William Glenn Yarborough filed a Notice of Appearance on Petitioner's behalf. ECF No. 47. After counsel's appearance, the undersigned instructed Petitioner to file a Response on or before December 15, 2017. ECF No. 49. On December 20, 2017, Petitioner filed a Response. ECF No. 53. Respondent replied to Petitioner's Response on December 27, 2017. ECF No. 55. Having carefully considered the parties' submissions and the record in this case, the undersigned finds that this petition is untimely. The undersigned also finds that Petitioner is not entitled to equitable tolling of the statute of limitations. Therefore, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 20, be granted.

         I. Background

         Petitioner is currently incarcerated in the Turbeville Correctional Institution (“TCI”)[1] of the South Carolina Department of Corrections (“SCDC”). In 2005, Petitioner was indicted at the November/December session of the Lee County Grand Jury for Murder and Possession of a Firearm during a crime of violence. (2005-GS-31-102). App. 848-49.[2] Petitioner proceeded to a jury trial on April 4, 2006, before the Honorable Clifton Newman, Circuit Court Judge, along with two other co-defendants. App. 1. Petitioner was represented by Public Defender William W. Wheeler, III, and Assistant Solicitor James P. Saverance, Jr., represented the State. Id. The jury found Petitioner guilty of all charges. App. 720-721. Judge Newman sentenced Petitioner to 30-years imprisonment for the murder conviction and five-years imprisonment for the possession conviction. App. 740. Chief Appellate Defender Joseph L. Savitz, III, represented Petitioner on appeal and raised the following issue:

The trial court committed reversible error by allowing the State to impeach Thomas with a prior conviction for unlawful possession of a weapon, as this evidence was unduly prejudicial and tended to place his character in issue in violation of Rules 403 and 404, SCRE.

         ECF No. 21-3. Assistant Deputy Attorney General Donald J. Zelenka filed a Response Brief on the State's behalf. ECF No. 21-4. On January 22, 2009, the South Carolina Court of Appeals affirmed Petitioner's conviction in an unpublished/per curiam opinion. App. 742. On February 11, 2009, the South Carolina Court of Appeals remitted the matter to the Lee County Clerk of Court. ECF No. 21-5.

         II. Procedural History

         Petitioner filed an application for Post-Conviction Relief (“PCR”) on September 11, 2009 (2013-CP-31-0184). App. 743-49. The State filed a Return on January 11, 2010. App 750-53. A PCR hearing was held on December 12, 2012, before the Honorable R. Ferrell Cothran, Jr. App. 755-831. Petitioner was present and represented by Kenneth R. Young, Jr.; Assistant Attorneys General (“AAGs”) Megan Harrington and Ben Aplin appeared for the State. Id. Petitioner and trial counsel Wheeler testified as witnesses during the PCR hearing. App. 765-830. In an Order of Dismissal filed February 14, 2013, 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 at the post-conviction relief hearing. This Court has further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility and weigh their testimony accordingly. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. Code Ann. §17-27-80 (1985).
Ineffective Assistance of Counsel
In a post-conviction relief action, the Applicant has the burden of proving the allegations in his application. Rule 71.1(e), SCRCP; Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where ineffective assistance of counsel is alleged as a ground for relief, the Applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.E.2d 674, 692 (1984); Butler, 286 S.C. 441, 334 S.E.2d 813 (1985).
The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler, 286 S.C. 441, 334 S.E.2d 813 (1985). The Applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
Courts use a two-pronged test in evaluating allegations of ineffective assistance of counsel. First, the Applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its “reasonableness under professional norms.” Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland). Second, counsel's deficient performance must have prejudiced the Applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625.
After careful review based on the standard discussed above, the Applicant has failed to carry his burden in this action. Specifically, this Court finds that Counsel's testimony is credible while Applicant's testimony is not credible. Below are this Court's findings in regards to each of Applicant's allegations of ineffective assistance of counsel.
Counsel was ineffective for failing to request a jury charge of Assault and Battery with Intent to Kill.”
Applicant alleges that Counsel was ineffective for failing to request the trial court instruct the jury on the crime of Assault and Battery with Intent to Kill. At the evidentiary hearing, Applicant testified that the victim was shot during a fight and acknowledged that he fired a weapon at the victim, but that it was his co-defendant's shots that actually caused the victim's death. Applicant testified that he never intended to kill the victim, but acknowledged that the victim did die as a result of multiple gunshot wounds. Applicant testified that his defense at trial was self-defense and defense of others. He stated that he discussed the issue of whether to request a jury charge of Assault and Battery with Intent to Kill with Counsel and the decision was made not to do so, because the defense strategy was to show that Applicant was acting in self-defense of his co-defendant, Eunice McCall. Counsel testified that the defense put forth at trial was defense of others, as Applicant shot the victim while he was attaching [sic] his co-defendant Eunice McCall. Counsel testified that an Assault and Battery with Intent to Kill jury instruction would have been incongruent with this defense. Counsel also testified that this charge was not warranted based on the evidence presented because the autopsy performed on the victim showed that small caliber bullets from Applicant's weapon were potentially fatal as well and the victim did die as a result of multiple gunshot wounds.
Based on the foregoing, this Court finds that the Applicant has not shown that trial counsel's performance fell below “professional norms.” Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland). Based on the Court's review of the trial transcript and the testimony presented at the evidentiary hearing, this Court finds that Counsel's decision not to request an Assault and Battery with Intent to Kill jury instruction was not error. This Court finds that the testimony of the pathologist who testified at trial reveals that Applicant's gun shots would have killed the victim. The fact that the co-defendant's bullet may have killed the victim first does not warrant an Assault and Battery with Intent to Kill instruction, as the victim did die, and could have died as a result of Applicant's two gun shots. Thus, there is evidence on the record that his actions would have led to death and he is not entitled to the lesser charge because “there is [no] evidence from which it could be inferred the lesser, rather than the greater, offense was committed.” Dempsey v. State, 363 S.C. 365, 371, 610 S.E.2d 812, 815 (2005) (emphasis added). Therefore this Court finds this allegation must be denied and dismissed with prejudice.
Counsel was ineffective for failing to object to the trial court's instruction on the proximate cause of the victim's death”
Applicant alleges that Counsel was ineffective for failing to object to the trial court's instruction on proximate cause of the victim's death. See Tr. pp. 696 lines 3-20. At the evidentiary hearing, Applicant testified that because the pathologist testified that his shots were “potentially fatal” to the victim, he did not proximately cause the victim's death. Counsel testified that the trial court's instruction on proximate cause is the standard proximate cause jury charge given by courts across South Carolina and that he saw no reason to object to this charge. Counsel testified that he thought this charge was proper based on the evidence presented at trial. Based on the Court's review of the trial transcript and the testimony presented at the evidentiary hearing, this Court finds that Counsel's performance was not deficient for not objecting to the trial court's proximate cause instruction. This Court finds that the testimony of the pathologist who testified at trial reveals that Applicant's gun shots would have killed the victim and that a proximate cause instruction was warranted and supported by the evidence. Based on the foregoing, this Court finds that Counsel's performance was not deficient in regards to this allegation, which must be denied and dismissed with prejudice.
Counsel was ineffective for failing to object to the trial court's admission of his prior weapon charge to impeach his credibility”
Applicant alleges that Counsel was ineffective for failing to object to the trial court's admission of his prior weapon charge to impeach his credibility. Counsel testified that he made a motion to exclude Applicant's 2003 Possession of a Weapon charge from New York, arguing that it would be prejudicial to his client. See Tr. pp. 444 lines 5-21. Counsel testified, and the trial transcript shows, that the trial court ruled that Applicant's prior conviction was admissible for impeachment purposes. See Tr. pp. 449 lines 6-8. Counsel testified that after the trial court ruled this prior conviction could be used to impeach Applicant, he made a strategic decision to bring up his prior conviction during his direct examination of Applicant so that the jury would not think he was attempting to hide anything or be dishonest.
See Tr. pp. 493 lines 8-16. Counsel testified that he did not think Applicant suffered any prejudice, as Applicant never denied possessing or shooting a weapon in this case. Counsel elaborated that Applicant's entire defense centered on Applicant shooting the victim in defense of co-defendant McCall and the trial was full of admissions that Applicant had not only possessed a weapon but had also fired a weapon.
Our courts are understandably wary of second-guessing defense counsel's trial tactics. Where counsel articulates valid reasons for employing a certain strategy, counsel's choice of tactics will not be deemed ineffective assistance. Whitehead v. State, 308 S.C. 119, 417 S.E.2d 530 (1992). See also Dempsey v. State, 363 S.C. 365, 610 S.E.2d 812 (2005); McLaughin v. State, 352 S.C. 476, 575 S.E.2d 841 (2003). Here, Counsel articulated valid strategic reasons for introducing Applicant's prior weapon charge during his direct examination after the trial court ruled such charge was admissible for impeachment purposes. The Applicant has not shown that counsel was deficient in that choice for tactics. Additionally, Applicant has failed to establish any prejudice resulting from Counsel's performance in this regard, as his defense did not challenge that he possessed, and fired, a weapon during this incident. Therefore, this Court finds Counsel's performance was not ineffective and this allegation must be denied and dismissed with prejudice.
Counsel was ineffective for failing to object to the prosecuting assistant solicitor's comments on his post arrest silence”
Applicant alleges that Counsel was ineffective for failing to object to the following comments made by the prosecuting assistant solicitor during his closing argument:
“A short time after this crime occurred, he talked to Captain Burke. He didn't say he was threatened or coerced to say anything. He acknowledged that he told Captain Burke he had nothing to do with it. He was in Camden. He didn't say, I was defending my friend. Didn't say self defense. He said I wasn't involved at all. A lie. A lie, ladies and gentlemen. And you determine how much you believe in of what somebody says. Look at the track record. The past history.”
Tr. pp. 669 lines 12-20. Counsel testified that these comments are not regarding Applicant's post-arrest silence, but rather are highlighting that Applicant did talk to law enforcement and gave a contradictory statement to his in-court testimony. This Court has reviewed the trial transcript, as well as testimony presented at the evidentiary hearing, and finds that Counsel was not deficient in his performance. This Court agrees with Counsel that these comments do not refer to any post-arrest silence but to Applicant's contradictory statements. Therefore, this Court finds Counsel's performance was not ineffective and this allegation must be denied and dismissed with prejudice.
“Counsel was ineffective for failing to object to the prosecuting assistant solicitor's comments on his ...

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