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Mitchell v. Warden of Lieber Correctional Institution

United States District Court, D. South Carolina

December 20, 2018

Randy Lamond Mitchell, Petitioner,
v.
Warden of Lieber Correctional Institution, Respondent.

          ORDER

          Timothy M. Cain United States District Judge.

         This matter is before the court on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Randy Lamond Mitchell. 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.[1] Magistrate Judge Jacquelyn D. Austin filed a Report and Recommendation (“Report”) recommending Respondent's Summary Judgment Motion (ECF No. 13) be granted. (ECF No. 21). 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. 21-1). Petitioner has timely filed objections to the Report (ECF No. 23), and Respondent filed a reply to those objections (ECF No. 25).

         The 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).

         I. Background/Procedural History

         On October 3, 2010, a small group of people were watching football at a house in Rock Hill. (ECF NO. 14-1 at 166). Several of the occupants of the house testified that a short man in a white t-shirt with a sawed-off shotgun and a taller man with a pistol entered the house demanding money and cell phones. Id. at 167, 170, 182-85, 205-07, 210, 219-22. As the men were leaving, the man with the pistol pointed it to the ceiling and shot. Id. at 171, 186, 207.

         At the same time, the neighborhood was under surveillance by the Rock Hill Police Department after reports of someone selling crack cocaine from one of the residences. Id. at 79-80. The police heard loud talking come from the house and saw a man in a white t-shirt, later identified as Gregory Crawford, exit the house. Id. at 87. At about that same time, the officers heard a gunshot coming from inside the house. Id. at 88, 270. They witnessed another man, later identified as Petitioner, exit the house. Id. He was putting a stocking cap, or dew rag, on his head when police heard another gunshot coming from around the man with the white t-shirt. Id. at 89, 270. The two men then began to run with the officers pursuing them. Id. The two men split up running in opposite directions and the officers also split up and continued chasing the men. Id. at 90-91, 271. Eventually, the men were apprehended and arrested. Id. at 94, 272.

         During a pat-down search of Petitioner, one of the officers found a pair of black gloves, a cell phone charger, a cell phone case, a Cricket cell phone, two keys on a key ring, a black bag, a Virgin mobile cell phone, and a pack of cigarettes. Id. at 234, 236, 237. Additionally, a wallet belonging to one of the occupants of the house, Everett Williams, was found in a trash can in a hallway at the police station. Id. at 249. Petitioner had walked near the trash can, and the officer escorting Petitioner noticed he had made a hand movement towards the trash can. Id. at 254, 255. The officer testified that he searched the trash can a few minutes later and found the wallet. Id. at 255-56.

         No weapons were found on the men. Id. at 95-96. The officers then began backtracking the route the chase had covered. Id. at 96, 272, 270. They found a pistol and a wallet behind a house, and a sawed-off shotgun with a shell in the chamber and a stocking cap near the start of the chase. Id. at 97-98, 100, 101, 102, 139, 272-73. A spent shell casing was found in the house. Id. at 142-43, 145. There were no fingerprints found on the guns. Id. at 146, 161. The DNA testing on the stocking cap showed three contributors of DNA, but Petitioner was excluded as a possible contributor. Id. at 123, 162. A GSR test was performed on Crawford and it came back negative for gunshot residue. Id. at 154.[2] Petitioner refused to submit to a GSR test.

         In February 2011, Petitioner was indicted for first-degree burglary and armed robbery. (ECF No. 14-1 at 431-36). On February 29, 2012, following a jury trial, Petitioner was found guilty on both charges and sentenced to life imprisonment without the possibility of parole. Id. at 326.[3]

         Petitioner filed a direct appeal raising the following issue:

Whether the trial court reversibly erred pursuant to Rule 403, SCRE, by permitting the State to elicit testimony [that] the Appellant was not cooperative and failed to give consent to a GSR test when asked to do so by the police?

Id. at 444. On March 12, 2014, the South Carolina Court of Appeals affirmed the conviction in an unpublished opinion. Id. at 453-54. The remittitur was sent down on March 28, 2014. (ECF No. 14-3).

         Petitioner then filed an application for post-conviction relief (“PCR”) on April 3, 2014. (ECF No. 14-1 at 335-42). The PCR application alleged Petitioner was being held in custody unlawfully based on the following:

The Applicant asserts ineffective assistance of trial Counsel. Applicant also asserts that due to his lack of understanding of the Law, Applicant request[s] that Counsel be appointed pursuant to 11.1(d) SCRCiv.P., and S.C. Code of Laws 17-27-90.
The Applicant further asserts that due to the Lack of records and the assistance of Counsel, it would be chronologically impossible for the Applicant to carry such burden to show his entitlement for relief by a Preponderance of the evidence, and for the appointment of Counsel to insure that all available grounds for relief are included in the application. Therefore, Applicant request[s] that this Court appoint Counsel in the above mention[ed] application. Applicant moves this Honorable Court to grant leave to amend this application in this cause of action due to the lack of Counsel and Applicant is a Lay person at Law.
Applicant seeks this Court['s] approval of this application so that Applicant['s] right to a PCR won't be deem[ed] abandon[ed] due to the fact that Applicant has only one year to file this application from the date of a final Judgment or from the remittitur to the Lower Court which ever comes first.

Id. at 342. On January 5, 2015, Petitioner, represented by Leah Moody, amended his application to include an additional ground of prosecutorial misconduct. Id. at 424. A hearing was held on April 14, 2015, and Petitioner was represented at the hearing by Moody. Id. at 348-421. On October 13, 2015, the PCR court dismissed the PCR application with prejudice. Id. at 423-30. In its order, the PCR court stated that Petitioner raised the following issues at the hearing: “trial counsel was ineffective for not having a gun suppressed, failing to advise [Petitioner] that he faced life without parole, failing to object to the display to the jury of a pair of black gloves, failing to object to the State witnesses' ‘false testimony,' and failing to object to the introduction of certain state exhibits.” (ECF No. 14-1 at 423-27).

         Petitioner appealed the denial of PCR relief. Assistant Appellate Defender Lanelle Cantey Durant filed a Johnson petition for writ of certiorari in the Supreme Court of South Carolina, dated April 6, 2016, raising the following ground for relief:

Did the PCR court err in not finding trial counsel ineffective for not insuring that Petitioner Mitchell understood clearly that he was facing a mandatory life without parole (LWOP) sentence if found guilty at trial which was prejudicial to Petitioner because he would have taken the ten year plea offer if he had understood the LWOP required sentence?

(ECF No. 14-4 at 3). Petitioner also filed a pro se brief, raising the following issues:

(1) Did the P.C.R. court err in not finding trial counsel ineffective for not suppressing a pistol or not objecting to false testimony by government witness or not finding prosecutorial misconduct for the pistol.
(2) Did the P.C.R. court err in not finding trial counsel ineffective for not objecting to the refrence and presentment of inadmissible evidence, or false testimony by government witness or for not finding ...

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