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Phillips v. Warden of Turbeville Correctional Institution

United States District Court, D. South Carolina

January 4, 2019

JOSHUA BRANDON PHILLIPS, #00335243, Petitioner,


          Bristow Marchant, United States Magistrate Judge

         Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed pro se on July 25, 2018.[1]

         The Respondent filed a return and motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on October 19, 2018. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on October 24, 2018, advising Petitioner of the importance of a motion for summary judgment and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case.

         Petitioner filed a memorandum in opposition, as well as his own motion for summary judgment, on November 8, 2018. The following day, Respondent filed a reply to the response in opposition to the motion for summary judgment. On November 20, 2018, Respondent filed a response in opposition to Petitioner's motion for summary judgment, to which Petitioner filed replies on November 26, 2018 and December 10, 2018.

         This matter is now before the Court for disposition.[2]

         Procedural History

         Petitioner was indicted in Lexington County in October 2012 for the murder [Indictment No. 2012-GS-32-2618] and armed robbery [Indictment No. 2012-GS-32-2620] of Gerald Stewart in April 2005.[3] (R.pp. 146-149). Petitioner was represented by Arie Bax, Esquire, and on December 5, 2012, he pled guilty to voluntary manslaughter and armed robbery. (R.p. 1-36). Petitioner was sentenced to twenty years' imprisonment for each of those charges, with the sentences to run concurrently and Petitioner receiving credit for the time he served from his arrest date in April 2005. (R.pp. 34, 37).

         According to the order of dismissal from Petitioner's post-conviction relief (“PCR”) action:

A notice of appeal was filed on Applicant's behalf and perfected by Arie D. Bax, Esq. In an Order filed May 31, 2013, the Court of Appeals dismissed Applicant's appeal pursuant to Rule 203(d)(1)(B)(iv), SCACR. The Court of Appeals denied Applicant's pro se petition for rehearing in an order filed September 3, 2013. The Remittitur was returned on October 21, 2013.

(R.p. 129).[4]

         On July 12, 2013 (dated July 9, 2013), Petitioner filed an application for post-conviction relief (“APCR”) in state circuit court. Phillips v. State of South Carolina, No. 2013-CP-32-02341. (Rpp. 39-47). The PCR court outlined the issues Petitioner raised[5] in his APCR as follows:

         1. Involuntary guilty plea:

a. Pled by way of coercion and being misled;

         2. Ineffective assistance of counsel:

a. “Counsel refused to obtain the relevant documentation that shows defendant Owen has a substantial amount of documentation, showing his invariable state of mind through the Lexington Mental Health Facility”;

         3. Intoxication and temporary insanity.

(R.p. 129).

         Petitioner was represented in his APCR by Aimee J. Zmroczek, Esquire, and an evidentiary hearing was held on Petitioner's application on June 8, 2015. (R.pp. 67-118). At the conclusion of the hearing, the PCR judge announced that he would deny the application and asked the State to prepare an order. (R.p. 117). Thereafter, in an order filed March 14, 2016 (dated March 3, 2016), the PCR judge denied Petitioner relief on his APCR. (R.pp. 128-141). On March 22, 2016, PCR counsel filed a motion to reconsider pursuant to Rule 56, SCRCP, which was denied. (R.pp. 142-145).

         Petitioner then filed a timely appeal of the PCR court's order, in which he was represented by David Alexander of the South Carolina Commission on Indigent Defense. On February 1, 2017, Petitioner's PCR appellate counsel filed a Johnson[6] petition seeking to be relieved as counsel and raising the following issue: “Whether petitioner's guilty plea was unknowing and involuntary because plea counsel failed to fully investigate petitioner's mental competency by obtaining an independent expert and merely accepted the opinions of the government evaluations?” Petition for Writ of Certiorari, p. 1 (See Court Docket No. 13-2, p. 3). The Petitioner also filed his own pro se memorandum on February 16, 2017, raising the following issue: “Petitioner's guilty plea was unknowing and involuntary because plea counsel failed to fully investigate his original plea agreement in 2009 to make sure it was fulfilled.” (Court Docket No.13-3, p. 4).

         After considering the record as required by Johnson and Petitioner's pro se response, the South Carolina Court of Appeals denied certiorari on March 13, 2018. (See Court Docket No. 13-4). The Remittitur was sent down on March 29, 2018, and filed with the Clerk of Court for Lexington County on March 30, 2018. (See Court Docket No. 13-5; Lexington County Eleventh Judicial Circuit Public Index, aspx?County=32&CourtAgency=32002&Casenum=2013CP3202341&CaseType=V&HKey=7011671107431111075290116858968471191211051191071119948777110673114856688907510811211952114801051125510585).

         In the interim (following the conclusion of his PCR hearing on June 8, 2015), Petitioner filed a document purporting to be an amendment to his APCR on October 23, 2015, alleging a No. of claims of ineffective assistance of PCR counsel, which was docketed as a new case. Phillips v. State of South Carolina, No. 2015-CP-32-03656. (Court Docket No. 13-6). On March 5, 2018, the State filed a return and motion to dismiss, along with a proposed conditional order of dismissal noting that Petitioner's new APCR was void as successive, had been filed outside of the applicable statute of limitations, and in any event raised an issue (ineffective assistance of PCR counsel) that was not a cognizable claim under the Post-Conviction Procedure Act. (Court Docket Nos. 13-7, 13-8). Petitioner filed an opposition to the proposed order on March 13, 2018. (Court Docket No. 13-9). The PCR judge issued a conditional order of dismissal on October 22, 2018. (See Lexington County Eleventh Judicial Circuit Public Index, Agency=32002&Casenum=2015CP3203656&CaseType=V&HKey=11611511277815147104110 1065111049785587561159088110836953117110651145048755083111726977105877410771115).

         This federal habeas Petition was filed by the Petitioner on July 25, 2018, prior to the issuance of the conditional order of dismissal in his second PCR case. In his Petition for writ of habeas corpus filed in this United States District Court, Petitioner raises the following issues:

         Ground One: Unknowing and involuntary plea.

Supporting Facts: Petitioner's guilty plea was unknowing and involuntary because plea counsel failed to fully investigate petitioner's mental compentency by obtaining an independent expert and merely accepted the opinions of the government evaluations. Both the State and Petitioner's trial counsel said competency was an issue and this is also why he couldn't testify against co-defendant in 2009 which the State said he breached.
Ground Two: Counsel informed Petitioner that due to him having knowledge based upon his numerous conflicting statements he was guilty under accomplice liability theory.
Supporting Facts: [M]ere presence at the scene of the crime and knowledge that a crime being committed are not sufficient to make a defendant [a] participant in a crime. The State would have to prove beyond a reasonable doubt that the defendant was present and aided or abeted or assisted or participated in the commission of the crime and was not simply present while a crime was being committed and had knowledge that a crime was being committed.
Ground Three: Involuntary Plea pursuant to numerous conflicting statements under State v. Robert Jared Prather 2017 WL 6327530
Supporting Facts: Trial Counsel told Petitioner that due to the numerous statements by Petitioner, by him having knowledge of the crime and being there while the crime was committed makes Petitioner guilty under the hand of one the hand of all. Petitioner was passed out during the commission of the crime and had no knowledge of the crime and it can be proven under his co-defendant. State v. Robert Jared Prather 2017 WL 6327530

See Petition, pp. 5-9. Although not presented as a claim for relief, under the “Other Remedies” section of the petition, Petitioner does further assert that “Trial Counsel was ineffective for not getting victim's clothing analyzed to show that Petitioner did not have any involvement of the crime befor [sic] pleading guilty. Therefore Petitioner filed for DNA Testing to get analyzed.” Petition, p. 11.


         Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972). However, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Such is the case here.

         Each ground raised in the petition concerns some claim of ineffective assistance of counsel. With regard to Grounds One and Two in the instant action, which were raised as part of the PCR action, Petitioner had the burden of proving the allegations in his petition.[7] Butler v. State, 334 S.E.2d 813, 814 (S.C. 1985), cert. denied, 474 U.S. 1094 (1986). The PCR court rejected these claims, making relevant findings of fact and conclusions of law in accordance with S.C.Code Ann. § 17-27-80 (1976), as amended. See Phillips v. State of South Carolina, No. 2013-CP-32-2341. These issues were also considered on appellate review by virtue of Petitioner's counsel filing a Johnson petition to the State Supreme Court.[8] (See Court Docket No. 13-4). Therefore, these grounds are properly exhausted for consideration by this Court.

         At the PCR hearing, after outlining the testimony of Petitioner and his counsel, the PCR judge found that: 1) Petitioner failed to meet his burden with respect to his claim that trial counsel was ineffective for failing to investigate; 2) Petitioner failed to show any error or omission on counsel's part, or any fact or theory, that counsel could have uncovered through a more thorough investigation; 3) counsel gave extensive and credible testimony regarding his investigation; 4) the PCR court found no deficiency; 5) counsel testified to the extensive No. of hours he spent on Petitioner's defense; 6) counsel testified that he remembered meeting with Petitioner a No. of times; 7) counsel testified that he was on his fourth or fifth trial notebook when Petitioner decided to plead guilty; 8) counsel obtained funds to hire an expert; 9) counsel went to the expert's house to review her findings; 10) counsel obtained funds to order a copy of Petitioner's co-defendant's transcript; 11) counsel reviewed the transcript thoroughly, particularly those sections that were pertinent to Petitioner's case; 12) Petitioner failed to show either deficiency or prejudice with respect to the allegation that trial counsel was ineffective for a failure to investigate;

         13) as to the allegation that plea counsel was ineffective for failing to raise the issue of competency, Petitioner failed to meet his burden of showing either deficiency or prejudice; 14) counsel testified credibly that he had concerns about Petitioner's competency; 15) counsel still had such concerns at the time of the evidentiary hearing; 16) counsel received Petitioner's school records from Petitioner's adoptive parents; 17) those records showed a general functional IQ of between sixty and seventy; 18) counsel said that Petitioner was evaluated by the South Carolina Department of Disabilities and Special Needs (“DDSN”) and the Department of Mental Health (“DMH”) and was found to be competent by psychiatrists; 19) counsel's concerns were understandable; 20) counsel acknowledged that “psychiatrists say he's competent”; 21) Petitioner failed to present any credible evidence to refute the competency finding or counsel's performance; 22) Petitioner failed to meet his burden of showing ineffective assistance of counsel for a failure to raise a competency issue;

         23) Petitioner failed to present any credible or probative testimony that his plea was coerced; 24) counsel testified credibly that Petitioner pled guilty because his co-defendant was convicted, and such testimony was dispositive to the issue of whether Petitioner's plea was voluntary; 25) Petitioner also admitted that he basically pled guilty because his co-defendant was convicted; 26) Petitioner failed to show that his guilty plea was made unknowingly, unintelligently, or involuntarily; 27) Petitioner's allegation that his guilty plea was rendered involuntary by counsel's improper advice on accomplice liability was entirely without merit;

         28) Petitioner testified that he passed out during the commission of the crime and only pled guilty because his attorney told him that “because he was present where the crime was committed he was guilty”; 29) that testimony was not credible, particularly in light of counsel's credible testimony and Petitioner's many conflicting statements to law enforcement; 30) counsel testified that Petitioner's statements were the “No. one detriment to his case. Period.”; 31) counsel said that if Petitioner had exercised his right to remain silent, then he would have had a much stronger case; 32) according to counsel, Petitioner gave at least four statements; 33) the last two of Petitioner's statements were given in anticipation of Petitioner's cooperation in his co-defendant's trial; 34) counsel said that Petitioner implicated himself with an attorney present in the courthouse; 35) counsel said that according to Petitioner's original story, he and his co-defendant were at the victim's house partying with alcohol and cocaine; 36) counsel said that Petitioner and his co-defendant knew the victim as a homosexual; 37) the co-defendant apparently left at one point to get more cocaine; 38) when the co-defendant returned, the victim was standing at the door naked and with an erection; 39) Petitioner was in the bed; 40) later, Petitioner said that at that point he woke up, also mad, because he did not understand how he got there; 41) according to counsel, the problem with Petitioner's story was that it involved Petitioner getting out of bed and participating in the attacks; 42) Petitioner talked about knowingly hitting the ...

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