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Herriott v. Stephan

United States District Court, D. South Carolina

October 2, 2019

Derrick D. Herriott, Petitioner,
v.
Warden Stephan, Respondent.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

         Derrick D. Herriott (“Petitioner”) is an inmate at the Broad River 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. 19, 20]. 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 8, 2019. [ECF No. 21]. On April 1, 2019, the court received a letter from Petitioner indicating he had not yet received Respondent's return and motion for summary judgment. [ECF No. 23]. The court directed Respondent to serve Petitioner with another copy and extended Petitioner's deadline to respond until May 8, 2019. [ECF No. 24]. Petitioner filed a response on April 3, 2019 [ECF No. 26] and a supplement to his response on April 26, 2019 [ECF No. 30]. Respondent did not file a reply.

         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 evidence at trial established the following facts, which Petitioner does not dispute. On March 16, 2007, Petitioner had an altercation with his girlfriend in her apartment and shot her 14 times with an assault rifle. Neighbors in the apartment complex heard the gunshots and witnessed Petitioner exit the apartment holding a gun. Petitioner was arrested and the Sumter County Grand Jury indicted him for murder and possession of a firearm during the commission of a violent crime. [ECF No. 19-3 at 80-81].

         Petitioner proceeded to trial on November 10, 2008, before the Honorable George C. James, Jr., Circuit Court Judge. [ECF No. 19-1 at 3]. Petitioner was represented by William Ceth Land, Esq. Id. After a three-day trial, the jury found Petitioner guilty, but mentally ill, and Judge James sentenced him to life in prison without the possibility of parole. [ECF No. 19-3 at 82-83].

         Petitioner appealed his conviction and sentence and, through a counseled Anders[1] brief, asserted:

[t]he trial judge committed reversible error by failing to instruct the jury on the defense of insanity and that, “if the jury believed that the defendant was in such a state of mind on account of its derangement or impairment as to render him incapable of knowing the distinction between right and wrong at the time he committed this act, that . . . he would not be responsible, ” as provided by State v. Lloyd, 85 S.C. 73, 67 S.E.2d 9, 11 (1910).

Id. at 397.

         In addition, Petitioner filed a pro se appellate brief that presented the following issues:

1) Did the trial court err, and was the appellant's 5th, 6th, 14th Amendment rights of the U.S. Constitution violated, as well as Article IV § 2, and his Due Process Rights violated, by the prosecuting body and trial court judge charging the jury that malice can be inferred by use of a deadly weapon?
2) Did the trial court err, and was the Appellant's 5th, 6th, 14th Amendment rights of the U.S. Constitution violated, as well as Article IV § 2, and his Due Process Rights violated, by the trial court allowing testimony by various witnesses to be entered into court record, and or allowing their statements related thereto to be entered into evidence in the case or trial, when there was no evidence adduced at trial that the witnesses were given a copy of the statements the time they made them, nor was there given to them a copy of a receipt for the taking thereof?
3) Did the trial court err, and was the Appellant's 5th, 6th, 14th Amendment rights of the U.S. Constitution violated, as well as Article IV § 2, and his Due Process Rights violated due to the court denying the Appellant's Motion for Direct Verdict, because no rational trier of facts would find the Appellant guilty of every fact and element of the offense(s) charged in the indictment(s), especially since all the statements and testimony are taken in violation of the statutes?

Id. at 412-13 (errors in original). After reviewing the record and arguments, the South Carolina Court of Appeals (“Court of Appeals”) dismissed Petitioner's appeal and granted counsel's motion to be relieved. State v. Harriott, 2012-UP-427 (S.C. Ct. App. July 18, 2012).

         On January 31, 2013, Petitioner filed a pro se application for post-conviction relief (“PCR”), asserting trial counsel was ineffective for failing to: (1) “request a charge on the defense of insanity” or “object to its omission”; (2) “object to the court's verdict form, not including all four [] forms of verdict, when presented to the jury as required by statute”; (3) “object to an improper instruction” regarding inferred malice; and (4) “petition the Court, prior to the petit jury being sworn, for a motion to quash” the indictment. [ECF No. 19-2 at 9-19]. The Honorable R. Ferrell Cothran, Jr., Circuit Court Judge, held an evidentiary hearing on May 29, 2014, at which Petitioner was represented by Casey Cornwell, Esq. Id. at 25.[2] On July 11, 2014, Judge Cothran denied Petitioner's PCR application and dismissed it with prejudice. Id. at 55-65.

         On November 3, 2014, Petitioner filed a second PCR application pursuant to Austin v. State, 409 S.E.2d 395 (S.C. 1991), [3] asserting his PCR counsel refused to file a timely notice of appeal from the denial of his first application. [ECF No. 19-3 at 6-7]. On July 1, 2015, appointed counsel Lance S. Boozer, Esq., amended Petitioner's application to add claims that Trial counsel was ineffective for failing to (1) move to quash the indictment prior to the jury being sworn and (2) object to the verdict form's omission of not guilty by reason of insanity. Id. at 31.

         The State moved to dismiss Petitioner's ineffective assistance of counsel claims as beyond the scope of Austin review. Id. at 27-29. The Honorable Steven H. John, Circuit Court Judge, held a hearing on the State's motion to dismiss on July 14, 2015, at which the State consented to a belated appeal of Petitioner's initial PCR action. Id. at 33-44. On September 16, 2015, Judge John granted Petitioner's request for an Austin appeal and denied his ineffective assistance of counsel claims as successive and time-barred. Id. at 75-79.

         Petitioner's counsel filed a timely notice of appeal and Appellate Defender Laura R. Baer, Esq., filed an Austin petition in the South Carolina Supreme Court. [ECF Nos. 19-5, 19-6]. Separately, counsel filed a Johnson[4]petition for a writ of certiorari regarding Petitioner's initial PCR action asking whether “the PCR court erred in finding that trial counsel provided effective assistance where he failed to present any evidence in support of or request a jury charge on insanity.” [ECF No. 19-7 at 3]. Petitioner filed a pro se brief in support of the Johnson petition to raise the additional issues of:

1. Whether the appellant defender properly filed a Johnson brief as opposed to a merits brief on the issues of the PCR court's finding as to counsel's trial performance, as it relates to the statutory forms of the verdict?
2. Whether such failure by the court to charge “all statutory” options, rendered the trial fundamentally unfair, as well as being a “structural error”, requiring ‘automatic reversal' of the conviction and sentence?
3. Whether the PCR court's resolution of the matters above inconsistent with statutory, constitutional and well established rules of criminal and civil procedure?

[ECF No. 19-8 at 2 (errors in original)]. The South Carolina Supreme Court transferred jurisdiction to the Court of Appeals, which conducted an Austin review of Petitioner's first PCR action, denied the petition for a writ of certiorari, and granted counsel's request to withdraw on October 30, 2018. [ECF No. 19-9]. The Court of Appeals issued the remittitur on November 19, 2018. [ECF No. 19-10].

         II. Discussion

         A. Federal Habeas Issues Petitioner raises the following grounds in his federal petition for a writ of habeas corpus:

Ground One: Ineffective Assistance of Counsel, in violation of Petitioner's Sixth Amendment rights to a fair trial.
Supporting Facts: Under South Carolina law, once a defendant asserts an insanity plea, the verdict form is suppose[d] to convey four (4) possible findings by petit jurors. In the instant case at bar, the court submitted only three (3) possible jury findings. Two of which favored the State, resulting in a 66% chan[c]e of conviction, and only a 33% chance of a verdict based on the evidence introduced at trial. Whereas, counsel failed to object.
Ground Two:Ineffective Assistance of Counsel, in violation of Petitioner's Sixth Amendment rights, by failing to obtain “expert witness” involving Petitioner's mental state.
Ground Three: Ineffective Assistance of Counsel, in violation of Petitioner's Sixth and Fourteenth Amendment rights, where counsel failed to object to the court's Malice instructions to jurors.

[ECF No. 1 at 5-8].

         B. Standard for Summary Judgment

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.

         The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).

         C. Habeas Corpus Standard of Review

         1. Generally

         Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         2. Procedural Bar

         Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[, ]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner ...


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