United States District Court, D. South Carolina
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
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. 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).
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).
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,
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.
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
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. Petitioner refused to submit
to a GSR test.
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.
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).
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
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).
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
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
(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 ...