United States District Court, D. South Carolina
ORDER AND OPINION
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE
Rishawn Lamar Reeder is an inmate in custody of the South
Carolina Department of Corrections. He currently is housed at
Lee Correctional Institution in Bishopville, South Carolina.
This matter is before the court on Petitioner's petition
for relief under 28 U.S.C. § 2254, which petition was
filed on March 29, 2017.
AND PROCEDURAL HISTORY
March 14, 2009, Bryant Miller (“Bryant”); Dwight
Geter (“Dwight”); Marty; and D.G., Dwight's
younger brother (“Decedent”) were at Club Dream
in Spartanburg County, South Carolina. Transcript of Record
84-85 (“Trial Transcript”), ECF No. 91-1. Dwight,
Decedent, and Marty got into a fight with Darius Cathcart and
some others. Id. at 86. Bryant, Dwight, Marty, and
Decedent left the club and rode in Dwight's red Crown
Victoria to a Waffle House where they sat in the parking lot
for thirty or forty-five minutes. Id. at 88. They
left to take Decedent home. Dwight was driving, Marty was in
the passenger seat, Bryant was sitting behind Dwight, and
Decedent was sitting behind Marty. At a four-way stop, a dark
green Nissan pulled up next to the Crown Victoria on the
driver's side and an occupant or occupants started
shooting at the Crown Victoria. Bryant was shot in the neck.
Bryant returned fire, and the Nissan drove off. Id.
appears the bullet passed through Bryant's neck and
fatally struck Decedent in the neck. Id. at121. The
group dropped off Marty at the Geters' house, talked to
Decedent's mother, and drove to Mary Black Hospital,
where Decedent was pronounced dead upon arrival. Id.
the same time, Jack Christopher Durham of the Spartanburg
County Sheriff's Office received a call that there were
shooting victims at Mary Black Hospital and Spartanburg
Regional Hospital. Id. at 143-45. He traveled to
Spartanburg Regional Hospital and was advised Cathcart had a
grazing injury to his right side, and that Petitioner had
been shot in the hand or wrist. Id. at 151.
was brought into the Sheriff's Office for questioning.
Cathcart told Durham that he (Cathcart), Petitioner, and an
individual named Black had been at Club Dream and that he
(Cathcart) had been driving his girlfriend's grey Nissan.
Cathcart stated that he was taking Black and Petitioner home
when a vehicle came up beside them and the occupants started
shooting. According to Cathcart, the shooting occurred while
he, Petitioner, and Black were entering I-85. Black dropped
them off at Spartanburg Regional Hospital and drove off.
Id. at 158-59.
Charles Talanges of the Spartanburg County Sheriff's
Office also responded to the Spartanburg Regional Hospital,
where he collected gunshot residue and buccal swabs from
Cathcart, Michael Crossley, and Petitioner. Id. at
Davis, Patrick Cockrell, and Michael Shawn Nix of the
Spartanburg County Sheriff's Office responded to the
scene at the four-way stop and located some shell casings and
an unfired bullet. Id. at 229, 234. On March 15,
2009, David Hogsed of the Spartanburg County Sheriff's
Department executed a search warrant on the Crown Victoria,
which had been impounded. Hogsed located ten bullet holes on
driver's side of the vehicle, a lead projectile fragment
from the top of the dashboard on the driver's side, a
cartridge casing on the top of the dashboard on the
passenger's side, a cartridge case on the right side of
the floorboard, an unfired bullet on the right side rear
seat, a projectile on the left side rear seat, a cartridge
case on the front center console, a cartridge case in the
driver's seat, lead projectile from inside the
driver's door, among other things. Id. at
Davis, and Talanges searched a Nissan two days later that had
been set on fire. Hogsed identified a cartridge casing inside
the driver's seat. Id. at 244. Davis located a
cartridge casing on the front passenger floor area.
Id. at 296. Talanges located bullet holes and bullet
strikes to the passenger side, as well as a cartridge case in
the back floor area. Id. at 293-95. The vehicle
belonged to William Dendy, Cathcart's uncle, but Cathcart
made the payments and drove the car. Id. at 279-80.
No. crime scene was identified at the I-85 on-ramp described
by Cathcart. Id. at 233.
and Petitioner were indicted and charged with assault with
intent to kill, murder, and assault and battery with intent
to kill. They proceeded to trial before the Honorable Roger
L. Couch and a jury on May 9 - 12, 2011. Petitioner was
represented by Michael Brown, Esquire. Among other things,
Ila Simmons, forensic chemist of the South Carolina Law
Enforcement Division (SLED) forensic laboratory trace
evidence department was qualified as an expert in the field
of gun shot residue testing. Id. at 319-21. She
testified that residue was found on both of Petitioner's
palms as well as the back of his left hand. Residue was found
on both of Cathcart's palms. No. gunshot residue was
detected on Michael Crossley. Id. at 325. Kenneth H.
Whitler of SLED was qualified as an expert in the field of
firearms identification and testing. He testified that he had
tested eleven .40 caliber Smith and Wesson cartridge cases
and a 9-millimeter cartridge case. Of those, five were fired
by one firearm and five were fired by another firearm. The
eleventh cartridge case could have been fired by one of those
two firearms based on the class characteristics, or a third
weapon could have been involved. Whitler further testified
that a third weapon was required to shoot the 9- millimeter
cartridge, and that four weapons was the maximum number of
weapons that could have been involved, based on the fragments
that could not be identified as coming from a particular gun.
Id. at 354-56. The jury also was shown a
surveillance video from a business in the area of the
four-way stop that revealed a vehicle traveling toward the
four-way stop followed by another vehicle with its headlights
off. When the cars reached the four-way stop, the shooting
commenced. Id. at 303, 378-79.
jury found Cathcart and Petitioner guilty on all charges.
Id. at 465-66. The trial judge sentenced Cathcart to
20 years incarceration as to assault and battery with intent
to kill, 10 years as to assault with intent to kill, and 45
years as to murder, to run concurrently. Id. at 482.
The trial judge sentenced Petitioner to 20 years
incarceration as to assault and battery with intent to kill,
10 years as to assault with intent to kill, and to life as to
murder, to run concurrently. Id. at 484.
appealed his conviction and sentence to the South Carolina
Court of Appeals. Notice of Appeal, ECF No. 9-4. On August
30, 2011, the appeal was dismissed because Petitioner,
through counsel, failed to timely order the transcript and/or
serve and file the initial brief of appellant and designation
of matter. Order of Dismissal, ECF No. 9-5. Remittitur was
issued on September 14, 2011. Remittitur, ECF No. 9-6.
January 23, 2012, Petitioner filed for post-conviction relief
(PCR), as amended on May 24, 2012, April 16, 2013, April 19,
2013, January 6, 2014, April 7, 2014, May 5, 2014, and
October 22, 2014. Applications for Post-Conviction Relief,
ECF No. 9-1 (pp. 490-95; 498-500); ECF No. 9-2 (pp. 12-13;
22-23; 24; 25-27; 32-69. On November 3, 2014, Petitioner
appeared before the Honorable R. Keith Kelly for a PCR
hearing. Petitioner was represented by J. Falkner Wilkes,
Esquire. According to the PCR judge, Petitioner raised the
1. Ineffective assistance of counsel in that;
a. Counsel failed to use exculpatory evidence,
b. Counsel failed to object to alleged non-testifying
codefendant's out of court statements through
c. Counsel failed to confront and cross-examine Officer
d. Counsel requested a self-defense charge,
e. Counsel failed to conduct an independent investigation,
f. Counsel failed to interview alibi witnesses,
g. Counsel failed to present the Spartanburg Regional
h. Counsel failed to prevent alleged codefendant with
identification of shooter,
i. Counsel failed to make a motion for severance,
j. Counsel failed to object to jury charge instructing that
malice could be inferred from the use of a deadly weapon,
k. Counsel failed to present the gunshot residue analysis
information forms for [Petitioner] and alleged codefendant,
l. Counsel failed to call Loren Williams as a witness,
m. Counsel failed to object to the admission of
[Petitioner's] gunshot residue test,
n. Counsel failed to move to suppress gunshot residue test
pursuant to SCRE 403,
o. Counsel failed to move to quash the indictments before the
jury was sworn,
p. Counsel failed to investigate alleged deal between State
and alleged codefendant.
2. Due process violations, in that;
a. Violation of Sixth Amendment Confrontation Clause.
3. Prosecutorial misconduct, in ...