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Reeder v. Reynolds

United States District Court, D. South Carolina

March 22, 2018

Rishawn Lamar Reeder, #282918, Petitioner,
v.
Warden Reynolds, Lee Correctional Institution, Respondent.

          ORDER AND OPINION

          MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         FACTS AND PROCEDURAL HISTORY

         On 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. at 88-92.

         It 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. at 128.

         Around 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.

         Cathcart 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.

         Robert 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 257-59.

         Tim 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 239-40.

         Hogsed, 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.

         Cathcart 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.

         The 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.

         Petitioner 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.

         On 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 following issues:

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 investigators' testimonies,
c. Counsel failed to confront and cross-examine Officer Heather Forrester,
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 Hospital video,
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 ...

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