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Anderson v. Warden

United States District Court, D. South Carolina

September 25, 2019

James Anderson, Petitioner,
v.
Warden, Respondent.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges, United States Magistrate Judge

         James Anderson (“Petitioner”) is an inmate at the Lieber Correctional Institution of the South Carolina Department of Corrections. He 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 26, 27].[1] Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by April 25, 2019. [ECF No. 28]. Petitioner filed a response on April 24, 2019 [ECF No. 30], to which Respondent replied on April 30, 2019 [ECF No. 31].

         Having carefully considered the parties' submissions and the record in this case, the undersigned recommends granting Respondent's motion for summary judgment.

         I. Factual and Procedural Background

         The underlying facts are not in dispute. During the week of July 4, 2009, Christian Vickery, Allen Smith, and J.E., a minor, were vacationing with their families in Myrtle Beach, South Carolina. [See ECF No. 26-1 at 359]. On the night of July 8, 2009, someone broke into their hotel suite and burglarized it. Id. Petitioner was subsequently arrested for the crime. Id.

         In July 2010, the Horry County grand jury indicted Petitioner for first-degree burglary (Indictment No. 2010-GS-26-2883). [ECF No. 26-1 at 368]. On March 12, 2012, represented by William Edward Chrisco (“Trial Counsel”), Petitioner proceeded to trial before the Honorable Benjamin H. Culbertson, Circuit Court Judge. Id. at 1. On March 14, 2012, the jury found Petitioner guilty as charged and Judge Culbertson sentenced him to 25 years' imprisonment. Id. at 214, 217.

         Petitioner timely appealed and presented the following issues:

I. The trial court's qualification of a police officer as an expert in fingerprint analysis violated Appellant's right to a fair trial because the officer lacked the requisite knowledge, skill, experience, training, and education to form an opinion and testify accordingly.
II. The trial judge erred in refusing to strike the testimony concerning fingerprint analysis, or in the alternative declare a mistrial, based upon the prosecutor's failure to disclose evidence favorable to Appellant and material to his guilt in violation of Appellant's state and federal constitutional rights to due process.

[ECF No. 26-2 at 5]. The South Carolina Court of Appeals (“Court of Appeals”) affirmed Petitioner's conviction on February 12, 2014, State v. Anderson, 754 S.E.2d 905 (S.C. Ct. App. 2014), and denied Petitioner's petition for rehearing on March 21, 2014 [ECF No. 26-4 at 1].

         On April 24, 2014, Petitioner filed a petitioner for a writ of certiorari in the Supreme Court of South Carolina, presenting the following question:

Did the Court of Appeals err in affirming the trial judge's refusal to strike the testimony concerning fingerprint analysis, or in the alternative, declare a mistrial, based upon the prosecutor's failure to disclose evidence favorable to Petitioner and material to his guilt in violation of Petitioner's state and federal constitutional rights to due process?

[ECF No. 26-5 at 4]. The Supreme Court of South Carolina denied the petition on November 10, 2014, and issued the remittitur on December 12, 2014. [ECF Nos. 26-1 at 366, 26-6 at 1].

         On March 23, 2015, Petitioner filed a pro se application for post-conviction relief (“PCR”) and asserted the following grounds:

10(a) Applicant was denied the right to effective assistance of counsel-guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 1, §§ 3 and 14 of the South Carolina Constitution-during the guilt or innocence phase of his trial.
11(a) Supporting facts: Trial counsel's performance during the guilt-or-innocence phase was both unreasonable and prejudicial. Counsel's acts or omissions included, but are not limited to, the following:
1. Counsel failed to adequately investigate the facts and circumstances surrounding the direct evidence of eye witness testimony.
2. Counsel's failure to such an investigation deprived the jury of vital information relevant to an accurate assessment of applicant's guilt or innocence.
3. Counsel failed to seek an instruction stating that a burglary charge must set forth one, specific crime intended upon entry and stating what the specific crime was in this case.
10(b) Applicant was denied the right to effective assistance of counsel - guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution - during the sentencing phase of his trial.
11(b) Supporting Facts: Trial counsel's performance during the sentencing phase was both unreasonable and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel's acts or omissions included, but are not limited to, the following:
1. Counsel failed to investigate, develop, and present all available, relevant, and admissible mitigating evidence. As a result of counsel's failure to uncover and present this evidence, applicant's sentence is unreliable.
2. Counsel failed to object on all possible grounds to inflammatory and irrelevant evidence presented by the prosecution. As a result of counsel's failure to make all appropriate objections, applicant's sentence is unreliable.
10(c) Applicant was denied his due process rights as secured by the Fourth and Fourteenth Amendments because of the cumulative effect of several instances of deliberate prosecutorial misconduct.
11(c) Supporting Facts: Prosecutors during all phases of this case acted unreasonable and prejudicial. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) along with South Carolina Rule 5. Prosecutors acts or omissions included by not limited to, the following:
1. Prosecutor did not provide trial defense counsel with discovery materials in a timely fashion.
2. Prosecutor did not provide defense counsel with all relevant discovery materials.
3. Prosecutor did provide fraudulent materials to defense counsel six days prior to trial.
4. Prosecutors deceiving tactics did impede the defense in making reasonable decisions did result in unethical conduct.
10(d) Applicant was denied his Sixth Amendment right to a trial by an impartial and objective jury.
11(d) Supporting Facts: During voir dire potential jurors were asked about any type of relationships with defendant, if so please stand. (No response) See McCoy v. State, 401 S.C. 363, 737 S.E.2d 623 (2013). Jurors concealment deprived him of information material to his intelligent use of peremptory challenges. Jurors act or omissions included but not limited to:
1. Juror who was empaneled and sat through entire trial did intentionally conceal information and was directly in contempt of court.
2. Juror concealed information that would have supported a challenge for cause or would have been a material factor in the use of the party's peremptory challenges.

[ECF No. 26-1 at 230-34 (errors in original)]. The State filed a return on August 25, 2015. Id. at 235-39. The Honorable Michael J. Nettles, Circuit Court Judge, held an evidentiary hearing on February 7, 2017, at which Petitioner was represented by Steven W. Fowler, Esq. Id. at 241-346. Petitioner and Trial Counsel testified regarding Petitioner's claims of ineffective assistance of counsel and prosecutorial and juror misconduct. Id. On May 4, 2017, Judge Nettles denied Petitioner's PCR application and dismissed it with prejudice. Id. at 347-57.

         On March 8, 2018, Petitioner appealed the PCR court's decision to the South Carolina Supreme Court through a Johnson[2] petition for a writ of certiorari filed by Appellate Defender LaNelle Cantey Durant. [ECF No. 26-7 at 1-11]. The petition presented the following issue:

Did the PCR court err by not finding trial counsel ineffective for failing to conduct a sufficient investigation into Petitioner Anderson's case by not interviewing the main witness, Joe E., a minor who testified at the trial and identified Petitioner as the burglar when the witness had told the state before trial that he could not identify the burglar but trial counsel never talked to this witness?

Id. at 3. Durant certified the petition was without merit and requested to be relieved as counsel. Id. at 12-13. Petitioner did not file a pro se response to the Johnson petition. The South Carolina Supreme Court denied the petition for a writ of certiorari and granted Durant's request to be relieved as counsel on October 10, 2018. [ECF No. 26-8]. On October 26, 2018, the court issued the remittitur, which was filed on October 29, 2018. [ECF No. 26-9].

         II. Discussion

         A. Federal Habeas Issues

         Petitioner originally asserted six grounds for relief. [See ECF No. 20-1 at 5-12]. On January 29, 2019, he amended his petition to add a seventh ground. [ECF No. 20]. On June 26, 2019, Petitioner withdrew Grounds One, Three, and Seven. [ECF No. 32]. Accordingly, Petitioner raises the following grounds:

Ground Two: The trial judge erred in refusing to strike the testimony concerning fingerprint analysis, or in the alternative declare a mistrial.
Ground Four: Failure to investigate and adequately cross examine witness [minor JE] which was a minor at the time.
Ground Five: Prosecutorial misconduct; prosecutor did not provide trial defense counsel with discovery in a timely fashion. She been had that statement because the officer talked to [minor JE] the night of the burglary.
Ground Six: Prosecutorial misconduct, prosecutor did not provide defense counsel with all relevant ...

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