United States District Court, D. South Carolina, Anderson/Greenwood Division
TIMOTHY M. CAIN, UNITED STATES DISTRICT JUDGE
matter is before the court on a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner
Clarence Julius Puckett, III. In accordance with 28 U.S.C.
§ 636(b) and Local Rule 73.02(B)(2), D.S.C., all
pre-trial proceedings were referred to a magistrate
judge. Magistrate Judge Jacquelyn D. Austin filed
a Report and Recommendation (“Report”)
recommending Respondent's Summary Judgment Motion (ECF
No. 11) be granted. (ECF No. 19). The Magistrate Judge
advised the parties of the procedures and requirements for
filing objections to the Report and the serious consequences
if they failed to do so. (ECF No. 19-1). Petitioner has
timely filed objections to the Report. (ECF No. 21).
court is obligated to conduct a de novo review of every
portion of the magistrate judge's report to which
objections have been filed. Id. However, the court
need not conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the magistrate
judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
January 2009, Petitioner was indicted for trafficking cocaine
and, in 2010, he was also indicted for possession with intent
to distribute crack cocaine. (ECF No. 10-1 at 446-47). On
August 21, 2009, narcotics investigator Lieutenant John
Sherfield was performing surveillance of Petitioner's
home in Union County while another officer obtained a search
warrant. (ECF No. 10-1 at 75, 109, 150). Lt. Sherfield saw
co-defendant Travis Anderson arrive at Petitioner's
house, park his car, and enter the residence. (ECF No. 10-1
at 75). Lt. Sherfield noted that Anderson was not carrying
anything when he entered Petitioner's home. Id.
Based on information from a confidential informant, Officer
Johnson obtained a search warrant for Petitioner's home.
(ECF No. 10-1 at 150). Officers executed the search warrant
and forcibly entered the home, where they found Anderson
standing beside a couch and Petitioner locked in a bathroom.
(ECF Nos. 10-1 at 77-78; 117). After the officers heard
flushing noises, Lt. Sherfield attempted to gain entry to the
bathroom by knocking a hole in an adjacent wall. Id.
Officer Johnson was able to open the bathroom door at about
the same time as Lt. Sherfield knocked a hole in the bathroom
wall. (ECF No. 10-1 at 78). Both officers saw Petitioner
leaning over the toilet. (ECF No. 10-1 at 82). Petitioner
immediately surrendered to the officers. Id. at 79.
recovered almost two ounces of powder cocaine in a plastic
bag from the rim of the toilet, and approximately fourteen
grams of marijuana from the bathroom trash can. Id.
Petitioner and Anderson were arrested and read their Miranda
rights. Id. at 80-81. Petitioner commented to the
officers that the drugs in the house were his, and that
Anderson had nothing to do with them. Id. at 80.
Petitioner admitted that he had flushed some of the cocaine
down the toilet. Id. Petitioner also told the
officers where a set of scales could be found. Id.
at 82. The scales had a white powdery substance on them,
which the officers believed to be cocaine. Id. The
officers also found two small bags containing crack cocaine
near the couch, and $1177 in cash in Petitioner's pocket.
Id. at 83-84. Additionally, they searched
Anderson's vehicle and found a second set of scales,
forty Xanax pills, and more marijuana. Id. at 84-85.
an interview the next day, Petitioner again admitted that the
drugs found in his home were his. Id. at 86. He
indicated that would consider possibly assisting police by
conducting a controlled buy from his supplier. Id.
He also provided the names of some other local dealers. No.
written or recorded statements were taken from this
interview. Id. Petitioner's first trial resulted
in a hung jury, and the trial court declared a mistrial. (ECF
No. 10-1 at 415). During the Petitioner's second trial,
the following questioning occurred between Officer Johnson
and trial counsel:
Q.: . . . And I want to go to the point where you, before you
get to the residence you received a call, say that it was
information and you were going to use that information to go
get a search warrant; is that right?
A.: Yes. Lieutenant Sherfield gave me a call [and] advised me
that one of our confidential informants -
Q.: Trial Counsel: Right.
A.: - that we had used had been to [Petitioner's]
A.: - and witnessed him sell -
Trial Counsel: Your Honor.
The Court: Just - Go on to your next question.
(ECF No. 10-1 at 160). Trial counsel, as directed, moved on
to other questions. Id. Later that day, after
several other witnesses had testified, trial counsel moved
for a mistrial on the ground that Petitioner was prejudiced
by the jury hearing the comments from Officer Johnson as to
Petitioner selling something, presumably drugs. (ECF No. 10-1
at 210). The trial court noted that the statement was hearsay
and gratuitous, but denied the motion for a mistrial finding
that there was no manifest necessity requiring a mistrial.
Id. at 212. The trial court also stated it would not
give a curative instruction because that would merely
highlight the testimony. Id. After the State rested,
trial counsel renewed his motion for a mistrial. (ECF No.
10-1 at 228). The trial court again denied the motion finding
no manifest necessity and again stating that he would not
give a curative instruction. Id. at 229.
then testified. Id. at 246-310. He testified that
co-defendant Anderson came to his house that day so that they
could go to the drag racing strip to watch the races.
Id. at 257-58. He testified that although he thought
there was a possibility that Anderson might bring marijuana
into his house, there were no drugs of any kind in his house
before Anderson came over. Id. at 258. He said
Anderson brought in marijuana and scales, and he handed the
marijuana to Petitioner. Id. at 259. He testified
that Anderson then walked outside to his car to put his
cigarettes into the car, and then Anderson immediately
returned to the house. Id. He stated that he was
going to pay Anderson later for the marijuana. Id.
Petitioner testified that he began rolling a joint at the bar
while Anderson sat on the couch. Id. at 261.
Petitioner then testified that Anderson had to go and get his
cigarettes out of his car. Id. He testified that
after Anderson returned and sat back down on the couch, they
heard loud banging on the door. Id. at 262.
Petitioner testified that he looked out the window and saw
the police. Id. He testified that he had the blunt
in his mouth and the remaining marijuana in a bag, which he
put into his pocket. Id. at 263. He said Anderson
had run past him towards the bathroom, and that he and
Anderson bumped into each other as Anderson came back from
the bathroom. Id. at 264-67, 284. Petitioner
testified that, once he was in the bathroom, he closed the
door and threw some of the marijuana into the toilet.
Id. at 268-70. He testified that when he saw the
officer knock a hole in the bathroom wall, he threw the
remaining marijuana towards the toilet. Id. at 268,
270. Petitioner acknowledged that he said the marijuana was
his, but he denied stating that the cocaine was his.
Id. at 273. He denied making any statements abut
giving the officers any names of drug dealers. Id.
at 275. On cross-examination, Petitioner admitted that at his
first trial he had testified that Anderson had given him the
bag of cocaine, told him to flush it, and threatened him to
not say the cocaine was Anderson's. Id. at 277.
Petitioner stated that he was nervous and had simply made a
mistake in his prior testimony. Id. at 277-78.
was convicted of trafficking cocaine and sentenced to ten
years imprisonment. He filed a direct appeal raising the
following grounds for relief:
1. The Trial Court erred in refusing to grant a mistrial
where the police officer testified about a confidential
informant witnessing Appellant selling drugs where such
evidence constituted improper evidence of prior bad acts and
where the Trial Court's only basis for denying
Appellant's motion for a mistrial was because the Trial
Court did not want the case to be tried for a third time.
2. The Trial Court erred in refusing to allow Appellant to
introduce his prior consistent statement made in his first
trial pursuant to Rule 801(d)(1)(B), SCRE where (1) Appellant
testified at the trial and was subject to cross-examination;
(2) the State accused Appellant of fabricating a new story at
the second trial about whether Travis Anderson gave him the
cocaine before Appellant entered the bathroom; (3)
Appellant's statement at the first trial that he sought
to have admitted was consistent with his testimony on direct
at the second trial; and (4) the statement at his first trial
that he sought to have admitted was made before the alleged
(ECF No. 10-2 at 4). On October 1, 2014, the South Carolina
Court of Appeals affirmed Petitioner's conviction in an
unpublished decision, 2014-UP-347. (ECF No. 10-2 at 47-48).
The remittitur was sent ...