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Brown v. Warden, Ridgeland Correctional Institution

United States District Court, D. South Carolina

September 30, 2019

Samuel Brown, Jr., Petitioner,
v.
Warden, Ridgeland Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          Paige J. Gossett UNITED STATES MAGISTRATE JUDGE

         Petitioner 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).[1] 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.

         BACKGROUND

         In 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.)

         Petitioner 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.)

         A 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[2] 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.)

         Petitioner 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.)

         Appellate counsel also filed a belated appeal of Petitioner's conviction and sentence by filing an Anders[3] 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 time?
Did the judge err by denying motion for direct verdict where evidence of the elements of trafficking, 44-53-375, was insufficient?
Did judge err by over ruling counsel's objection of prosecution closing arguments due to facts not being in evidence?

(ECF No. 18-6 at 5) (errors in original).

         By 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. (Id.)

         FEDERAL ...


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