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Bradley v. Warden Lieber Correctional Institution

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

February 25, 2018

Kevin C. Bradley, Petitioner,
v.
Warden, Lieber Correctional Institution, Respondent.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald, United States Magistrate Judge.

         The petitioner, a state prisoner who is proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

         BACKGROUND

         The petitioner is currently incarcerated at Lieber Correctional Institution in the South Carolina Department of Corrections (doc. 1 at 1). He was indicted by the Williamsburg County Grand Jury in October 2009 for one count of criminal sexual conduct (“CSC”) with a minor in the first degree and one count of CSC with a minor in the second degree (2009-GS-45-249) and for the same counts in an amended indictment in January 2010 (app. 347-50).[1] On January 25, 2010, the petitioner went before the Honorable Clifton Newman for a plea hearing. The plea hearing broke down when the petitioner told the trial court he did not wish to waive his right to trial. The State thereafter called indictment 2009-GS-45-249 to trial that same day (app. 7, 17). At trial, Richard Strobel represented the petitioner. Kimberly Barr appeared on behalf of the Third Circuit Solicitor's Office for the State (app. 9).

         Underlying Case Facts

         The following facts were testified to at the petitioner's trial. A nurse who treated the minor testified that the petitioner had impregnated his girlfriend's young cousin (“victim”) (app. 64-65, 76). The victim was eleven at the time the pregnancy was discovered. During the trial, there was a question of fact regarding whether the petitioner was having sex with the victim before her eleventh birthday in 2009 (app. 166). CSC with a minor first degree requires a sexual battery to have occurred upon a minor under the age of eleven. S.C. Code Ann. § 16-3-655(A). CSC with a minor second degree applies to a sexual battery with a minor between the ages of eleven and fourteen. Id. § 16-3-655(B). Testimony established that the petitioner had been engaging in sex with the victim since she was ten years old (app. 64-66, 80, 123, 193). The victim testified that the petitioner forced himself on her between five and ten times beginning during the summer of 2008 (app. 125). The victim testified that she told the petitioner to stop, but that did not work, so she “just gave up” (app. 128). Medical examination showed that the victim had old injuries consistent with sexual abuse and two sexually transmitted diseases (app. 147-49). A DNA analysis conducted with fetal tissue extracted from the victim showed that the fetus was consistent with being the offspring of the victim and the petitioner (app. 212). Doctors determined that the date of conception was May 21 or 22, 2009 (app. 193).

         The petitioner's girlfriend, who was the victim's cousin, testified on the petitioner's behalf (app. 219). The girlfriend testified that the victim was always chaperoned by an adult when she visited the apartment where the acts were alleged to have occurred, and that the victim would not be at that apartment babysitting as the victim claimed (app. 225-27). However, the girlfriend testified on cross-examination that there was no doubt in her mind that the petitioner had sexual intercourse with the victim (app. 237).

         The petitioner took the stand in his own defense to state that he had not engaged in sexual relations with the victim before February 5, 2009, but that he had engaged in sexual relations with her after February 5, 2009, and before her pregnancy was discovered (app. 244). The victim's birthday was February 8th (app. 59). On cross-examination, the petitioner appeared to claim that the victim came onto him, but denied followup questions to clarify his statement (app. 247-49). Then, he made an admission “to intercourse with a child at eleven” (app. 249-51).

         After a three-day trial, the jury found the petitioner guilty of both CSC with a minor first degree and second degree (app. 283). Judge Newman sentenced the petitioner to twenty-five years for CSC with a minor first degree and twenty years for CSC with minor second degree, to run concurrent (app. 307-08). The petitioner did not pursue a direct appeal.

         PCR

         On September 29, 2010, the petitioner filed an application for post-conviction relief (“PCR”) (2010-CP-45-00389) by and through his counsel, Tara Shurling. This application was incorrectly filed as it pertained not only to the indictment number upon which the petitioner was convicted at trial, but also to a second indictment number for a separate offense to which the petitioner pled guilty. An amended PCR application filed June 12, 2012, did the same (app. 310-23).

         On February 25, 2013, the petitioner filed a second amended PCR application that pertained to the proper indictment number (app. 329-35). The petitioner made the following allegations in his application:

(a) The Applicant received Ineffective Assistance of Counsel prior and during his trial in violation of his rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, as well as Article I, Section 14 of the South Carolina Constitution.
a. Counsel failed to provide client effective assistance of counsel prior to and during his trial proceeding. Inasmuch as Counsel failed to recognize errors which occurred during his trial, and therefore failed to make appropriate objections, and supporting legal arguments relating thereto. Counsel's failure to make these objections may have changed the outcome of the Applicant's trial and deprived him of the opportunity to have these issues addressed on their merits on direct appeal.
(b) Trial counsel deprived the Applicant of his right to a direct appeal by failing to file a Notice of Appeal on his behalf following his jury trial on Indictment No. 2009-GS-45-0249.
a. Trial counsel neglected to file a direct appeal for the Applicant and the Applicant did not knowingly and voluntarily waive his right to a direct appeal.

(App. 331).

         The State made a return dated October 28, 2013 (app. 336-41). The petitioner filed a third amended PCR application, alleging the following claims:

(a) Trial Counsel was ineffective for failing to sufficiently argue the validity of the race neutral explanations given by the Applicant for striking jurors during the selection of the first jury selected in his case.
(b) Trial Counsel was ineffective for failing to fully argue against the selection of a second jury panel in the Applicant's case where the reasons given by the Applicant for striking the jurors in question during the State's Batson challenge were sufficiently race neutral pursuant to known precedent in South Carolina at the time of the Applicant's trial.
(c) Trial Counsel was ineffective for failing to repeat and fully articulate for the record the Applicant's reasons for striking each of the jurors in dispute at his trial during the Batson hearing held pursuant to motion by the State.
(d) Trial Counsel was ineffective for failing to explain to the Applicant that all of his reasons for striking each juror against whom he exercised a peremptory strike had to be fully stated for the record as to each juror when the strike used against that particular juror was addressed during the Batson hearing held pursuant to the State's motion.
(e) Trial Counsel failed to provide the Applicant with reasonable professional assistance of counsel in that he failed to advise the Applicant, who being allowed by Trial Counsel to participate in decisions concerning the use of preemptory strikes in the selection of his jury, that in order to preserve a record for appeal from the trial court's ruling on a potential Batson motion by the State, he needed to be prepared fully articulate his reasons for using strikes against each juror.
(f) Trial Counsel failed to provide the Applicant with reasonable professional assistance of counsel in that he failed to restate for each juror addressed during the Batson hearing the Applicant's reasons for using strikes against each juror as articulated in Trial Counsel's general response to the State's Batson motion.
(g) Trial Counsel was ineffective for neglecting to exercise peremptory strikes to remove five (5) jurors from the Applicant's jury who had been previously struck by the Applicant in the selection of his first jury where the explanations given by the Applicant for the use of a strike against each of these jurors, if properly articulated, provided a race neutral justification for the use of a peremptory strike against each of these jurors.
(h) Trial Counsel was ineffective for characterizing the Applicant's reason for striking Juror number 96, Kenneth Lancaster, as an excuse, where this statement supported the prosecution's position that the reasons proffered by the Applicant for striking this juror were pretextual.
(i) Trial Counsel was ineffective for failing to fully articulate the Applicant's objection to the testimony of State witness Barbara Greggs and for failing to present appropriate authority in support of the Applicant's objection to this testimony.
(j) Trial Counsel was ineffective for failing to research and present potential character witnesses to testify in the Applicant's behalf at trial; specifically Sgt. Robert McClary, Debra Black, Manager at Skyes in Kingstree, South Carolina, Sgt. Staggers, employed with the 1052nd Transportation Company Army National Guard, and Frederick Davis of the Kingstree Police Department.
(k) Trial Counsel was ineffective for failing to present testimony from Sgt. Robert McClary, Army National Guard, who would have been able to present alibi evidence for some of the dates the Applicant was accused of committing sexual battery upon the victim, Shataria G. and where said witness could have presented character testimony for the Applicant.
(l) Trial Counsel was ineffective for failing to request a continuance after a material amendment to Applicant's indictment where the new indictment was presented to the Grand Jury days before the Applicant's trial, and where he was not made aware of the more serious charge brought in the new indictment until immediately before his trial.

(App. 342-45).

         The petitioner's PCR evidentiary hearing took place on May 27, 2014, before the Honorable R. Ferrell Cothran, Jr. Counsel Shurling appeared on behalf of the petitioner, and Assistant Attorney General Daniel Gourley appeared on behalf of the State (app. 363). The petitioner and his trial counsel testified (app. 364). During testimony, Counsel Shurling moved to amend the petition to add claims related to the trial testimonies of Robin Griggs and Trina Hamlet (app. 487).

         Judge Cothran denied and dismissed the petitioner's application in its entirety by order of dismissal filed August 25, 2014 (app. 511-40). On October 15, 2014, the petitioner filed a motion to alter or amend judgment to consider, inter alia, additional claims added to the application at the time of the hearing (app. 541-46). The motion referenced the petitioner's own proposed order that had been submitted prior to issuance of the order of dismissal (app. 482-510). The State made a return in opposition (doc. 29-4).

         In an order filed December 5, 2014, Judge Cothran granted the petitioner's motion to alter or amend in part, adding findings to its initial order of dismissal pertaining to the trial testimony of witness Robin Griggs (app. 547-51). The petitioner timely filed a notice of appeal (app. 552-53).

         PCR Appeal

         Counsel Shurling continued the petitioner's representation on PCR appeal (doc. 29-5). The petition for writ of certiorari presented the following issues:

I. Did the lower court err in finding [the petitioner] knowingly and voluntarily waived his right to a direct appeal?
II. Did the lower court err in finding that Trial Counsel was not ineffective in his representation of Petitioner on all the Batson related claims raised in this PCR action?
III. Did the lower court err in ruling that Trial Counsel was not ineffective for failing to request a continuance after a material amendment to Petitioner's indictment where the new indictment was presented to the Grand Jury days before the Petitioner's trial, and where he was not made aware of the more serious charge brought in the new indictment until immediately before his trial?
IV. Was Trial Counsel ineffective for failing to fully articulate the Petitioner's objection to the testimony of State witness Barbara Gregg, RN, for failing to present appropriate authority in support of the Petitioner's objection to this testimony and for failing to object to hearsay testimony from State witnesses Trina Hamlet and Robin Tyler Griggs, where said testimony was clearly hearsay and as such violated Petitioner's right to fully confront his accusers?
V. Was Trial Counsel ineffective for failing to object to testimony from forensic interviewer Robin Tyler Griggs in which she was allowed to offer expert opinion concerning the Victim's competency at the time of her taped interview where said testimony went beyond the scope of the expertise for which she was qualified as a witness and improperly bolstered the Victim's testimony?

(Doc. 29-5 at 3).

         In addition, the petition for writ of certiorari presented additional issues in an effort to garner a belated direct appeal pursuant to White v. State, 208 S.E.2d 35 (S.C. 1974) (in absence of timely direct appeal, a defendant can petition the appellate court for a review of the record to determine where a meritorious ground for appeal exists). Those issues appeared as follows:

1. The trial court erred, and thereby violated Petitioner's right to due process of law, by granting the State's Batson Motion where the record reflects that Petitioner set forth race neutral explanations for his use of a peremptory challenge to remove each of the jurors at issue in the State's motion.
2. The trial court erred, and thereby violated Petitioner's Confrontation Clause of the United States Constitution, by permitting State Witness, Barbara Gregg, to testify to statements made to her by the Victim concerning who the person responsible for her pregnancy was.
3. The trial court erred in allowing the State to introduce hearsay testimony through Nurse Practitioner, Barbara Gregg, and thereby violated Petitioner's rights pursuant to the Confrontation Clause of the Sixth Amendment of the United States Constitution, in which she was allowed to testify that the Victim told her “Kevin” had been having sex with her since she was ten years old.
4. The trial court erred, and thereby violated Petitioner's right to due process of law, by denying his motion for a directed verdict of acquittal on the charge of First Degree Criminal Sexual Conduct with a Minor where the State failed to present any direct evidence, or substantial circumstantial evidence, that a sexual battery involving penetration occurred before the Victim's eleventh (11th) birthday

(Doc. 29-5 at 4).

         On November 16, 2015, the State made the return to the petition (doc. 29-6). The petitioner, by and through counsel, filed a reply (doc. 29-7). The Supreme Court summarily denied the petition by order filed December 2, 2016 (doc. 29-8). The court issued its remittitur on December 20, 2016, and it was filed by the Williamsburg County Clerk's Office on December 22, 2016 (doc. 29-9).

         FEDERAL PETITION

         On March 13, 2017, the petitioner filed his § 2254 petition (doc. 1). On May 4, 2017, the petitioner filed an amended petition, which added grounds to the original petition (doc. 21). On July 6, 2017, the respondent filed a motion for summary judgment (doc. 28) and a return and memorandum (doc. 29). By order filed the same date, pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion (doc. 30). On September 1, 2017, the petitioner filed his response in opposition to the motion for summary judgment (doc. 36).

         In his federal habeas corpus petition, the petitioner makes the following claims:

Ground One: The PCR court erred in finding that Petitioner failed to meet his burden of proof that his claim that trial counsel provided ineffective assistance of counsel in that he failed to preserve Petitioner's right to direct appeal.
Supporting Facts: Trial counsel failed to advise petitioner of his Sixth and Fourteenth Amendment rights to a direct appeal, thereby failing to file a Notice of Appeal as well as failing to advise Petitioner of the advantages and disadvantages of taking a direct appeal. Trial counsel's testimony at State PCR evidentiary hearing reveals that he may have advised, in a rushed matter, an appeal to Petitioner. Trial counsel's testimony regarding direct appeal is inconsistent and lacking credibility. Trial counsel admits that he never discussed filing an appeal with Petitioner. Then claims that following Petitioner's conviction he “very quickly” told Petitioner he had a right to appeal and advised Petitioner “it must be done or he (counsel) must be notified within 10 days of [date of conviction]. Counsel initially unequivocally testified that Petitioner “didn't tell me he wanted to appeal, but he did not tell me I do not want to appeal.” After specifically testifying twice that Petitioner never told him he didn't want to appeal, trial counsel claimed that when he asked Petitioner if he wanted “to appeal, ” Petitioner say, “no.” Counsel also confirmed that he did not file an appeal on Petitioner's behalf.
Petitioner testified that he desired an appeal be filed. He also testified that there were at least two issues he would have wanted argued on his behalf in a direct appeal. One of the issues was the “selection of his jury” and the second was that the lower court erred in overruling his objections to Nurse Griggs' testimony.
Petitioner testified that trial counsel never discussed a direct appeal with him and that he did not realize at the time that trial counsel did not file an appeal on his behalf.
In light of the testimony heard at the PCR evidentiary hearing, Petitioner asserts that the PCR court erred in finding that he knowingly and voluntarily waived his right to a direct appeal of his convictions and sentences.
Petitioner further asserts that the PCR court's finding that trial counsel's actions were reasonable under the circumstances and did not fall below professional norms of reasonableness was an unreasonable application of as well as an objectively unreasonable determination of facts in light of trial counsel “sworn” inconsistent, incredible testimony, Strickland v. Washington, 466 U.S. 668 (1984); Roe v. Flores-Ortega, 528 U.S. 470 (2000), clearly established federal law.
Thus, counsel's failure to file a notice of appeal, as well as consult with Petitioner deprived Petitioner of his Sixth and Fourteenth Amendment right to the effective ...

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