United States District Court, D. South Carolina, Orangeburg Division
REPORT AND RECOMMENDATION
Kaymani D. West Florence, Judge
Shawn Davis (“Petitioner”) is a state prisoner
who filed this pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. This matter is before the
court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local
Civil Rule 73.02(B)(2)(c) DSC, for a Report and
Recommendation on Respondent's Return and Motion for
Summary Judgment. ECF Nos. 21, 22. On May 22, 2018, pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), the court advised Petitioner of the Summary Judgment
Motion, dismissal procedures, and the possible consequences
if he failed to respond adequately to Respondent's
Motion. ECF No. 23. On June 1, 2018, Petitioner filed a
Response in Opposition to Respondent's Motion for Summary
Judgment. ECF No. 25. On August 10, 2018, Petitioner filed a
Supplement to his Response. ECF No. 27. Respondent did not
file a Reply. Having carefully considered the parties'
submissions and the record in this case, the undersigned
recommends that Respondent's Motion for Summary Judgment,
ECF No. 22, be granted, and this Petition be denied.
is currently incarcerated in the Lee Correctional Institute
(“LCI”) of the South Carolina Department of
Corrections (“SCDC”). ECF No. 1 at 1. Petitioner
was indicted by the Anderson County Grand Jury during the May
21, 2013, Term of the Anderson County Court of General
Sessions for one count of Murder - (2013-GS-04-00861). App.
78-80. On October 2, 2013, Petitioner pleaded
guilty to one count of murder. App. 1-23. During his plea,
Attorney Hervery Young represented Petitioner, and Assistant
Solicitor Catherine T. Huey appeared on behalf of the State.
App. 1. The Honorable R. Lawton McIntosh sentenced Petitioner
to 30-years imprisonment for the murder charge. App. 22.
Judge McIntosh gave Petitioner credit for the time served.
did not file a direct appeal. Petitioner filed an application
for Post-Conviction Relief (“PCR”) on May 14,
2014 (2014-CP-04-1013). App. 24-30. Petitioner
asserted he was being held in custody unlawfully for:
“(a) Ineffective Assistance of Counsel; and (b) No.
Blair Hearing.” App. 25. Additionally, under facts to
support his claims Petitioner alleged, verbatim: “(a)
counsel failed to investigate . . . to have a Blair hearing
when Counsel knew of (b) my long history of mental health
problems.” App. 26.
State filed a Return on October 28, 2014, and requested that
a hearing be held. App. 31-34. A motions hearing convened on
September 2, 2015, before the Hon. Frank R. Addy. App 35- 69.
Attorney Hugh Wingo Wellborn represented Petitioner, who was
present, and Assistant Attorney General Joshua Thomas
appeared on behalf of the State. Id. Petitioner and
Hervey Young, plea counsel, appeared and testified at the
hearing. Id. After the hearing, the PCR court denied
and dismissed with prejudice Petitioner's PCR Application
in an order filed on March 28, 2016, making the following
summaries of evidence and testimony, findings of fact, and
conclusions of law:
This Court has reviewed the testimony presented at the
evidentiary hearing, observed the witnesses presented at the
hearing, passed upon their credibility, and weighed the
testimony accordingly. Further, this Court reviewed the Clerk
of Court records regarding the subject guilty plea,
Applicant's records from the South Carolina Department of
Corrections, the application for post-conviction relief, the
transcripts and documents from the prior proceedings, and
legal arguments of counsel. Pursuant to S.C. Code Ann.
§17-27-80 (2015), this Court makes the following
findings of fact based upon all of the probative evidence
As a matter of general impression, this Court finds that
counsel presented credible testimony, to the effect that he
prepared thoroughly for Applicant's criminal proceedings
and had a firm grasp of all relevant issues. Applicant's
conflicting testimony was not credible, especially in light
of his sworn statements during the guilty plea hearing.
Ineffective Assistance of Counsel
In a post-conviction relief action, the applicant has the
burden of proving the allegations in the application. Rule
71.1(e), SCRCP; Butler v. State, 286 S.C. 441, 334
S.E.2d 813 (1985). Where ineffective assistance of counsel is
alleged as a ground for relief, the Applicant must prove that
"counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied upon as having produced a just result."
Strickland v. Washington, 466 U.S. 668, (1984);
Butler, 286 S.C. 441, 334 S.E.2d 813.
The proper measure of performance is whether the attorney
provided representation within the range of competence
required in criminal cases. Courts presume that counsel
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment. Butler, 286 S.C. 441, 334 S.E.2d 813. The
applicant must overcome this presumption to receive relief.
Cherry v. State, 300 S.C. 115, 386 S.E.2d 624
Courts use a two-pronged test in evaluating allegations of
ineffective assistance of counsel. First, the applicant must
prove that counsel's performance was deficient. Under
this prong, attorney performance is measured by its
“reasonableness under professional norms.”
Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing
Strickland). Second, counsel's deficient
performance must have prejudiced the applicant such that
“there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Cherry,
300 S.C. at 117-18, 386 S.E.2d at 625. With respect to a
guilty plea, the Applicant must show that there is a
reasonable probability that, but for counsel's alleged
errors, he would not have pled guilty and would have insisted
on going to trial. Hill v. Lockhart, 474 U.S. 52,
106 S.Ct. 366 (1985).
a. Failure to Investigate
Applicant has failed to meet his burden with respect to this
allegation. Without a doubt, "[a] criminal defense
attorney has a duty to investigate, but this duty is limited
to a reasonable investigation." Ard v. Catoe,
372 S.C. 318, 331-32, 642 S.E.2d 590, 597 (2007).
Accordingly, the controlling standard for counsel's duty
to investigate is reasonableness. Edwards v. State,
392 S.C. 449, 457, 710 S.E.2d 60, 64 (2011). So long as a
defendant's attorney conducts a reasonable investigation,
including interviewing potential witnesses when it is
reasonable to do so, his performance will not be deficient.
Id. at 457, 710 S.E.2d at 65. Moreover, failure to
conduct an independent investigation does not constitute
ineffective assistance of counsel when the allegation is
supported only by mere speculation as to the result.
Moorehead v. State, 329 S.C. 329, 334, 496 S.E.2d
415, 417 (1998).
This Court finds that counsel met with Applicant a sufficient
number of times to prepare for trial and observe his
demeanor. Counsel testified credibly that he met with
Applicant seven times and reviewed discovery with him. This
Court finds Applicant's contrary assertions concerning
only meeting counsel twice lacking in credibility. Counsel
said he also hired an investigator, who interviewed
Applicant's neighbor, wife, and daughter. Concerning
Applicant's history of mental illness, counsel said that
he reviewed Applicant's psychological records with an
expert and determined a mental health evaluation was not
necessary. This Court therefore finds that Applicant has
failed to meet his burden to prove counsel's
investigation was not reasonable given the circumstances of
this case. This allegation is therefore denied and dismissed.
b. Failure to Request a Blair
Applicant has also failed to meet his burden to prove counsel
was ineffective in failing to request a Blair
hearing. Due process prohibits the conviction of a person who
is mentally incompetent. Jeter at 232, 417 S.E.2d at
595 (citing Bishop v. United States, 350 U.S. 961,
76 S.Ct. 440, 100 L.Ed. 835 (1956). This right cannot be
waived by a guilty plea. Jeter at 232, 417 S.E.2d at
595 (citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct.
836, 15 L.Ed.2d 815 (1966). The test of competency to enter a
plea is the same as required to stand trial. State v.
Lambert, 266 S.C. 574, 225 S.E.2d 340 (1976). The
accused must have sufficient capability to consult with his
lawyer with a reasonable degree of rational understanding and
have a rational as well as a factual understanding of the
proceedings against him. Carnes v. State, 275 S.C.
353, 271 S.E.2d 121 (1980). In determining whether a
competency hearing is warranted, an attorney is permitted to
reasonably rely on his own perceptions of the client. See
Jeter at 233, 417 S.E.2d at 596; Lee v. State,
396 S.C. 314, 322, 721 S.E.2d 442, 447 (Ct. App. 2011)
(finding plea counsel could not be deficient if she had no
indication of client's mental state).
Based upon the testimony and the evidence presented at the
evidentiary hearing, this Court finds that counsel thoroughly
investigated Applicant's mental health issues, and no
grounds existed for additional evaluations to be conducted.
Counsel had Applicant's existing mental health records
reviewed by an outside expert who indicated that no further
testing was needed. Clearly, Applicant was competent to stand
trial and assist his counsel, and he understood right from
wrong at the time of the incident.
Applicant has also failed to show prejudice. To show
prejudice arising from failure to request a competency
hearing, "the [applicant] bears the burden of proof to
show by a preponderance of the evidence he was incompetent at
the time of his plea." Jeter v. State, 308 S.C.
230, 232, 417 S.E.2d 594, 569 (1992). Applicant did not
present any evidence or credible testimony during the
evidentiary hearing that would suggest to this Court that he
was not competent at the time of his guilty plea. As
Applicant has failed to meet his burden with respect to this
allegation, it is denied and dismissed.
ALL OTHER ALLEGATIONS
As to any and all allegations that were raised in the
application or at the hearing in this matter and not
specifically addressed in this order, the Court finds
Applicant failed to present any evidence regarding such
allegations. Accordingly, the Court finds Applicant has
abandoned any such allegations.
Based on the foregoing, this Court finds that the Applicant
has not established any constitutional violations or
deprivations that would require this Court to grant his
application for post-conviction relief. Therefore, this
application for post-conviction relief must be denied and
dismissed with prejudice.
This Court notes that Applicant must file and serve a notice
of intent to appeal within thirty (30) days from receipt of
this Order to secure the appropriate appellate review.
See Rule 203, SCACR. Rule 71.1(g), SCRCP; Bray
v. State, 336 S.C. 137, 620 S.E.2d 743 (2005), for the
obligation of Applicant's counsel to file and serve
notice of appeal. The Applicant's attention is also
directed to South Carolina Appellate Court Rule 243 for
appropriate procedures after notice has been timely filed.
IT IS THEREFORE ORDERED
1. That the Application for Post-Conviction Relief must be
denied and dismissed with prejudice; and
2. Applicant must be remanded to the custody of Respondent
counsel filed a Notice of Appeal on April 8, 2016. ECF No.
21-3 at 2. Appellate Defender LaNelle Cantey DuRant
represented Petitioner on appeal, filing a Johnson
Petition for Writ of Certiorari in the South
Carolina Supreme Court. ECF No. 21-4 at 1-13. The Petition
presented the following issue: “Did the PCR court err
in not finding plea counsel ineffective for failing to insure
that Petitioner's guilty plea was voluntarily entered
because plea counsel failed to request a Blair
hearing to determine if Petitioner Davis should undergo a
mental evaluation for competency and criminal responsibility
because Petitioner had a history of mental illness and
because he was charged with the murder of his mother by
burning?” ECF No. 21-4 at 3. On March 2, 2017, The S.C.
Supreme Court transferred Petitioner's Johnson
petition to the S.C. Court of Appeals. ECF No. 21-7 at 9, 12.
On January 23, 2018, the S.C. Court of Appeals denied the
Petition for Writ of Certiorari and granted appellate
counsel's petition to be relieved as counsel. ECF No.
21-8 at 16. The S.C. Court of Appeals issued the remittitur
on February 8, 2018. ECF No. 21-9 at 1. The instant petition
for habeas corpus followed on February 15, 2018. ECF No. 1.