Wiley v. Wilson et al
Filing
66
ORDER denying the Petitioner's 63 Rule 59(e) Motion. Signed by Honorable J. Michelle Childs on 9/1/2017. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCKHILL DIVISION
Karreem Tislam Jabar Wiley,
Petitioner,
v.
Warden Larry Cartledge,
Respondent.
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Civil Action No.: 0:15-cv-02262-JMC
ORDER
This matter is before the court on Petitioner Karreem Tislam Jabar Wiley’s (“Petitioner”)
pro se “Rule 59 (e) Motion” (“Motion”) concerning the court’s denial of his Petition for a Writ of
Habeas Corpus (“Petition”), pursuant to 28 U.S.C. § 2254. (ECF No. 60.) On July 19, 2016,
Magistrate Judge Paige J. Gossett issued a Report and Recommendation (“Report”) requesting that
the court grant Respondent’s Motion for Summary Judgment and deny the Petition because
Petitioner failed to demonstrate that he exhausted available administrative remedies in the State of
South Carolina (“State”). (ECF No. 45.) Petitioner filed an objection (“Objections”) to the Report,
but the court adopted the Magistrate Judge’s recommendation and denied his Petition. The court
did not issue a certificate of appealability when it denied the Petition.
I.
RELEVANT PROCEDURAL AND FACTUAL BACKGROUND
On December 12, 2007, Petitioner was indicted for trafficking in cocaine more than one
hundred grams, third offense in the State. (ECF No. 30-1 at 355-56.) Petitioner, represented by
Tivis Colley Sutherland, IV, Esquire, was found guilty for this charge on March 21, 2008. (ECF
No. 30-1 at 3.) The Honorable J. Mark Hayes, II sentenced Petitioner to twenty-five years’
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imprisonment. (ECF No. 30-1 at 286-87.) Petitioner filed an appeal of his conviction in the South
Carolina Court of Appeals and was represented by Lanelle C. Durant, Esquire, of the South
Carolina Commission on Indigent Defense. (ECF No. 30-1 at 289-96.) On March 31, 2010, the
Court of Appeals affirmed Petitioner’s conviction and sentence. (ECF No. 30-1 at 289-96.) The
Court of Appeals issued a remittitur on April 16, 2010. (ECF No. 30-1 at 297.) On October 4,
2010, Petitioner filed a pro se Application for Post-Conviction Relief (“PCR”). (ECF No. 30-1 at
298.) On November 14, 2011, Charles T. Brooks, III, Esquire represented Petitioner during an
evidentiary hearing at the PCR court. On February 24, 2012, the PCR court denied and dismissed
Petitioner’s PCR application with prejudice. (ECF No. 30-1 at 421-31.) On March 8, 2013,
Petitioner, represented by Tara Dawn Shurling, Esquire, filed a petition for a writ of certiorari in
the Supreme Court of South Carolina. (ECF No. 30-6.) On December 11, 2014, the South Carolina
Court of Appeals issued an order denying Petitioner’s petition for a writ of certiorari. (ECF No.
30-9.) The remittitur was issued on January 5, 2015. (ECF No. 30-10.) On June 4, 2015, Petitioner
filed a habeas corpus petition in this court. (ECF No. 1.)
II.
LEGAL STANDARD
Pursuant to Fed. R. Civ. P. 59(e), a motion for reconsideration may only be granted if (1)
there is a need to correct a manifest error in law or fact; (2) the movant uncovered new evidence
that was reasonably unknown prior to entry of the judgment or order in question; or (3) an
intervening change in controlling law occurred. Robinson v. Wix Filtration Corp., 599 F.3d 403,
407 (4th Cir. 2010). However, Rule 59(e) motions cannot be used as opportunities to rehash issues
already ruled upon because the litigant is displeased with the result. Hutchinson v. Staton, 994
F.2d 1076, 1082 (4th Cir. 1993) (“[M]ere disagreement does not support a Rule 59(e) motion.”);
Consulting Eng’rs, Inc. v. Geometric Software Solutions & Structure Works L.L.C., 2007 WL
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2021901 (E.D. Va. July 6, 2007) (“A party’s mere disagreement with the court’s ruling does not
warrant a Rule 59(e) motion, and such motion should not be used to ‘rehash’ arguments previously
presented or to submit evidence which should have been previously submitted.”)
III.
DISCUSSION
Petitioner asserts the same requests in his previous habeas corpus petition, which was
denied by this court including (1) ineffective assistance of trial counsel (“IAC”) and (2)
prosecutorial misconduct. (ECF No. 63 at 16-18.) By way of reasserting these allegations,
Petitioner takes the position in this Motion that these claims violated his constitutional rights. The
court will address Petitioner’s claims below.
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner contends that his PCR, trial, and appellant counsel were ineffective because they
failed to conduct a reasonable investigation of his case and interview a key witness. Petitioner
states that the court’s Order and the Magistrate Judge’s Report determined that his IAC arguments
were procedurally barred because he failed to file a Rule 59(e) motion after the PCR court declined
to discuss this matter in its order. (ECF No. 63 at 5.) Thus, Petitioner’s IAC claims were not
preserved for appellate review in the State court and was procedurally barred under a habeas corpus
petition. (Id.) Petitioner maintains that his PCR counsel provided ineffective assistance of counsel
by failing to file the requested Rule 59(e) motion. (ECF No. 63 at 2.) Petitioner argues that
Exhibits A and B in his Objections indicate that he filed a Rule 59(e) motion in the State court, but
his PCR counsel disregarded this request and instead filed a Notice of Appeal. (Id.)
Furthermore, Petitioner asserts that his PCR counsel failed to prepare his case fully, conduct a
reasonable investigation, prepare a crucial witness for trial, and subpoena a witness to testify at his
PCR hearing. (ECF No. 63 at 3.) Petitioner next asserts that his PCR appellant counsel failed to
conduct a reasonable investigation of a key witness. (Id. at 9.) Additionally, Petitioner claims that
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a “confidential informant” was involved in his criminal case, but his trial counsel failed to
investigate this individual. (Id. at 11.) To establish ineffective assistance of counsel under the twoprong test in Strickland v. Washington, 466 U.S. 668, 687-88 (1984), a defendant must establish
that (1) “counsel's performance fell below an objective standard of reasonableness,” and (2) “a
reasonable probability exists that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. “A defendant's failure to establish either prong of the
Strickland test precludes a finding of ineffective assistance of counsel.” Id. In addition, Petitioner
must demonstrate that his counsel's assistance was deficient and that the deficiency prejudiced his
defense. Id. at 687.
The court finds the issues that Petitioner contends that his PCR counsel should have raised
in a Rule 59(e) motion contain matters that were already before the PCR court including alleged
counsel’s failure to interview a key witness. As the PCR court was aware of these matters during
his PCR hearing, Petitioner was not prejudiced by counsel's failure to argue the same facts in a
Rule 59(e) motion. The court finds that Petitioner has not presented any argument warranting
reconsideration, and has not cited any recent change in the controlling law, any newly discovered
evidence, or any error in law that would support his ineffectiveness of counsel claim.
B. PROSECUTORIAL MISCONDUCT
Petitioner argues that the State refused to provide crucial evidence to his trial defense
counsel, which resulted in selective and vindictive prosecution. Petitioner claims that the State
failed or refused to provide him Brady materials. (ECF No. 63 at 11-15.) In addition, the trial
prosecutor did not reveal the identity of an undercover civilian or police agent or provide requested
police reports, which denied him due process of law. (Id. at 11-14.) Consequently, Petitioner
claims the State violated his due process rights and the Brady violations resulted in the
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procurement of a fraudulent indictment, which deprived him an affirmative defense of entrapment.
(Id. at 16.)
Brady requires the government to disclose to the defense evidence which is favorable to an
accused, where the evidence is material either to guilt or to punishment. Brady v. Maryland, 373
U.S. 83, 87 (1963). A prosecution designed solely to punish a defendant for exercising a valid
legal right violates due process. Blackledge v. Perry, 417 U.S. 21, 25-26 (1974). Defendant must
show that the prosecution was initiated in order to punish the defendant for the exercise of a legal
right. Id. To establish actual vindictiveness, a defendant must show, “through objective evidence
that (1) the prosecutor acted with genuine animus toward the defendant and; (2) the defendant
would not have been prosecuted but for that animus.” United States v. Jackson, 327 F.3d 273, 294
(4th Cir. 2003). If the defendant cannot prove an improper motive with direct evidence, he or she
may present evidence of circumstances from which an improper vindictive motive may be
presumed. Id.
As to Petitioner’s claim for selective prosecution, the Government has broad discretion in
determining who to prosecute. Wayte v. United States, 470 U.S. 598, 607 (1985). The discretion
is, of course, “subject to constitutional constraint.” Wayte, 470 U.S. at 608. The decision to
prosecute may not be based on “unjustifiable” factors such as race, religion, or another arbitrary
classification. United States v. Armstrong, 517 U.S. 456, 464-65 (1996). However, absent a
substantial showing to the contrary, prosecutions will be presumed to be motivated only by proper
considerations. United States v. Hastings, 126 F.3d 310, 313 (4th Cir. 1997). To overcome the
presumption of regularity in a selective prosecution claim, a defendant “must demonstrate that the
federal prosecution policy had a discriminatory effect and that it was motivated by a discriminatory
purpose.” Armstrong, 517 U.S. at 465.
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The court finds that Petitioner’s claims are similar to the Brady and prosecutorial
misconduct issues raised in Petitioner’s original § 2255 Petition, including the discrepancy
between evidence held by the trial prosecutor and his defense counsel. The court construes
Petitioner’s claims of prosecutorial misconduct during his criminal trial and Brady violations as
already being addressed by the court in his Petition. The court finds that these matters constitute
second or successive § 2254 claims because Petitioner asserts similar bases for relief concerning
his State criminal conviction. The court will not authorize Petitioner, who failed to obtain relief in
his Petition, to attempt to bring a new habeas claims by way of Rule 59 (e) Motion. For the
foregoing reasons, the court finds no reason to reconsider its decision to deny Petitioner’s Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
Accordingly, Petitioner’s “Rule 59 (e) Motion” (ECF No. 63) of the court’s Order (ECF
No. 60) adopting the Magistrate Judge’s Report and Recommendation is DENIED.
IT IS SO ORDERED.
United States District Judge
September 1, 2017
Columbia, South Carolina
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