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Smith v. Joyner

United States District Court, D. South Carolina

June 5, 2019

George Smith, Petitioner,
v.
Aaron Joyner, Warden, Respondent.

          REPORT AND RECOMMENDATION

          Kaymani D West United States Magistrate Judge.

         George Smith (“Petitioner”) is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 32, 33. On January 17, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 34. After obtaining three extensions, ECF Nos. 38, 41, 44, Petitioner filed a Response in Opposition to Respondent's Motion on May 15, 2019, ECF No. 46, and Respondent filed a Reply on June 3, 2019. ECF No. 51.

         Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 33, be granted, and this Petition be denied.

         I. Background

         Petitioner is currently incarcerated in the Lee Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the August 2008 term of the Clarendon County Grand Jury on assault and battery with intent to kill (“ABWIK”), armed robbery, and possession of a weapon during a violent crime (2008-GS-14-352). App. 292-93.[1]Petitioner proceeded to a jury trial on December 8, 2009, before the Honorable R. Ferrell Cothran, Circuit Court Judge. App. 1 et. seq. Petitioner was represented by Harry Devoe, Esq. and Assistant Solicitor Amy A. Land represented the State. App. 1. The jury found Petitioner guilty as indicted. App. 138-39. Judge Cothran sentenced Petitioner to concurrent terms of 26 years for ABWIK, [2]25 years for armed robbery, and five years for possession of a weapon during the commission of a violent crime. App. 146.

         Petitioner appealed his sentence to the South Carolina Court of Appeals (“Court of Appeals”). App. 149-55. Petitioner was represented by Appellate Defender Elizabeth A. Franklin-Best, South Carolina Commission on Indigent Defense. App. 149. Petitioner raised the following issue:

Did the trial court judge err when he sentenced appellant to 26 years for assault and battery with intent to kill when the crime only carries a maximum sentence of 20 years?

App. 152.

         On June 6, 2012, the Court of Appeals filed an unpublished decision dismissing Petitioner's appeal. App. 168. The remittitur was issued on June 25, 2012. App. 169.

         II. Procedural History

         Petitioner filed an Application for Post-Conviction Relief (“PCR”) on August 22, 2012 (2012-CP-14-392). App. 170-76. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of trial and appellate counsel. App. 173. Petitioner filed an Amendment to his PCR Application on September 5, 2014, alleging additional ineffective assistance of trial and appellate counsel claims. ECF No. 32-2 at 3-4.

         A PCR motion hearing convened on September 10, 2014, before the Honorable Clifton B. Newman, Circuit Court Judge. App. 184-268. Petitioner was present and represented by Attorney Tricia A. Blanchette, and Assistant Attorney General Daniel F. Gourley, III, appeared on behalf of the State. See Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on November 15, 2016, making the following findings of fact and conclusions of law:

FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court has had the opportunity review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility, and weigh their testimony accordingly. Specifically, this Court finds Trial Counsel's testimony credible and Applicant's testimony not credible. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. Code Ann. § 17-27-80 (1985).
INEFFECTIVE ASSISTANCE OF COUNSEL
In a post-conviction relief action, the applicant has the burden of proving the allegations in the application. Rule 71.l(e); SCRCP; Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where ineffective assistance of counsel is alleged as a ground for relief, the Applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668, (1984); Butler, 286 S.C. 441, 334 S.E.2d 813 (1985).
The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler, 286 S.C. 441, 334 S.E.2d 813 (1985). The applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
Courts use a two-pronged test in evaluating allegations of ineffective assistance of counsel. First, the Applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its “reasonableness under professional norms.” Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland). Second, counsel's deficient performance must have prejudiced the applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”
Ineffective assistance of trial counsel for failure to make a pretrial motion and/or trial objection to the identification of Applicant.
This Court finds Applicant's allegation that trial counsel was ineffective for failing to make a pretrial motion or trial objection to the identification of the Applicant is meritless. Trial Counsel stated Applicant was positively identified by three separate witnesses. The trial transcript reveals both Victim and Cannon made in court identification of Victim. (Tr. t. p. 28 lines 11-25; Tr. t. p. 69 lines 2-8). Additionally, Investigator Burgess discussed the process of compiling the lineup, how he presented the lineup to both Victim and Cannon, and described who they identified out of the lineup. (Tr. t. p. 83 line 19-p. 89 line 20). During the evidentiary hearing, Trial Counsel stated that he did not see any basis to challenge or object to the lineup. This Court finds counsels representation of Applicant well within the bounds of “professional norms.” Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland).
Additionally, this Court notes Applicant failed to present any evidence in support of his claim that Trial Counsel should have objected to the photo lineup. Specifically, Applicant failed to present for this Court's inspection a copy of the photo lineup, any expert testimony regarding the reliability of the lineup itself, or any witness testimony from either Victim or Cannon regarding their identification of Applicant. See Palacio v. State, 333 S.C. 506, 513, 511 S.E.2d 62, 66 (1999) (holding that, since the contents of challenged documents were not presented at the PCR hearing, the Applicant could not demonstrate how the failure of counsel to obtain these documents prejudiced the defense); See Dempsev v. State, 363 S.C. 365, 370, 610 S.E.2d 812, 815 (2005) (finding that, as the applicant failed to have an expert testify at the evidentiary hearing, “any finding of prejudice is merely speculative”).
Furthermore, Applicant can show no resulting prejudice due to Trial Counsel's alleged deficiencies as there is clear evidence of overwhelming guilt. Where there is overwhelming evidence of guilt, a trial counsel's deficient representation will not be prejudicial. See Franklin v. Catoe, 346 S.C. 563, 570 n. 3, 552 S.E.2d 718, 722 n. 3 (2001) (finding overwhelming evidence of guilt negated any claim that counsel's deficient performance could have reasonably affected the result of defendant's trial). This Court agrees with Trial Counsel's characterization of the State's evidence against Applicant as “overwhelming.” A review of the trial transcript reveals that Applicant was positively identified by three separate witnesses. Two of those three witnesses made in court identification of Applicant. Even more significant is Trial Counsel's testimony that Applicant admitted his guilt during the course of his representation. Based on the foregoing, this Court finds Applicant has failed to meet his burden of proof. Therefore, this Court finds this allegation should be denied and dismissed with prejudice.
Ineffective assistance of trial counsel for failure to advise Applicant of conflict of interest due to representation of Kelvin and Broaddus Black.
This Court finds Applicant's allegation that he received ineffective assistance of counsel due to Trial Counsel's failure to advise him of an alleged conflict of interest to be without merit. “An actual conflict of interest occurs where an attorney owes a duty to a party whose interests are adverse to the defendant's.” Staggs v. State, 372 S.C. 549, 551, 643 S.E.2d 690, 692 (2007). This Court has further stated that a conflict of interest occurs when “a defense attorney places himself in a situation inherently conducive to divided loyalties.” Lomax v. State, 379 S.C. 93, 101, 665 S.E.2d 164, 168 (2008).
Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for a claim of ineffective assistance of counsel arising from multiple representation. Langford v. State, 310 S.C. 357, 359, 426 S.E.2d 793, 795 (1993) (citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980); see also Burger v. Kemp, 483 U.S. 776, 783 (1987)). “The mere possibility defense counsel may have a conflict of interest is insufficient to impugn a criminal conviction.” State v. Gregory, 364 S.C. 150, 152-53, 612 S.E.2d 449, 450 (2005). A defendant need not demonstrate prejudice if there is an actual conflict of interest.” Id., 364 S.C. at 153, 612 S.E.2d at 450.
In the instant case, Applicant asserts Trial Counsel represented Victim and his brother, Broddus Black. However, Applicant has failed to present any evidence in support of his allegation. See Skeen v. State, 325 S.C. 210, 481 S.E.2d 129 (1997) (holding applicant not entitled to relief where no evidence presented at PCR hearing to show how additional preparation would have had any possible effect on the result at trial). Additionally, Trial Counsel stated that he did not recall representing Victim or his brother Broddus Black. Based off of the foregoing, this Court finds Applicant has failed to meet his burden of proof and denies the allegation with prejudice.
Ineffective assistance of trial counsel for failure to raise the victim's motive in bringing the instant charges due to a prior- break in allegation against applicant.
This Court finds Applicant's allegation that he received ineffective assistance of counsel for failing to raise the victim's motive in bringing the instant charges due to a prior-break in allegation against applicant is without merit. Trial Counsel stated he filed a Rule 5/Brady motion for Applicant on his 2008 burglary-first degree charges. Trial Counsel stated those charges were dismissed on July 8, 2008 and he could not recall who the victim was in that case. Trial Counsel further stated that Applicant gave him no leads or witnesses to investigate. Based on the foregoing. this Court finds Trial Counsel's actions were reasonable in the circumstances, and did not fall below professional norms of reasonableness. Cherry, 300 S.C. at 117, 385 S.E2d at 625 (citing Strickland).
This Court further finds Applicant can show no resulting prejudice due to Trial Counsel's alleged deficiencies as there is clear evidence of overwhelming guilt. Where there is overwhelming evidence of guilt, a trial counsel's deficient representation will not be prejudicial. See Franklin v. Catoe, 346 S.C. 563, 570 n. 3, 552 S.E.2d 718, 722 n. 3 (2001) (finding overwhelming evidence of guilt negated any claim that counsel's deficient performance could have reasonably affected the result of defendant's trial). This Court agrees with Trial Counsel's characterization of the State's evidence against Applicant as “overwhelming.” A review of the trial transcript reveals that Applicant was positively identified by three separate witnesses. Two of those three witnesses made in court identification of Applicant. Even more significant is Trial Counsel's testimony that Applicant admitted his guilt during the course of his representation. Based on the foregoing, this Court finds Applicant has failed to meet his burden of proof. Therefore, this Court finds this allegation should be denied and dismissed with prejudice.
Ineffective assistance of trial counsel for introducing evidence of Applicant's flight through cross-examination of Investigator Burgess.

         This Court finds Applicant's allegation that he received ineffective assistance of counsel for introducing evidence of Applicant's flight through cross-examination of Investigator Burgess to be without merit. Applicant specifically cites to the following in support of his argument:

Q: You also mention at the very end you say there were no suspects for two months?
A: No, I do not say no suspects.
Q: I thought you said that.
A: I said we did not take him into to custody for 2 months. We were looking for him. And I had to actually have the assistance of marshal services to take him in to custody.

(p. 99 lines 4-9). This Court finds the testimony elicited on cross-examination of Investigator Burgess was cumulative in nature. Investigator Burgers [sic] had previously testified on direct that they “did not apprehend the suspect for 2 months.” (p. 93 lines 1-2). This Court notes that it is clear from the record that Trial Counsel was merely attempting to clarify Investigator Burgers [sic] comments on direct. Based on the foregoing, this Court finds Trial Counsel's actions were reasonable in the circumstances, and did not fall below professional norms of reasonableness. Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland).

This Court further finds Applicant can show no resulting prejudice due to Trial Counsel's alleged deficiencies as there is clear evidence of overwhelming guilt. Where there is overwhelming evidence of guilt, a trial counsel's deficient representation will not be prejudicial. See Franklin v. Catoe, 346 S.C. 563, 570 n. 3, 552 S.E.2d 718, 722 n. 3 (2001) (finding overwhelming evidence of guilt negated any claim that counsel's deficient performance could have reasonably affected the result of defendant's trial). This Court agrees with Trial Counsel's characterization of the State's evidence against Applicant as “overwhelming.” A review of the trial transcript reveals that Applicant was positively identified by three separate witnesses. Two of those three witnesses made in court identification of Applicant Even more significant is Trial Counsel's testimony that Applicant admitted his guilt during the course of his representation. Based on the foregoing, this Court finds Applicant has failed to meet his burden of proof. Therefore, this Court finds this allegation should be denied and dismissed with prejudice.
Ineffective assistance of trial counsel for his comments in mitigation prior to sentencing.
This Court finds Applicant's allegation that he received ineffective assistance of counsel for his comments in mitigation prior to sentencing is meritless. A trial court has broad discretion in imposing criminal sentences within the limits prescribed by law. State v. Franklin, 267 S.C. 240, 226 S.E.2d 896 (1976); Clark v. State, 259 S.C. 378, 192 S.E.2d 209 (1972). The courts normally have no jurisdiction to correct a sentence given within statutory limits. To be entitled to relief, the Applicant must prove that the alleged excessive sentence was the result of partiality, prejudice, oppression or corrupt motive, or that the sentence constitutes cruel and unusual punishment. Clark, Id.; State v. Cogdell, 273 S.C. 563, 257 S.E.2d 748 (1979).
Applicant argues that Trial Counsel should not have stated that the jury was out for hour and a half and that they deliberate for a short period of time to the trial court. This Court finds nothing improper about Trial Counsel's remarks. Based on the foregoing, this Court finds Trial Counsel's actions were reasonable in the circumstances, and did not fall below ...

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