United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin, United States Magistrate Judge.
matter is before the Court on Respondent's motion for
summary judgment. [Doc. 11.] 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.
proceeding with the assistance of counsel, filed this
Petition for writ of habeas corpus on February 5, 2019. [Doc.
1.] On April 25, 2019, Respondent filed a return and
memorandum to the Petition and a motion for summary judgment.
[Docs. 10, 11.] Petitioner filed a response in opposition on
May 9, 2019. [Doc. 12.]
carefully considered the parties' submissions and the
record in this case, the Court recommends Respondent's
motion for summary judgment be granted.
is confined in the South Carolina Department of Corrections
at Evans Correctional Institution pursuant to orders of
commitment of the Horry County Clerk of Court. [Doc. 1 at 1.]
In February 2013, Petitioner was indicted for distribution of
cocaine. [App. 239-40. On July 24, 2013, represented by Kia
Wilson, Petitioner proceeded to trial. [App. 1-177.] On July
25, 2013, the jury found Petitioner guilty. [App. 167-68.] He
received a sentence of seventeen years' imprisonment.
filed a notice of appeal. [Doc. 10-2.] Benjamin John Tripp of
the South Carolina Commission on Indigent Defense filed an
Anders brief on Petitioner's behalf in
the South Carolina Court of Appeals, dated March 13, 2014,
raising the following issue:
Whether the trial judge erred in failing to enter a directed
verdict of acquittal against a charge of trafficking cocaine
where the State conducted a confidential-informant buy; where
none of the testifying law enforcement officers witnessed the
alleged transaction; where the informant wore a hidden video
that did not capture Appellant providing the cocaine; and
where although the informant testified that Appellant got in
the backseat of the car behind her to make the transaction,
the informant also admitted that she had three prior
convictions for forgery?
[Doc. 10-3 at 4.] At the same time he filed the
Anders brief, Tripp submitted a petition to be
relieved as counsel. [Id. at 10.]
subsequently filed a pro se brief raising the following
issues, quoted substantially verbatim:
Trial court's plain error in giving of, confusing, and
misleading jury instructions.
Trial court's error in failing to give curative
instruction, clarify, and/or recharge plainly confused and
misled jury on questions and issues of law applicable to
Trial court erred in giving of coercive Allen charge,
violating defendant's right to fair and impartial trial.
Where trial court erred in denial of directed verdict motion
of defendant from insufficient evidence adduced at trial.
[Doc. 10-4 at 4.] On October 8, 2014, the South Carolina
Court of Appeals dismissed Petitioner's appeal and
granted counsel's motion to be relieved. [App. 246-47.]
Remittitur was issued on October 27, 2014. [Doc. 10-5.] On
October 31, 2014, the Supreme Court of South Carolina
dismissed an attempt to seek review of the Court of
Appeals' decision. [Doc. 10-6.]
proceeding pro se, filed an application for post-conviction
relief (“PCR”) on December 12, 2014. [App.
178-86.] The PCR application alleged Petitioner was being
held in custody unlawfully based on the following grounds and
supporting facts, quoted substantially verbatim:
(a) Ineffective assistance of counsel during trial
Counsel's failure to effectively utilize pretrial
motions, or establish an assertive defense, and raise
significant objections in the criminal process fell below the
standard of reasonableness and resulted in an unfair outcome
of trial which prejudiced defendant. . . . Trial counsel puts
on record ?that her client is unsatisfied with her
performance before trial.”
(b) Due process
The trial judge erred in failing to enter a directed verdict
because the state did not present substantial circumstantial
evidence that Appellant was the person who committed the
charged offense. The accused is entitled to a directed
verdict when the state fails to present evidence to support
every element of a charged offense.
(c) Ineffective assistance of counsel, performance on appeal
Appellate Counsel's failure to perform and raise
meritorious issues on appeal where contemporaneous objections
preserved by trial counsel went ignored. Also filing of
Anders by counsel, where issues were clearly meritorious,
prejudiced appellant and appeal dismissed due to
counsel's ineffectiveness. The Due Process clause of the
Fourteenth Amendment guarantees the right to effective
assistance of counsel on a first appeal.
[App. 180-81.] The State filed a return, dated June 15, 2015.
hearing was held on February 9, 2016, and Petitioner was
represented at the hearing by James Falk. [App. 194-232.] At
the conclusion of the hearing, the court allowed the parties
one week to brief issues. [App. 230.] Supplemental memoranda
were filed on February 18, 2016. [Docs. 10-7; 10-8.] On March
11, 2016, the PCR court filed an order denying and dismissing
the PCR application with prejudice. [App. 233-38.]
appealed. LaNelle Cantey DuRant of the South Carolina
Commission on Indigent Defense filed on Petitioner's
behalf a Johnson petition for writ of certiorari in
the Supreme Court of South Carolina, dated September 23,
2016. [Doc. 10-10.] The petition asserted the following as
the sole issue presented:
Did the PCR court err in failing to find trial counsel
ineffective for not objecting to the state showing the jury
one frame from the video on a large screen that was the
alleged view of Petitioner in the vehicle window during the
drug transaction and then not objecting to the judge
requiring Petitioner to stand next to the enlarged video
frame which was prejudicial to Petitioner because it then
became a new trial exhibit and new evidence when
identification was the main issue?
[Id. at 3.] At the same time she filed the
Johnson petition, DuRant submitted a petition to be
relieved as counsel. [Id. at 12.] Petitioner filed a
pro se response to the petition and raised the following
issues, quoted substantially verbatim:
(1) Did trial court's amendment of indictment change the
nature of the offense, which deprived the court of subject
(2) Did trial court impermissibly prosecute defendant where
there was no indictment for conviction for §
(3) Did PCR court err in failure to find trial counsel
ineffective where trial counsel failed to object to and seek
curative instruction for prejudicial hearsay testimony?
(4) Did PCR court err in failure to find trial counsel
ineffective for failure to suppress video tape which was
prejudicial to defendant?
(5) Did PCR court err in failing to find trial counsel
ineffective for failing to object to trial court's
inappropriately forcing defendant's identity into
(6) Did trial counsel's failure to object to trial
court's improper giving of Allen charge prejudice
[Doc. 10-11 at 5.]
appeal was transferred to the South Carolina Court of
Appeals, which denied the petition and granted counsel's
request to withdraw on April 17, 2018. [Doc. 10-12.]
Remittitur was issued on May 7, 2018. [Doc. 10-13.]
for Declaratory Judgment and Injunctive Relief
April 11, 2017, Petitioner, proceeding pro se, filed a
petition for declaratory judgment and injunctive relief in
the Court of Common Pleas of Horry County, asserting that
S.C. Code § 44-53-375 was being interpreted and used to
modify sentences in a manner that was contrary to the United
States Constitution and the South Carolina state
constitution. [Doc. 10-14.] On June 14, 2017, the Supreme
Court of South Carolina dismissed the petition. [Doc. 10-15.]
for Writ of Habeas Corpus
filed this Petition for writ of habeas corpus on February 5,
2019. [Doc. 1.] Petitioner raises the following grounds for
relief, quoted substantially verbatim, in his Petition
pursuant to 28 U.S.C. § 2254:
GROUND ONE: Trial counsel was ineffective
when she failed to make a pre-trial motion to exclude and/or
redact video evidence of the alleged drug transaction.
Supporting facts: During trial, the State presented
a video of the alleged drug transaction that was the basis
for [Petitioner's] distribution charge. The video did not
capture the transaction itself, and furthermore during the
introduction to the video, the investigating officer
indicates that the video will show a narcotics transaction
involving [Petitioner]. Trial counsel did not move to exclude
this video, nor did she move to have the officer's
narration redacted from the video when it was played for the
GROUND TWO: Trial counsel was ineffective
for failing to exclude or object to hearsay testimony during
Supporting facts: The State presented testimony from
Officer Robert Pellerin during the trial. During his
testimony, Pellerin gave a detailed account of the alleged
drug transaction. In fact, Pellerin did not personally
observe many of the events that he described to the jury.
This fact was known to trial counsel, and yet she did not
object to Pellerin's testimony, move to strike his
testimony, or move for a mistrial after his testimony was
presented to the jury. Counsel also did not move to exclude
this testimony prior to trial.
GROUND THREE: Trial counsel was ineffective
for failing to contemporaneously object and/or move for a
mistrial after the court's Allen charge during jury
Supporting facts: The jury began deliberating at
approximately 3:53 p.m. on July 24, 2013. After several jury
questions, the trial judge excused the jury at 6:50 p.m., and
then gave an Allen charge as soon as the jury re-convened in
the morning. Counsel objected to this procedure only after
the charge had already been delivered, and did not move for a
mistrial after the charge was given.
GROUND FOUR: Trial counsel was ineffective
for failing to object and/or move for mistrial when the court
instructed the Defendant to stand next to an image of the
Supporting facts: During deliberations, the jury
asked to see the video of the alleged drug transaction again.
The court then instructed the prosecutor to freeze-frame the
video on a portion of the video that allegedly depicted the
perpetrator of the drug transaction, and then the court
instructed the Defendant to stand next to the screen so that
the jury could compare the two. Trial counsel did not
contemporaneously object, or move for a mistrial after this
procedure took place.
[Doc. 1 at 5-10; see also Doc. 1-1 at 14-17.] As
stated, on April 25, 2019, Respondent filed a motion for
summary judgment. [Doc. 11.] On May 9, 2019, Petitioner filed
a response in opposition. [Doc. 12.] Accordingly, the motion
for summary judgment is ripe for review.
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).
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 affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. Further,
Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has
shifted the burden of proof to the non-movant, he must
produce existence of a factual dispute on every element
essential to his action that he bears the burden of adducing
at a trial on the merits.
Petitioner filed the Petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), review of his claims is governed by 28
U.S.C. § 2254(d), as amended. Lindh v. Murphy,
521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615
(4th Cir. 1998). Under the AEDPA, federal courts may not
grant habeas corpus relief unless the underlying state
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the ...