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Leaphart v. Eagleton

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

March 28, 2018

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


         Petitioner Kareem Jabbar Leaphart seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to Respondent Warden Willie L. Eagleton's renewed Motion for Summary Judgment (ECF No. 35) as to the remaining portions of Ground Two of Petitioner's habeas petition. As set forth below, the court GRANTS Respondent's renewed Motion for Summary Judgment (id.) and ACCEPTS the Magistrate Judge's Report and Recommendation (“Report”) (ECF No. 37).


         The court begins with a brief review of the evidence presented at Petitioner's trial. Douglas Curry (“Curry”), a narcotics agent employed by the Sheriff's Office in Lexington, South Carolina, 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. (ECF No. 8-1 at 48-49.) 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.” (Id. at 50.) Curry stated that they “use[d] an undercover officer in an undercover car, and [they went] out [to] see if [they had] any takers on [their] undercover sting.” (Id.) According to Curry, the police “went to the bank, took some money out of [their] narc[otics] account, ” and “issued it” to John Moore (“Moore”), an employee of the Lexington County Sheriff's Office assigned to the narcotics unit, to make the undercover buys. (Id. at 50-51.) Curry testified that they issued the money to Moore, and the other officers stayed on the perimeter “like a holding pattern.” (Id. at 51.) Curry stated that Moore's vehicle was fitted with a monitoring device so that police could hear what was going on in the vehicle. (Id. at 50.) Curry testified that Petitioner approached Moore's vehicle and “told [Moore] to cut the block.” (Id. at 52-53.) 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.” (Id. at 53.) When the other officers “rolled up, ” Petitioner took off running. (Id.) Curry stated, “[Petitioner] 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.” (Id. at 53-54.)

         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 South Carolina Rules of Evidence 1002 and 1003. (Id. at 57.) 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.” (Id. at 56.) 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. (Id. at 77.)

         Moore 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].” (Id. at 102-03.) 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. (Id. at 103-04.) Moore testified that he pulled into the parking lot, and Petitioner approached Moore, asking him what he needed. (Id. at 105.) According to Moore, after some conversation, including Petitioner asking to see Moore's “stem” (or “the tool or pipe that you use to smoke the crack with”), Petitioner asked Moore to “cut around the block.” (Id. at 105-07.) Moore testified that he cut the block, came back up to Petitioner, received the crack from Petitioner, and gave Petitioner the $40. (Id. at 107-08.) Moore testified that he gave Petitioner “$40 of narcotics funds, and [Petitioner] handed [Moore] some crack cocaine.” (Id. at 105-109.) Moore identified State's Exhibit 2-B as the crack he received from Petitioner and gave to Agent Curry. (Id. at 109.)

         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. (Id. at 134, 137-8.) State's Exhibit Numbers 2-A, 2-B, and 2-C were admitted during Ms. Homer's testimony. (Id. at 139-40.)

         The jury convicted Petitioner of distribution of crack cocaine and resisting arrest. (ECF No. 8-2 at 13.) Petitioner was found not guilty of possession with intent to distribute crack cocaine and possession with intent to distribute cocaine. (Id.)


         Petitioner filed his habeas petition on December 10, 2015. (ECF No. 1.) On March 24, 2016, Respondent filed a Motion for Summary Judgment. (ECF No. 9.) On June 30, 2016 Petitioner filed a response in opposition to the Motion for Summary Judgment (ECF No. 19), to which Respondent filed a reply (ECF No. 20). On January 23, 2017, Magistrate Judge Mary Gordon Baker filed a Report, recommending that Respondent's Motion for Summary Judgment (ECF No. 9) be granted and Petitioner's habeas petition be dismissed with prejudice. (ECF No. 21.) In an Order dated March 29, 2017, the court granted in part and denied in part Respondent's Motion for Summary Judgment. (ECF No. 28.) Specifically, summary judgment was granted to Respondent as to all grounds in the petition except to a portion of Ground two, namely the following claims of ineffective assistance of counsel:

(a) failing to object to the State's failure to lay a proper foundation for the introduction of the photocopy of currency that the State contended was part of the drug buy, [1] and
(b) 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.[2]

(Id. at 6-7, 21-23.) The court stated in its Order, 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 some what cursory and provide little authority to guide judicial analysis.
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.

(Id. at 23.) Accordingly, the court recommitted the remaining two claims of ineffective assistance to the Magistrate Judge for further consideration. (Id. at 26.) Thereafter, the Magistrate Judge ordered the parties to file any additional motions in the case on or before May 5, 2017. (ECF No. 30.)

         On May 5, 2017, Respondent filed a renewed Motion for Summary Judgment asserting three arguments. (ECF No. 35.) First, Respondent states that because Agent Curry's testimony clearly demonstrates that the photocopy was of two bills that the team obtained from the bank, that they were actually issued to Agent Moore and that they were used in the undercover drug buy, an objection based upon the States' supposed failure to establish a proper foundation of the admission of the currency under South Carolina Rule of Evidence 901 would have been meritless. (Id. at 15-16.) Second, Respondent posits that Agent Curry's testimony was not based upon opinions drawn by him. (Id. at 19.) Instead, “Agent Curry's testimony that the photocopies were of the “buy money” was strictly based on matters within his personal knowledge: he was involved in obtaining the money from the bank that was subsequently used in the undercover buy; he gave the money to Agent Moore, and he was able to identify the money that he picked up from the ground in the area where Petitioner had dropped it as the money used in the transaction. He could also testify that the photocopy was of the same money.” (Id.) Lastly, Respondent concludes that neither piece of evidence, although both relevant and probative, was necessary to successfully prosecute Petitioner for distribution of crack cocaine. (Id. at 24-25.) Consequently, Respondent proclaims that Petitioner cannot prove that he was prejudiced by trial counsel's inactions. (Id.)

         On May 15, 2017, Petitioner filed a reply, asserting that “the evidence in fact refutes any claim that Agent Curry saw the evidence in question thrown to the ground. Agent Curry not only does not say he saw Petitioner throw this evidence to the ground, he does not even claim he went to the spot where he saw Petitioner discard the baggie, but rather stated that he “recovered it” on his way back to this vehicle.” (ECF No. 36 at 4-5.) Petitioner espouses that evidence of the bills' existence corroborates the testimony of Agent Curry and Agent Moore, which makes their testimony that a money-for-drugs transaction occurred more likely, highlighting the precise reasons why the introduction of this evidence is highly prejudicial to his case. (Id. at 5-6.)

         On January 31, 2018, the Magistrate Judge filed a second Report, recommending that Respondent's Renewed Motion for Summary Judgment be granted and that Petitioner's habeas petition be dismissed with prejudice. (ECF No. 37.) The parties were advised of their right to file objections to the Report. (ECF No. 37 at 13.) On March 16, 2018, Petitioner filed an objection to the Report. (ECF No. 42.) Petitioner maintained that it is impossible to know to what degree Petitioner's jury was unduly influenced by State's Exhibit No. 1 and Curry's claims that he knew it depicted money thrown to the ground by Petitioner and that the bills in question were the same bills given to Agent Moore and used in a ...

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