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Witherspoon v. Stonebreaker

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

July 11, 2019

Lynel Witherspoon, Petitioner,
v.
Donnie Stonebreaker, Warden of Evans 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. 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.

         Petitioner, 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.]

         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 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.[1] 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. [App. 174-75.]

         Direct Appeal

         Petitioner filed a notice of appeal. [Doc. 10-2.] Benjamin John Tripp of the South Carolina Commission on Indigent Defense filed an Anders[2] 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.]

         Petitioner 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 case.
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.]

         PCR Proceedings

         Petitioner, 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. [App. 187-93.]

         A 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.]

         Petitioner appealed. LaNelle Cantey DuRant 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 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 matter jurisdiction?
(2) Did trial court impermissibly prosecute defendant where there was no indictment for conviction for § 44-53-375(B)(3)?
(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 jeopardy?
(6) Did trial counsel's failure to object to trial court's improper giving of Allen charge prejudice defendant?

[Doc. 10-11 at 5.]

         The 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.]

         Petition for Declaratory Judgment and Injunctive Relief

         On 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.]

         Petition for Writ of Habeas Corpus

         Petitioner 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 jury.
GROUND TWO: Trial counsel was ineffective for failing to exclude or object to hearsay testimony during trial.
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 deliberations.
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 alleged perpetrator.
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.

         APPLICABLE LAW

         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 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.

         Habeas Corpus

         Generally

         Because 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 adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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