United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
petitioner, a state prisoner proceeding pro se and in forma
pauperis, seeks habeas corpus relief pursuant to 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 is currently incarcerated at Broad River
Correctional Institution in the South Carolina Department of
Corrections (“SCDC”) (doc. 1 at 1). The
petitioner was indicted by the Spartanburg County Grand Jury
in November 2010 for assault and battery 1st degree
(2010-GS-42-6835), kidnapping (2010-GS-42-6836), and armed
robbery and possession of a weapon during the commission of a
violent crime (2010-GS-42-6837) (app. 699-704). He was
represented by Beverly Jones (“trial counsel”) on
these charges (app. 1). Beginning April 24, 2012, the
petitioner proceeded to jury trial before the Honorable Roger
L. Couch (app. 1-522). The jury found the petitioner guilty
as charged (app. 511-12). Judge Couch sentenced the
petitioner (with credit for time served) to 30 years of
imprisonment for kidnapping, 30 years of imprisonment for
armed robbery (to run concurrent with the kidnapping
sentence), ten years of imprisonment for assault and battery
(to run concurrent to the other sentences), and five years of
imprisonment for possession of a weapon in the commission of
a violent crime (to run consecutive to the other sentences)
petitioner was accused of robbing The Money Tree in downtown
Chesnee and of assaulting and kidnapping the clerk, Bridgette
Jackson (app. 699-704). Shortly after the robbery, the clerk
was able to identify the petitioner from a photo lineup (app.
171-74). Prior to trial, the trial court held a hearing
pursuant to Neil v. Biggers, 409 U.S. 188 (1972)
regarding the suggestiveness of the lineup procedure (app.
34-92). The State called Ms. Jackson and Officer Stephanie
Lovell at the hearing (id.). Ms. Jackson testified
that she was working at the Money Tree on September 28, 2010
(app. 38-39). During her break, she noticed a man wearing all
black riding a bicycle (app. 39-40). After leaving the
bicycle in front of the store, the individual entered the
store, but she lost track of the man inside the store (app.
40-42). Ms. Jackson testified that she next saw the man
trying to come through the “employees only” door
with a knife in his hand (app. 42-43). Ms. Jackson testified
that the assailant was wearing a hat and sunglasses (app.
44). After an altercation during which the assailant took
money from the store's safe, she was able to escape to
the nearby city hall building (app. 45-49). Ms. Jackson
testified that she was able to observe the assailant for at
least a minute (app. 51). She testified that she was later
taken to Mary Black Hospital to receive treatment for her
injuries (app. 52-53). She indicated that while she was being
treated at Mary Black Hospital, Officer Lovell brought in a
photo lineup for her to look at (app. 53-58). After looking
at the lineup, she picked picture No. 5, the petitioner,
based upon the cheek and nose structure (id.). Ms.
Jackson further testified that she originally signed her name
in the wrong spot on the form, but that she and Officer
Lovell marked through the incorrect signature and corrected
it (app. 57-58). Ms. Jackson then made an in-courtroom
identification of the petitioner (app. 58-59).
cross-examination, Ms. Jackson testified that a co-worker,
Regina Jones, had informed her that a “Mr. Scott,
” who used to be a Money Tree employee, had been
telling people he was going to rob the store (app. 72). Ms.
Jackson also testified that after the robbery (but before
completing the lineup), Ms. Jones came to city hall and said,
“I can't believe he did this, ” referencing
Mr. Scott, the petitioner (app. 71). Ms. Jackson further
testified that she had spoken to “Mr. Scott” on
the phone while he worked at Money Tree, but she had never
met him in person (app. 69-70).
Lovell testified at the hearing that she obtained the photo
lineup from the Spartanburg County Detention Center (and that
it was ordered by Sgt. Kip Teal, the investigating officer)
(app. 78-79, 85-86). Officer Lovell indicated that she met
Ms. Jackson at Mary Black Hospital and handed her the photo
lineup to review (app. 79-83). Officer Lovell also testified
that the petitioner's name was written on the lineup
after Ms. Jackson made her choice (app. 83). In light of the
proffered testimony, trial counsel argued that the suggestion
by Ms. Jones prior to Ms. Jackson's review of the lineup
could have impacted Ms. Jackson's identification of the
petitioner (app. 89-90). Thus, trial counsel argued the photo
lineup was suggestive and should not be admitted (app. 90).
The solicitor argued that the suggestion by Ms. Jones had no
bearing on the identification because Ms. Jackson had never
met “Mr. Scott, ” and the lineup contained no
names until after Ms. Jackson had picked “No. 5”
(app. 90-91). Judge Couch allowed the identification to go
forward, noting that the mention of a name to Ms. Jackson,
absent any description of that individual or photograph,
would not have affected her identification of someone who was
unnamed and not identified by name at the time of her
identification (app. 91-92). During the trial, the
photographic lineup was admitted into evidence, and Ms.
Jackson identified the petitioner in court (app. 170-77). At
the end of the trial, the petitioner was convicted as charged
timely notice of appeal and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), were filed on the
petitioner's behalf (doc. 14-1). The Anders brief raised
the following issue on appeal:
1. Whether the trial court erred in permitting an in-court
identification of appellant and a photographic lineup to be
admitted into evidence when the witness's identification
had been corrupted by her being told, prior to viewing a
photographic lineup, that the police suspected appellant was
(Doc. 14-1 at 4).
South Carolina Court of Appeals dismissed the appeal, and the
remittitur was dated December 30, 2013 (doc. 14-2).
petitioner filed an application for post-conviction relief
(“PCR”) on January 24, 2014, alleging the
following grounds for relief:
1. Ineffective assistance of counsel, in that;
a. Counsel refused to subpoena the victim's co-worker to
address identification issues,
b. Counsel failed to properly interview witnesses and
investigate the crime scene,
c. Counsel failed to make a motion regarding the illegal
search and seizure,
d. Counsel may have had a conflict as a result of
representing the arresting officer's wife in another
2. Illegal search and seizure, in that;
a. Applicant has never seen or received an arrest warrant or
search warrant for his home;
3. Identification, in that; a. Victim's testimony
regarding identification should not have been allowed.
(App. 523-34). The State filed its return on August 20, 2014
Honorable R. Ferrell Cothran, Jr., held an evidentiary
hearing into the matter on January 13, 2016 (app. 540-680).
The petitioner was present at the hearing and represented by
Leah B. Moody (app. 540). Assistant Attorney General Alicia
A. Olive represented the State (id.). Prior to the
beginning of the hearing, the petitioner sought a
continuance, arguing that PCR counsel was not communicating
with him and that none of his witnesses were available/at the
hearing (app. 543-57). The petitioner then testified on his
own behalf (app. 559-624). Ms. Virdia Copeland, identified by
the petitioner as his wife, also testified (app. 625-38). The
PCR court then heard testimony from trial counsel (app.
642-79). After hearing the testimony, Judge Cothran denied
PCR relief, noting that the petitioner failed to demonstrate
deficient performance of trial counsel or resulting
prejudice, that his illegal search and seizure and
identification grounds were direct appeal issues, and that
the petitioner failed to demonstrate that trial counsel
represented conflicting interests (app. 681-98).
petitioner, who was represented by Appellate Defender Wanda
H. Carter, filed a Johnson petition for writ of certiorari in the
South Carolina Supreme Court (docs. 14-5; 14-6; 14-7). The
petition raised a single issue for consideration and
requested that Wanda H. Carter be relieved as counsel:
Trial counsel erred in failing to interview store manager
Regina Jones as a potential witness prior to trial and in
failing to call her as a witness in order to present a
consent to kidnapping defense on petitioner's behalf at
(Doc. 14-7 at 3). On May 1, 2017, the petitioner filed a pro
se Johnson response brief in the South Carolina Supreme Court
(doc. 21-1). In the pro se Johnson response brief, the
petitioner noted the following matters for appeal:
1) The trial judge erred in violating my due process of the
5th Amendment by willfully permitting the admission of the
rehearsed identification testimony and erroneous documents
obtained from non-credible [witnesses], which lead to
irreparable mistaken identification due to overly suggestive
2) [Trial counsel] failed to bring to the court's
attention the validity of the consent to search procedure,
its accompanied legal document. Trial counsel failed to bring
to the court's attention, the 4th Amendment rights and
protection of all of the occupants of the home to be
searched. Trial counsel failed to bring to the court's
attention of the consenter's right to refuse consent
(Miranda Rights), the consenter's age, level of
education, state of mind, and her knowledge of law. Trial
counsel failed to bring to the court's attention probable
cause for the actions of the police department. Trial counsel
failed to make a motion to have all charges dropped and/or
dismissed for the illegal actions leading to arrest.
3) My trial counsel, [ ] failed to bring to the court's
attention, the illegal and unusual document, [supposedly
signed] by Magistrate Eber C. Gowan and Sgt. Kip Teal,
Chesnee Police, purporting to be an affidavit for DNA. Trial
counsel failed to bring to the court's attention that
there was not a court order nor a search warrant to
accompan[y] the affidavit. Trial counsel failed to bring to
the court's attention the results from that analysis that
was orchestrated on September 29, 2010. Most importantly,
trial counsel failed to bring to the court's attention
why [it was] necessary to order another DNA analysis again on
March 23, 2012.
(Doc. 21-1). The Supreme Court of South Carolina subsequently
transferred jurisdiction of the petition to the South
Carolina Court of Appeals (doc. 14-8). The Court of Appeals
dismissed the petition by written order filed on October 16,
2018 (id.). The remittitur was issued on November 9,
2018, and filed by the Spartanburg County Clerk of Court on
November 13, 2018 (doc. 14-9).
November 30, 2018, the petitioner's § 2254 petition
was entered on the docket asserting the following grounds for
Ground One: Identification
Supporting Facts: The identification process
was flawed and suggestive in that the victim was told two
weeks before the robbery that a guy named Scott was going to
rob the store. On the day of the robbery, the victim and
co-worker reminded her about their previous conversation.
Ground Two: Illegal search and seizure
Supporting Facts: There was no arrest
warrant, nor a search warrant at the time of entry and
arrest. Ms. Virdia Copeland, my fiancé, was forced,
coerced, and threatened by the authority of the police during
a stressful and vulnerable time. She was 72 yrs. old and her
mother (age 96) was in ICU. Ms. Copeland refused twice to
give them her house keys.
Ground Three: Illegal and falsified documents
Supporting Facts: My trial attorney, Ms.
Beverly Jones, never brought to the court's attention
that the arrest warrant was dated and obtained on the day
after the arrest. The address for execution on the arrest
warrant was addressed to and for my parents' house in
Richland county. The photo line-up ...