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Bowen v. Williams

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

January 7, 2019

Kelvin Michael Bowen, Jr., Petitioner,
v.
Randall Williams, Warden, Respondent.

          OPINION & ORDER

          Henry M. Herlong, Jr. Senior United States District Judge

         This matter is before the court for review of the Report and Recommendation of United States Magistrate Judge Shiva V. Hodges, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina.[1] Kelvin Michael Bowen, Jr. (“Bowen”), a state prisoner proceeding pro se, is seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In her Report and Recommendation, Magistrate Judge Hodges recommends granting the Respondent's motion for summary judgment and dismissing Bowen's petition with prejudice.

         I. Factual and Procedural Background

          Bowen is currently incarcerated at Lieber Correctional Institution, a South Carolina Department of Corrections (“SCDC”) facility. In July 2009, Bowen was indicted in South Carolina state court for murder, first degree burglary, conspiracy, and possession of a weapon during a violent crime. (Mem. Supp. Mot. Summ. J. Attach. 3 (App. 855-57), ECF No. 26-5.) After a jury trial, Bowen was convicted on all counts on February 4, 2011. (Id. Attach. 3 (App. 839-40), ECF No. 26-5.) Bowen was sentenced to 99 years' imprisonment for murder, 30 years' imprisonment for burglary, five years' imprisonment for conspiracy, and five years' imprisonment for possession of a weapon during a violent crime, all terms to run consecutively. (Id. Attach. 3 (App. 853), ECF No. 26-5.)

         Bowen appealed his conviction and argued that his “federal and state constitutional rights to due process of law were violated by the admission of a witness's identification of [Bowen] where the out-of-court identification process was unnecessarily suggestive and conducive to irreparable mistaken identification.” (Id. Attach. 1 (Br. Appellant 1-20), ECF No. 26-1.) The South Carolina Court of Appeals affirmed Bowen's conviction on December 11, 2013. (Id. Attach. 1 (Dec. 11, 2013 Order 23-24), ECF No. 26-1.) On March 4, 2014, Bowen filed an application for post-conviction relief (“PCR”), which was subsequently amended three times, and raised numerous claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel. (Mem. Supp. Mot. Summ. J. Attach. 3 (App. 862-869), ECF No. 26-6.) An evidentiary hearing was held on July 13, 2015. (Id. Attach. 3 (App. 888), ECF No. 26-6.) On September 16, 2015, the PCR court dismissed Bowen's PCR application. (Id. Attach. 3 (App. 984-1007), ECF Nos. 26-6 & 26-7.)

         Bowen appealed the PCR court's decision, and filed a petition for writ of certiorari with the South Carolina Supreme Court on June 23, 2016, raising the following grounds:

1. Did the PCR judge err in refusing to find that appellate counsel was ineffective for failing to raise the issue of whether the trial judge abused his discretion in admitting State's Exhibit #82, a composition notebook, attributed to co-defendant Ronald Mack, containing irrelevant and prejudicial gang language?
2. Did the PCR judge err in stating that he would not speculate as to the contents of the notebook, State's Exhibit #82, because Petitioner did not introduce the notebook at the PCR hearing when the notebook was admitted in evidence at trial and discussed at length prior to admission?

         (Id. Attach. 5 (Pet. Writ of Cert.), ECF No. 26-9.) The South Carolina Supreme Court transferred the petition to the South Carolina Court of Appeals, and on June 29, 2017, the Court of Appeals denied the petition. (Id. Attach. 8 (June 29, 2017 Order), ECF No. 26-11.)

         Bowen filed the instant § 2254 petition for writ of habeas corpus on March 2, 2018, [2]

         alleging the following six grounds for relief:

Ground One: P.C.R. judge erred in refusing to find that appellate counsel was ineffective on direct appeal Ms. Susan Hackett [sic], for failing to raise and brief the issue the trial judge abused his discretion in admitting, over Petitioner's objection, states [sic] exhibit #82, a composition notebook attributed to co-defendant Ronald Mack containing irrelevant and prejudicial gang language.
Ground Two: The P.C.R. Judge erred in stating that he would not speculate as to the contents of the notebook, state's exhibit #82, because Petitioner did not introduce the notebook at the P.C.R. hearing when the notebook was clearly entered in evidence at trial and discussed at length prior to admission.
Ground Three: Petitioner's federal and state constitutional rights to due process of Law were violated by the admission of a witness's identification of Petitioner where the out-of-court identification process was unnecessarily suggestive and conducive to irreparable ...

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