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Davis v. Warden, Lee Corr. Inst.

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

October 19, 2018

Stanley Shawn Davis, #277744, Petitioner,
v.
Warden, Lee Corr. Inst., Respondent.

          REPORT AND RECOMMENDATION

          Kaymani D. West Florence, Judge

         Stanley 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.

         I. Background

         Petitioner 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.[1] 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. Id.

         II. Procedural History

         Petitioner 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.

         The 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 presented.
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 (1989).
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 Hearing
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.
CONCLUSION
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

App. 70-76.

         PCR 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[2] 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.

         III. Discussion

         A. ...


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