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Scott v. Warden Broad River Correctional Institution

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

July 29, 2019

Andrew Brent Scott, Petitioner,
v.
Warden Broad River Correctional Institution, Respondent.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge.

         The 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.

         BACKGROUND

         The 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) (app. 520-21).

         Underlying Case Facts

         The 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).

         On 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).

         Officer 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 (app. 511-12).

         Direct Appeal

         A 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 the perpetrator?

(Doc. 14-1 at 4).

         The South Carolina Court of Appeals dismissed the appeal, and the remittitur was dated December 30, 2013 (doc. 14-2).

         PCR

         The 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 criminal matter;
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 (app. 535-38).

         The 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).

         PCR Appeal

         The petitioner, who was represented by Appellate Defender Wanda H. Carter, filed a Johnson[1] 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 trial.

(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).[2] 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 procedures.
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).

         Federal Petition

         On November 30, 2018, the petitioner's § 2254 petition was entered on the docket asserting the following grounds for relief:

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 ...

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