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Griggs v. Warden of Wateree River Correctional Institution

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

January 18, 2019

Billy Joe Griggs, #124983, Petitioner,
v.
Warden of Wateree River Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

         Billy Joe Griggs, a state prisoner proceeding pro se, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1.) The Warden has moved for summary judgment. (Dkt. No. 19.) Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review the filings and submit findings and recommendations to the District Judge. For the following reasons, the undersigned recommends granting the Warden summary judgment and dismissing the petition with prejudice.

         BACKGROUND

         On October 19, 2010, a hidden video camera secretly recorded Griggs selling prescription pills to a friend at a convenience store in Patrick, South Carolina. (Dkt. No. 18-3 at 46, 49-50, 52.) As Griggs would later learn, his friend was a confidential informant cooperating with the Chesterfield County Sheriff's Office. (Id. at 54.) Deputies had given him cash and the camera, and then told him to try to buy the pills from Griggs. (Id. at 48, 54-55.) Based on the informant's successful purchase and recording of the transaction, Griggs was indicted for possession with intent to distribute a controlled substance (“PWID”). (Dkt. No. 22-1, Attachment B.) See S.C. Code Ann. § 44-53-370(a)(1) (2010).

         Griggs was initially indicted as a first-time offender. (Dkt. No. 22-1, Attachment B.) However, Griggs had several prior drug convictions, including unlawful drug possession (1981); cocaine trafficking (1984); possession with intent to distribute cocaine (1990); and possession of cocaine (1992). (Dkt. No. 18-3 at 31.) The grand jury later returned a superseding indictment alleging this PWID offense was his third. (Dkt. No. 22-1, Attachment C.) Third offenders face five to twenty years in prison and, in many instances, are ineligible for parole. S.C. Code Ann. § 44-53-370(b)(2) (2010); see also S.C. Code Ann. § 44-53-470(A) (2010) (defining when an offense is “second or subsequent” for the purposes of section 44-53-370).

         Trial and Direct Appeal

          Before trial, the State offered to let Griggs plead to a first offense, which carried only a five-year maximum prison term, and to recommend a three-year prison sentence. (Dkt. No. 18-3 at 28.) Griggs rejected the offer. (Id.)

         At the beginning of trial, Griggs' attorney told the court about the offer and Griggs rejecting it. The court held a hearing to ensure that Griggs understood why, if convicted, he could face up to twenty years in prison. (Id. at 28-34.) Griggs told the court his prior convictions were too old to count as prior offenses that would trigger the sentencing enhancement. (Id. at 29, 32.) With input from Griggs' attorney and the prosecutor, the court explained to Griggs that his prior convictions would count, despite their age. (Id. at 32-33.) Griggs told the court he now understood the law but still wanted to “roll the dice” with a trial. (Id. at 34.)

         At trial, the State presented three witnesses: the informant, one of the deputies involved in the investigation, and a South Carolina Law Enforcement Division chemist. (Dkt. No. 18-3 at 20.) The State introduced the video of the transaction, two photos of still frames from the video, and the chemist's report on his analysis of the pills. (Id. at 22.) After unsuccessfully moving for directed verdict, Griggs' attorney did not present a defense. (Id. at 110-11.) The jury found Griggs guilty. (Id. at 136). The trial court confirmed Griggs' prior convictions triggered the third-offense sentencing enhancement and sentenced him to thirteen years in prison. (Id. at 138-43, 151.)

         Griggs filed an appeal but withdrew it before the state Court of Appeals reached a decision. (Dkt. No. 18-1.)

         PCR Proceedings

         On February 2, 2015, Griggs filed an application for post-conviction relief (“PCR”) in state circuit court. (Dkt. No. 18-3 at 245-51.) Griggs asserted his trial counsel rendered ineffective assistance by failing to investigate facts, failing to present a meaningful defense, and depriving Griggs of his right to present defense witnesses. (Id. at 247.) When the PCR court held a hearing, Griggs also claimed he received an improperly enhanced sentence because trial counsel mishandled the sentencing. (See Id. at 171-75.) Only Griggs and trial counsel testified at the hearing.

         The PCR court denied relief on all grounds. (Dkt. No. 18-3 at 256-70.) After finding trial counsel's testimony credible and Grigg's testimony not credible, the court found counsel did not perform deficiently in any of the four areas at issue. (Id. at 266-69.) To the contrary, the PCR court praised trial counsel's performance as prudent and his strategies as sound. (Id. at 267-68.) The PCR court also found Griggs did not prove prejudice on any of his claims. (Id. at 269.) The PCR court concluded its order with a blanket finding that Griggs failed to present evidence to support any other allegations, and thus those allegations were abandoned. (Id.)

         Griggs petitioned the state Supreme Court for certiorari. (Dkt. No. 18-5.) He raised just one issue:

Did the Lower Court err in not granting Post-Conviction Relief as a result of [Griggs'] improper enhancement?

(Id. at 2.) The Supreme Court summarily denied certiorari on April 19, 2018. (Dkt. No. 18-7.)

         PROCEDURAL HISTORY

         Griggs filed his § 2254 petition on May 18, 2018. In the petition, Griggs raises four grounds for relief:

Ground One : Improper Enhancement
Supporting Facts: All my prior drug charges were in the 1980's. Unlawful Drugs, 1981, Trafficking Cocaine 1984, Possession of Cocaine 1989[.] I was originally Indicted for PWID 1st Offense, because I decided to take it to trial the Prosecutor change[d] my indictment to 3rd Offense just 8 days before trial. Then would not give me a postponement to digest the differences in the indictments. I did not understand how serious the 85% was.
Ground Two: Pills on video were white, CI testified Pills he bought were white, SLED analyst testified the pills he tested were green
Supporting Facts: When my Lawyer Questioned CI he did not mention the color of Pill, when he questioned SLED Analyst he did not question the color of Pill. He also failed to stipulate chain of custody even with the color of the pills in question. My Lawyer convinced my nephew and me that he did not want to put up a defense even though before the trial we planned to testify. He decided during his closing argument he would argue the color of the Pills. Petitioner believes his attorney was aware of the question of color of pill before trial and should have informed defendant so they could better plan defense.
Ground Three: Attorney represented Defendant on a 5[th] offense Driving under Suspension and told defendant if he plead guilty the PWID charge would be dropped
Supporting Facts: The PWID charge was in 2010. The DUS charge was in 2011. I went to court in 2012. At that time many of the other defendants that sold to the same CI in the same drug sting were going to court and getting off with fines and probation. So when my Attorney told that if I pled guilty to 3rd offense DUS my PWID charge would be dropped. The PWID charge was an older charge. I even called later date to double check and he said I was clean on my PWID charge. He called me 18 months later and stated the solicitor wanted me in court in 2 weeks on the PWID charge[.]
Ground Four: Ineffective Assistance of Counsel, Attorney failed to put up any defense. Entrapment defense was discussed before trial[.]
Supporting Facts: Attorney notified me just a few weeks ahead of court date that solicitor wanted me in court for PWID charge that I thought was dismissed. I told him the CI (Richard Gregory) entrapped me by steady calling me wanting to buy some of my pain medicine that I have received from my doctor for a bad hip. My nephew (Ronald Griggs) was willing to testify about him coming to my father's store and begging everybody for pills. We felt he targeted my father's store because of a bad check he wrote.

(Dkt. No. 1 at 6, 8, 9, 11.) Griggs seeks a reduced sentence or a new trial. (Dkt. No. 22-1 at 23.)[1]

         The Warden filed a return and moved for summary judgment. (Dkt. Nos. 18 & 19.) Griggs filed a response, which he later supplemented. (Dkt. Nos. 22 & 28.) The Warden did not file a reply. His summary judgment motion is ripe for review.

         LEGAL ...


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