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Leaphart v. Eagleton

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

January 31, 2018

Kareem Jabbar Leaphart, Petitioner,
v.
Warden Willie L. Eagleton, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

         The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court upon Respondent's Motion for Summary Judgment (Dkt. No. 35) as to the remaining portions of Ground Two of Petitioner's habeas petition.

         Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.

         The Petitioner, through counsel, filed the instant action on December 10, 2015. (Dkt. No. 1.) On March 24, 2016, Respondent filed a Motion for Summary Judgment. (Dkt. No. 9; see also Dkt. No. 8.) On June 30, 2016, Petitioner filed a Response in Opposition to the Motion for Summary Judgment, to which Respondent filed a Reply. (See Dkt. No. 19; Dkt. No. 20.) In an Order dated March 29, 2017, Judge Childs granted in part and denied in part Respondent's Motion for Summary Judgment. (See Dkt. No. 28.) Specifically, summary judgment was granted to Respondent as to all grounds in the petition, save a portion of Ground Two. (See generally Dkt. No. 28.) Judge Childs recommitted those remaining matters to the undersigned for further consideration. (See id.)

         BACKGROUND

         The undersigned has been instructed to further analyze the following claims of ineffective assistance of counsel:

(a) in failing to object to the State's failure to lay a proper foundation for the introduction of the photocopy, and
(b) in failing to object to the repeated assertions by Agent Curry that the money in question was the buy money where the record is completely void of any evidence whatsoever that serial numbers, or any other distinguishing features of the money used, were recorded through any method.

(See Dkt. No. 28 at 6-7, 21-23.) As with the previous Report and Recommendation, the undersigned begins with a brief review of the evidence presented at Petitioner's trial.

         Douglas Curry, a narcotics agent employed by the Sheriff's Office in Lexington, testified that the Sheriff's Office had received several complaints from citizens living in a mobile home park in West Columbia that they believed drug activity was going on in the area. (R. at 46-47.) Curry testified that, as a result of these complaints, on March 15, 2006, he and other members of his team decided to “go out there and make an undercover sting.” (R. at 48.) Curry stated that they “use an undercover officer in an undercover car, and [they] go out and see if [they] have any takers on [their] undercover sting.” (R. at 48.) According to Curry, the police “went to the bank, took some money out of [their] narc account, ” and “issued it” to John Moore to make the undercover buys. (R. at 48-49.) Curry testified that they issued the money to John Moore, and the other officers stayed on the perimeter “like a holding pattern.” (R. at 49.) Curry stated that Moore's vehicle was fitted with a monitoring device so that police could hear what was going on in the vehicle. (R. at 50.) Curry testified that Petitioner approached Moore's vehicle and “told John to cut the block.” (R. at 50-51.) According to Curry, Moore drove around the block and came back to Petitioner; when the drug deal was complete, Moore “told [them] to go ahead and affect an arrest.” (R. at 51.) When the other officers “rolled up, ” Petitioner took off running. (R. at 51.) Curry stated, “Mr. Leaphart took off between two trailers right on the roadway. And as he did, he took what was in his pocket, threw it down on the ground, and continued to run with Agents Gleaton and Strange in pursuit.” (R. at 51-52.)

         Curry identified State's Exhibit 1 as “the money or some of the money” that Petitioner threw and Curry picked up; the exhibit was admitted over counsel's objection under Rules 1002 and 1003. (R. at 55.) As to State's Exhibit 2, Curry testified that the contents of that were “the one piece of crack cocaine that we originally purchased from [Petitioner], along with a baggie that contained several other pieces and a small baggie of powder cocaine”; according to Curry, “[t]his is what [Curry] recovered on the way back to [his] truck that [Petitioner] had thrown down when he took off running.” (R. at 54.) Curry clarified that Exhibit 2-B was the crack that Moore purchased from Petitioner; Exhibit 2-C “is the baggie that contained crack cocaine that [Petitioner] threw down, along with the $20 that he had gotten from John Moore when [officers] began chasing [Petitioner]”; and Exhibit 2-A was the cocaine powder that was in the baggie. (R. at 75.)

         John Moore, an employee of the Lexington County Sheriff's Office assigned to the narcotics unit, testified that on the day in question, he went undercover at the trailer park, “rid[ing] through it and see[ing] if anybody would sell [drugs] to [him].” (R. at 100-01.) He testified that State's Exhibit 3 was a videotape of the transaction as it occurred that day; it was admitted into evidence without objection. (R. at 101-02.) Moore testified that he pulled into the parking lot, and the Petitioner approached Moore, asking him what he needed. (R. at 103.) According to Moore, after some conversation, including the Petitioner asking to see Moore's “stem” (or “the tool or pipe that you use to smoke the crack with”), the Petitioner asked Moore to “cut around the block.” (R. at 103-05.) Moore testified that he cut the block, came back up to the Petitioner, received the crack from the Petitioner, and gave the Petitioner the $40. (R. at 1050-06.) Moore testified that he gave the Petitioner “$40 of narcotics funds, and [Petitioner] handed [Moore] some crack cocaine.” (R. at 103-07.) Moore identified State's Exhibit 2-B as the crack he received from Petitioner and gave to Agent Curry. (R. at 107.)

         Emily Homer, a chemist employed by the Lexington County Sheriff's Department, testified that State's Exhibit 2-A was .47 grams of cocaine hydrocholoride; State's Exhibit 2-B was .35 grams of cocaine base (also known as crack); and State's Exhibit 2-C was .94 grams of cocaine base. (R. at 132, 135-36.) State's Exhibit Numbers 2-A, 2-B, and 2-C were admitted during Ms. Homer's testimony. (R. at 137-38.)

         The jury convicted Petitioner of distribution of crack cocaine and resisting arrest. Petitioner was found not guilty of possession with intent to distribute crack cocaine and possession with intent to distribute cocaine. (R. at 215.)

inter alia
The court notes that, because the Magistrate Judge's analysis with respect to these two reasons addressed only whether trial counsel's performance was the result of a strategic decision, the Report did not address whether trial counsel's performance was otherwise deficient, whether, if so, prejudice resulted from his failure to raise the objections to which Petitioner points, whether, if so, these defaulted claims of ineffective assistance are substantial, and whether, if so, PCR counsel's failure to assert the defaulted claims amounts to cause and prejudice under Martinez. The court also notes that the parties' arguments with respect to these two reasons under Ground Two are somewhat cursory and provide little authority to guide judicial analysis. See Id. Denying summary judgment without prejudice at this point will allow Respondent to refile his motion and will allow the parties to present more fully developed arguments on the issues. See id.

(Dkt. No. 28 at 22-23.) The parties have filed additional briefs with regard to the remaining claims of ineffective assistance of counsel. (Se ...


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