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Kinlaw v. Warden of Ridgeland

United States District Court, D. South Carolina

October 28, 2019

Henry Lee Kinlaw, Petitioner,
v.
Warden of Ridgeland, Respondent.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges Columbia, United States Magistrate Judge.

         Henry Lee Kinlaw (“Petitioner”) is an inmate at the Ridgeland 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 Respondents' return and motion for summary judgment. [ECF Nos. 11, 12]. 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 September 30, 2019. [ECF No. 13]. Petitioner filed a timely response. [ECF No. 15]. Respondent did not 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

         In May 2012, the Horry County Grand Jury indicted Petitioner for trafficking cocaine base, distribution of cocaine base, and trafficking cocaine. [ECF No. 11-1 at 398-403]. Russell B. Long, Esq., represented Petitioner on the charges. Id. at 3. On November 3, 2014, after jury selection and pretrial motions, Petitioner pled guilty to all three charges before the Honorable John C. Hayes, Circuit Court Judge. See Id. at 69-76. Judge Hayes sentenced Petitioner to fifteen years' imprisonment on each charge, to run concurrently. Id. at 79-80. Petitioner did not appeal his conviction or sentence. [ECF No. 1 at 2-3].

         On May 19, 2015, Petitioner filed his first pro se application for post-conviction relief (“PCR”). Id. at 83-128. Thereafter, Petitioner filed two amendments to his application and supplemental exhibits. Id. at 129-254. Petitioner's filings alleged his plea counsel was ineffective and his guilty plea was involuntary due to counsel's failure to: (1) move to dismiss his charges because the search warrant and accompanying affidavit did not support a finding of probable cause; (2) argue for suppression of evidence because the search warrant and subsequent search violated South Carolina Constitution Article I § 10 and the Fourth Amendment; (3) advise him of the plea offer's expiration date; (4) thoroughly investigate and conduct discovery; (5) file a direct appeal; (6) challenge the chain of custody; and (7) challenge the officers' use of a drug-sniffing dog. See id.

         The State filed a return on February 18, 2015. Id. at 255. The Honorable Roger E. Henderson, Circuit Court Judge, held an evidentiary hearing on May 24, 2017, at which Petitioner was represented by Steven W. Fowler, Esq., and Petitioner and plea counsel testified. Id. at 262-358.

         On August 10, 2017, the PCR Court denied and dismissed Petitioner's application, construing his claims as:

         1. Ineffective assistance of counsel, in that:

         a. Counsel failed to adequately prepare to argue his motion to suppress the search warrant;

i. “Failure to investigate, prepare for and motion to dismiss charges of distribution of crack cocaine; trafficking in crack-cocaine 28-100 grams; and trafficking cocaine 28-100 grams because arrest warrant and affidavit in support of was not supported by probable cause.”
ii. “Arrest warrant was invalid and counsel should have objected to and motioned to dismiss warrant because of its invalidity.”
iii. “Counsel was ineffective during his presentation regarding the suppression hearing. Counsel failed to investigate adequately prepare and thoroughly argue the suppression of the drug evidence.”
iv. “Plea counsel's representation fell below an objective standard of reasonableness and prejudiced Kinlaw.”
b. Counsel failed to communicate a plea offer of five years;
i. “Defense counsel advised Kinlaw that the State would allow him to plead guilty to all charges for a five (5) year total sentence. Counsel did not inform Kinlaw when the plea offer expired.”
ii. “Plea counsel's performance was deficient as it fell below ‘an objective standard of reasonableness' when plea counsel failed to inform Kinlaw when the State's plea offer would expire.”
c. Counsel failed to investigate the confidential informant;
i. “Failure to investigate the confidential driver, failed to do a supplemental Brady/Rule 5 motion, when five (5) days prior to trial, the State released the name of the confidential driver to counsel.”
ii. “Failure to obtain confidential driver's criminal history and any and all information concerning his being a potential confidential informant and, if so, his credibility and reliability.”
d. Counsel failed to investigate the traffic stop leading to the arrest of the individual who departed from the hotel searched;
i. “Counsel failed to obtain any and all surveillance videos and audio recordings and any video(s) of the traffic stop of the driver; and”
ii. “Counsel failed to obtain any agreement for driver for his/her cooperation and agreement to testify against Kinlaw.”
e. “Counsel did not advise me that I had a meritorious State and Federal Constitutional claim and that if I went on to trial, that I could challenge the trial judge's denial of suppression motion.”
f. “Failure to file direct appeal.”
i. “Instructed counsel to file an appeal. Counsel did not file direct appeal.”
ii. “Failed to file an appeal or notice of intent to appeal the convictions and sentences in order to protect Kinlaw constitutional rights, therefore plea counsel was constitutionally ineffective and as a result Kinlaw was denied his only appeal as matter of right.”
2. Involuntary Guilty Plea
a. “Counsel coerce Kinlaw to enter a plea of guilty.”
b. “Counsel's inaccurate advice and failure to thoroughly prepare for trial led to Kinlaw's guilty plea.”
c. “Counsel advice to plead guilty was deficient, because Kinlaw had a valid legal challenge to the denial of the suppression motion on direct appeal.”
d. “Kinlaw plead guilty because of deficient advice and lack of an alternative, and he did not do so voluntarily or knowingly.”

Id. at 363-64 (errors in original).

         Appellate Defender Robert M. Pachak, Esq., timely appealed through a Johnson[1] petition for a writ of certiorari asking “[w]hether plea counsel was ineffective in failing to communicate to petitioner when a 5 year plea offer would expire.” [ECF No. 11-2 at 3]. Petitioner filed a pro se response raising the following issues:

1. Whether plea counsel was ineffective in failing to investigate, failing to discover and failing to raise on a motion to suppress at the suppression hearing that petitioner arrest was an illegal arrest in violation of the 4th amendment of the U.S. Const. because arrest warrant M-971717 “Distribution of Crack Cocaine” and underlying affidavit in support of arrest warrant lacked probable cause?
2. Whether plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the arrest warrant M-971717 “Distribution of Crack Cocaine” because his arrest was an illegal arrest in violation of the 4th amendment of the U.S. Constitution because arrest warrant and underlying affidavit in support of arrest warrant lacked probable cause?
3. Whether plea counsel was ineffective in failing to adequately prepare, thoroughly argue the suppression of the drug evidence discovered as a result of the search warrant because plea counsel failed to discover and raise on a motion to suppress at the suppression hearing that the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant underlying affidavit set forth no facts as to why D.E.U. officers believed Petitioner committed the crime alleged in the search warrant affidavit Distribution of Crack Cocaine on Feb. 28, 2012, the crime Petitioner was arrested for on Feb. 29, 2012?
4. Whether plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the search warrant because the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because the search warrant underlying affidavit set forth no facts as to why D.E.U. officers believed petitioner committed the crime alleged in the search warrant affidavit “Distribution of Crack Cocaine” on Feb. 28, 2012 the crime petitioner was arrested for on Feb. 29, 2012?
5. Whether plea counsel was ineffective in failing to adequately prepare, thoroughly argue the suppression of the drug evidence discovered as a result of the search warrant because plea counsel failed to discover and raise on a motion to suppress at the suppression hearing that the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because the search warrant underlying affidavit does not contain any information to allow the magistrate to make an independent determination of the K-9 Jari's reliability to establish probable cause based on the alert?
6. Whether plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the search warrant because the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because the search warrant underlying affidavit does not contain any information to allow the magistrate to make an independent determination of the K-9 Jari's reliability to establish probable cause based on the alert?
7. Whether plea counsel was ineffective in failing to adequately prepare, thoroughly argue the suppression of the drug evidence discovered as a result of the search warrant because plea counsel failed to discover and raise on a motion to suppress at the suppression hearing that the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because in the search warrant underlying affidavit there was no independent verification of what transpired within the hotel on Feb. 28, 2012 during the officers surveillance and the day the unreliable confidential informant was arrested with .9 grams of crack-cocaine some miles away from the hotel?

[ECF No. 11-3 at 6-13 (errors in original)]. The Supreme Court of South Carolina denied the petition for a writ of certiorari on January 25, and issued the remittitur on February 4, 2019. [ECF Nos. 11-4, 11-5].

         II. Discussion

         A. Federal Habeas Issues

         Petitioner raises the following grounds in his federal petition for a writ of habeas corpus:

Ground One:Involuntary Guilty Plea/Ineffective Assistance of Counsel because petitioner's guilty plea was not voluntary, knowingly or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to raise on a motion to suppress at the suppression hearing that petitioner's arrest was an illegal arrest in violation of the 4th amendment of the U.S. Constitution because arrest warrant M-917717 Distribution of Crack Cocaine and underlying affidavit in support of arrest warrant lacked probable cause.
Supporting Facts: Reviewing the underlying affidavit of arrest warrant M-971717 in Petitioner's case within the parameters set forth by U.S. Supreme Court precedents concerning Fourth Amendment probable cause requirements, it is undisputed the underlying affidavit is insufficient to provide the magistrate judge with a substantial bases for which to find probable cause to issue the arrest warrant based on the following facial defects:
1. The warrant is defective on its face because it does not set forth any facts to allow a magistrate to make an independent determination that there is probable cause to believe that a crime has been committed.
2. The warrant is defective on its face because it does not set forth any facts to allow a magistrate to make an independent determination that there is probable cause to believe that person to be arrested committed the crime.
3. The warrant is defective on its face because it does not set forth the source of the allegations in it.
4. The warrant is defective on its face because it does not set forth facts to establish that the source of the information in the affidavit is reliable.
5. The warrant is defective on its face because it does not set forth facts that the allegations in the affidavit were independently verified by D.E.U. officers or by the affiant Phillips.
Ground Two:Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner guilty plea was not voluntary, knowingly o[r] intelligently entered as result of being denied the effective assistance of counsel and due process of law [in] violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the arrest warrant M-971717 “Distribution of Crack Cocaine” because his arrest was an illegal arrest in violation of the 4th amendment of the U.S. Constitution
Ground Three: Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to discover an raise on a motion to suppress at the suppression hearing that the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant underlying affidavit set forth no facts as to why D.E.U. officers believed petitioner committed the crime alleged in the search warrant affidavit “Distribution of Crack Cocaine” on February 28, 2012 the crime petitioner was arrested for on February 29, 2012.
Ground Four: Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly, or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the search warrant because the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant underlying affidavit set forth no facts as to why D.E.U. officers believed petitioner committed the crime alleged in the search warrant affidavit “Distribution of Crack Cocaine” on February 28, 2012 the crime petitioner was arrested for on February 29, Ground Five: Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly o[r] intelligently entered as [a] result of being denied the effective assistance of counsel and due process of law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution for a lack of probable cause specifically because the search warrant underlying affidavit does not contain any information to allow the magistrate to make an independent determination of the K-9 Jari's reliability to establish probable cause based on the alert.
Ground Six:Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to inform petitioner that he had a valid legal challenge to the search warrant because the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because the search warrant underlying affidavit does not contain any information to allow the magistrate to make an independent determination of the K-9 Jari's reliability to establish probable cause based on the alert.
Ground Seven: Involuntary Guilty Plea/Ineffective assistance of counsel because petitioner['s] guilty plea was not voluntarily, knowingly, or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel was ineffective in failing to adequately prepare, thoroughly argue the suppression of the drug evidence discovered as [a] result of the search warrant because plea counsel failed to discover and raise on a motion to suppress at the suppression hearing that the search warrant was invalid under the 4th amendment of the U.S. Constitution for a lack of probable cause specifically because the search warrant is defective on its face because in the search warrant underlying affidavit there was no independent verification of what transpired within the hotel on February 28, 2012 during the officers surveillance and day the unreliable confidential informant was arrested with .9 grams of crack-cocaine some miles away from the hotel.
Ground Eight: Involuntary Guilty Plea/Ineffective assistance of counsel because the petitioner['s] guilty plea was not voluntarily, knowingly, or intelligently entered as a result of being denied the effective assistance of counsel and Due Process of Law in violation of his rights guaranteed by the 6th and 14th amendments of the U.S. Constitution because plea counsel failed to discover and raise on a motion to suppress at the suppression heaing that the search warrant was invalid under Article I [ยง] 10 of the South Carolina Constitution and the 4th amendment of [the] U.S. Constitution because the search ...

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