United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. Gossett UNITED STATES MAGISTRATE JUDGE
Samuel Brown, Jr., a self-represented state prisoner, filed a
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 Civil Rule 73.02(B)(2)
(D.S.C.) for a Report and Recommendation on Respondent's
motion for summary judgment. (ECF No. 19.) 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. (ECF
No. 21.) Petitioner filed a response in opposition (ECF No.
27), and Respondent replied (ECF No. 32). Having carefully
considered the parties' submissions and the record in
this case, the court finds that Respondent's motion
should be granted and the Petition denied.
November 2012, Petitioner was indicted in the Charleston
County Court of General Sessions for trafficking cocaine.
(App. at 364, ECF No. 18-1 at 366.) Petitioner was
represented by James W. Smiley and Laree Hensely.
(Id. at 1, ECF No. 18-1 at 3.) Petitioner was
convicted as charged after a trial and sentenced to ten
years' imprisonment. (Id. at 263, ECF No. 18-1
at 265.) Trial counsel filed a notice of appeal but it was
dismissed by the South Carolina Court of Appeals because it
was not filed in accordance with the South Carolina Appellate
Court Rules. (ECF No. 18-2 at 8, 13-17.)
filed an application for post-conviction relief
(“PCR”) in the Charleston County Court of Common
Pleas. (Id. at 265, ECF No. 18-1 at 267.) Petitioner
raised the following claims in his application:
(a) Ineffective assistance of counsel - failure to call
witnesses, failure to investigate and prepare for trial,
failure to object to evidence, failure to file appeal,
failure to object to jury instruction, failure to object to
arguments, failure to move for a mistrial.
(b) Rule 5/Brady violations - failure to object and preserve
Rule 5/Brady violations.
(c) Failure to notify and accept plea offer - failure to
communicate plea offer and acceptance.
(Id. at 266-67, ECF No. 18-1 at 268-69.)
hearing was held on Petitioner's PCR application on April
18, 2016, in which Petitioner was represented by William H.
Nixon, Jr., Esquire. (Id. at 276, ECF No. 18-1 at
278.) At the hearing, Petitioner also claimed that he was
entitled to a belated direct appeal pursuant to White v.
State due to trial counsel's failure to
perfect an appeal from his conviction. (Id. at 358,
ECF No. 18-1 at 360.) The State stipulated that Petitioner
was entitled to a belated direct appeal. (Id. at
325-26, ECF No. 18-1 at 327-28.) By order dated July 5, 2016,
the PCR court granted Petitioner a belated direct appeal but
dismissed Petitioner's claims for post-conviction relief.
(Id. at 353, ECF No. 18-1 at 355.)
appealed the PCR court's denial of his application by
filing a petition for a writ of certiorari in the South
Carolina Supreme Court. (ECF No. 18-3.) Petitioner was
represented on appeal by Lanelle Cantey Durant, Appellate
Defender with the South Carolina Commission on Indigent
Defense. (Id.) Petitioner raised the following issue
in his PCR appeal:
The PCR court erred in failing to find trial counsel
ineffective for not investigating more thoroughly weeks
before trial into the identity of the confidential informant
and the informant's background as the informant was the
only real evidence against Petitioner.
(ECF No. 18-3 at 2.)
counsel also filed a belated appeal of Petitioner's
conviction and sentence by filing an
Anders brief pursuant to White v. State.
(ECF No. 18-5.) The following is the sole issue raised by
appellate counsel in the Anders brief:
The trial court erred in overruling defense attorney's
objection to the state arguing facts not in evidence in his
closing argument which was prejudicial and a violation of
Petitioner Brown's due process right to a fair trial
because the state presented the appearance that Petitioner
Brown initiated the drug transaction.
(ECF No. 18-5 at 2.) Petitioner filed a pro se brief
in support of his direct appeal, raising the following
issues, quoted verbatim:
Did state not allow defendant due process rights, under the
Constitution 4th Amendment, by not disclosing exculpatory
evidence, confidential informant package, in due diligence of
Did the judge err by denying motion for direct verdict where
evidence of the elements of trafficking, 44-53-375, was
Did judge err by over ruling counsel's objection of
prosecution closing arguments due to facts not being in
(ECF No. 18-6 at 5) (errors in original).
order dated October 30, 2017, the Supreme Court transferred
Petitioner's appeal to the South Carolina Court of
Appeals. (ECF No. 18-7.) In a per curiam opinion
filed June 13, 2018, the Court of Appeals denied
Petitioner's petition for a writ of certiorari as to his
PCR appeal because “[e]vidence supports the PCR
court's dismissal of Petitioner's claim of
ineffective assistance of counsel.” (ECF No. 18-8 at
2.) However, the Court of Appeals granted the petition for a
writ of certiorari as to Petitioner's direct appeal,
conducted a review pursuant to Anders, and dismissed
Petitioner's direct appeal without explanation.