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Lee v. Warden Perry Correctional Institution

United States District Court, D. South Carolina, Anderson/Greenwood Division

January 8, 2019

Robert Lee, Jr., Petitioner,
v.
Warden Perry Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Respondent's motion for summary judgment. [Doc. 16.] Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

         Petitioner filed this Petition for writ of habeas corpus on July 10, 2018.[1] [Doc. 1.] On September 21, 2018, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 15; 16.] The same day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 17.] On October 25, 2018, Petitioner's response in opposition was entered on the docket [Doc. 19], and on October 30, 2018, Respondent filed a reply [Doc. 21]. Petitioner's objection to the reply was entered on the docket on November 28, 2018. [Doc. 22.]

         Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted.

         BACKGROUND

         Petitioner is confined in the Perry Correctional Institution pursuant to an order of commitment of the Spartanburg County Clerk of Court. [Doc. 1 at 1.] In October 2010, Petitioner was indicted for murder. [App. 795-96.[2] On November 28, 2011, represented by Brendan Delaney, Petitioner proceeded to a jury trial. [App. 1-596.] On December 1, 2011, Petitioner was found guilty and sentenced to life imprisonment. [App. 591-95.]

         Direct Appeal

         Petitioner appealed. Wanda H. Carter of the South Carolina Commission on Indigent Defense filed a final brief of appellant on Petitioner's behalf in the South Carolina Court of Appeals, dated August 27, 2013, raising the following issue:

The trial judge erred in denying appellant's request for a self-defense charge at trial because appellant's case was similar to State v. Light, 378 S.C. 641, 664 S.E.2d 465 (2008), and other cases where imminent danger existed and there was no other means of avoiding said danger other than to act in self-defense.

[App. 600.] The South Carolina Court of Appeals affirmed the conviction in an unpublished opinion that was submitted on January 1, 2014, and filed on April 16, 2014. [App. 646-47.] Remittitur was issued on May 2, 2014. [App. 648.]

         PCR Proceedings

         Petitioner, proceeding pro se, filed an application for post-conviction relief (“PCR”) on June 13, 2014. [App. 650-56.] The PCR application alleged Petitioner was being held in custody unlawfully based on the following grounds:

(a) In[ef]fective Assi[s]tance of Cou[nse]l
(b) Due Process violations

[App. 652.] The State filed a return dated November 18, 2014. [App. 657-61.]

         A hearing was held on January 11, 2016, and Petitioner was represented at the hearing by J. Brandt Rucker. [App. 662-766.] On July 18, 2016, the PCR court filed an order denying and dismissing the PCR application with prejudice. [App. 777-93.] The PCR court's order addressed Petitioner's allegations of ineffective assistance of counsel for (a) failing to suppress Petitioner's statements to police, (b) failing to adequately consult with Petitioner before trial and prepare for trial, (c) failing to request a jury charge on accident and object to taking the self-defense charge off the table, and (d) failing to object to the solicitor's closing argument. [App. 781-92.]

         Petitioner appealed. Laura R. Baer (?Baer”) of the South Carolina Commission on Indigent Defense filed on Petitioner's behalf a Johnson[3] petition for writ of certiorari in the Supreme Court of South Carolina, dated October 25, 2017. [Doc. 15-3.] The petition asserted the following as the sole issue presented:

Whether the PCR court erred in finding that trial counsel rendered constitutionally effective assistance of counsel where he failed to object to the solicitor's improper comments during closing argument?

[Id. at 3.] At the same time she filed the Johnson petition, Baer submitted a petition to be relieved as counsel. [Id. at 13.] Petitioner filed a pro se response. [Doc. 15-4.] The pro se response asserted that trial counsel gave Petitioner erroneous advice not to testify, failed to object to jury charges, never came to talk to Petitioner before trial, and failed to investigate the case before trial. [Id.] On June 14, 2018, the Supreme Court of South Carolina denied the petition and granted counsel's request to withdraw. [Doc. 15-5.] Remittitur was issued on July 2, 2018. [Doc. 15-6.]

         Petition for Writ of Habeas Corpus

         Petitioner filed this Petition for writ of habeas corpus on July 10, 2018. [Doc. 1.] Petitioner raises the following ground for relief, quoted substantially verbatim, in his Petition pursuant to 28 U.S.C. § 2254:

GROUND ONE: Petitioner was denied a fair trial when the trial court denied Petitioner's request to instruct the jury on self-defense
Supporting facts: Petitioner was in imminent danger and feared for his life as any reasonably prudent man would have feared if placed in such a position, Petitioner acted properly in self-defense when he was confronted by the decedent Rebecca Rose with whom Petitioner had two children. Rosa advanced toward Petitioner while she held and swung a knife and yelled ?f--- you” and actually cut Petitioner while swinging the knife.
GROUND TWO: THE STATE COURT UNREASONABLY APPLIED STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984) to PETITIONER'S CASE
Supporting facts: The State PCR Court and subsequent reviewing courts erred in finding trial counsel rendered constitutionally effective assistance where counsel failed to object to the solicitor's improper closing argument that denied Petitioner a fair trial. See App. 547, l.20-22; p.549, l.4-6; p.558, l.6-7; p.558, l.25-p.559, l.4; App. 547, l.23-p.548; App.549, l.1; App.506, l.9-15.
GROUND THREE: COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO OBJECT WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON ?CRIMINAL INTENT” THE ESSENTIAL ELEMENT OF MURDER.
Supporting facts: Murder in South Carolina is a crime of ?specific intent” and ?criminal intent” is an essential element of the crime of murder. During the trial court's instruction to the jury regarding murder App.568-p.590 the trial court used multiple references to the essential element of the crime of murder as being ?a state of mind” and having ?the intent”, and ?intent” refers to the ?state of mind”, and an ?intent” to kill”, being a ?state of mind” but the Court never instructed the jury on ?criminal intent” and counsel utterly failed to object and/or request the instruction.
GROUND FOUR: COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO OBJECT WHEN THE COURT FAILED TO INSTRUCT THE JURY THAT ?THE FACT PETITIONER DID NOT TESTIFY” COULD NOT BE USED AGAINST HIM, i.e., RIGHT TO REMAIN SILENT.
Supporting facts: Petitioner was denied the effective assistance of counsel when counsel failed to object when the trial court failed to instruct the jury that Petitioner has a right to remain silent and the fact ?Petitioner did not testify” could not be used against him and in no way should be discussed or used against him during deliberations. This denied Petitioner a fair trial. See App.87, l.5-p.88, l.5 and App.559, l.6-562, l.25.

[Doc. 1 at 5-10.] As stated, on September 21, 2018, Respondent filed a motion for summary judgment. [Doc. 16.] On October 25, 2018, Petitioner's response in opposition was entered on the docket [Doc. 19], and on October 30, 2018, Respondent filed a reply [Doc. 21]. Petitioner's objection to the reply was entered on the docket on November 28, 2018. [Doc. 22.] Accordingly, the motion for summary judgment is ripe for review.

         APPLICABLE LAW

         Liberal Construction of Pro Se Petition

         Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         Summary Judgment Standard

         Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

         The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might ...


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