Battle v. Bodison

Filing 46

ORDER RULING ON REPORT AND RECOMMENDATIONS. The Court accepts the recommendation of the Magistrate. Accordingly, the respondent's motion for summary judgment 21 is granted, this action is dismissed with prejudice, and the petitioner's remaining motions are denied. Signed by Honorable Joseph F Anderson, Jr on 8/31/2010. (mcot, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

E rn e s t Battle, #165247,

) ) P e t i t io n e r , ) v. ) ) W a rd e n M. Bodison, Lieber Correctional ) In s titu tio n , ) ) R e sp o n d e n t. ) ______________________________________ )

C /A No.: 1:09-2038-JFA-SVH

ORDER

P e titio n e r Ernest Battle, a state prisoner proceeding without assistance of counsel, s e e k s habeas corpus relief under 28 U.S.C.§ 2254. T h e Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n (ECF No. 34) and opines that Respondent's motion for summary judgment2 s h o u ld be granted, and Petitioner's motion for declaratory judgment for bail should be d en ied. The Report sets forth in detail the relevant facts and standards of law on this matter, a n d the court incorporates such without a recitation and without a hearing. T h e petitioner was advised of his right to file objections to the Report and

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner of the summary dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment. Petitioner responded to the motion.
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1

R e c o m m e n d a tio n dated August 2, 2010. The court granted Petitioner's request for an e x te n sio n of time to file objections. Petitioner filed objections on August 26, 2010 (ECF No. 4 3 .) For the reasons that follow, the court accepts and adopts the Report and overrules the o b je c tio n s . I. F a c tu a l and Procedural Background T h e Report recites the factual and procedural background giving rise to this action. In brief, the petitioner is an inmate at the South Carolina Department of Corrections serving a twenty-five year sentence after being convicted on June 4, 2001 for trafficking cocaine and p o s s e s s io n with intent to distribute. Petitioner filed a timely notice of appeal in the South Carolina Court of Appeals and ra ise d the following grounds in his pro se brief: I. D id the trial court err when it failed to grant directed verdict when the State f a ile d to prove an essential element of the offense? D id the trial court err when it failed to charge the jury on constructive p o s s e ss io n ? D id the trial court err when it failed to give a proper mere presence charge? D id the trial court err when it failed to instruct the jury that prosecution must p ro v e beyond reasonable doubt every element of the offense charged? D id the trial court err when it failed to direct a verdict of acquittal when the ju ry stated they did not believe what was claimed by the prosecution happened, th u s constituting doubt? D id the trial judge err when he failed to reveal to the jury that appellant was a c q u i tt e d of the conspiracy charge and thus allowing them to consider a p p e lla nt's guilt of conspiracy during their deliberation without giving curative 2

II.

III. IV .

V.

V I.

in s tr u c tio n s ? V II. D id the trial court err when it admitted over objection cocaine into evidence w h e n the State failed to prove a chain of custody?

V III. D id the trial court err when it failed to conduct a Jackson v. Denno hearing req u ested by appellant to determine the voluntariness of codefendant's sta tem e n t? IX . D id the trial court err when it lacked subject matter jurisdiction because of a f f ia n t's false affidavit and false testimony before the State's grand jury?

T h e South Carolina Court of Appeals dismissed his appeal pursuant to Anders v. C a lifo rn ia, 386 U.S. 738 (1967) and State v. Williams, 406 S.E.2d 357 (S.C. 1991), and it g r a n t e d appellate counsel's request to be relieved. The Court of Appeals subsequently d e n ie d Petitioner's pro se petition for a rehearing. Petitioner then filed a pro se petition for a writ of certiorari and a motion for judgment on the pleadings in the South Carolina S u p r e m e Court, which denied both. P e titio n e r filed a post-conviction relief ("PCR") application, and a hearing was held o n May 30, 2006. The Honorable William P. Keesley granted the PCR solely on the issue o f trial counsel's failure to object to the jury instructions on reasonable doubt and c irc u m s ta n tia l evidence, and he denied the rest of the claims. Petitioner did not appeal the d e n ial of his other PCR claims, but the State appealed the granting of the PCR. The South C a ro lin a Supreme Court reversed the granting of the PCR on April 13, 2009. Battle v. State, 6 7 5 S.E.2d 736 (S.C. 2009).

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II.

P e titio n e r 's Grounds for Relief T h e present habeas petition was filed in this Court on August 3, 2009. The petitioner

ra is e d verbatim the following grounds for relief in his Section 2254 petition: (1 ) C o n v ic tio n was obtained by use of evidence obtained pursuant to an illegal a rre st. Supporting Facts: Petitioner committed no crime. Petitioner was not a c tin g unlawful nor did petitioner possessed any contraband narcotics or m a rk e d monies. Petitioner did not have any physical contact or conversation w ith alleged co-defendant, Lashawn Floyd. Drugs were introduce and accepted in to evidence absent objection or motion to suppress from defense counsel. F o u r te e n th Amendment Due Process violation to the U.S. Constitution. S u p p o r tin g Facts: The PCR judge found defense counsel ineffective in failing to object to the erroneous circumstantial evidence charge which violated the d u e process clause or the 14th Amendment by diluting the State's burden of p ro o f beyond a reasonable doubt. Subsequently, the PCR judge violated the p e titio n e r's due process rights by altering and amending the initial order c h a n g in g the scope of the judgement after its was written and entered. In s u f f ic ie n t Evidence. Supporting Facts: Petitioner did not possess any m a rk e d money/possess no drugs or contraband and no physical contact with a lle g e d co-defendant Lashawn Floyd, did not constructive possession or d o m in io n or control or right to exercise dominion or control over drugs found in "Floyd's" actual possession. No rational trier of fact could have found the e ss e n tial element of possession which State must prove beyond a reasonable d o u b t to sustain a conviction for trafficking in cocaine under South Carolina la w . C o n v ic tio n obtained by a violation of the protection against double jeopardy. S u p p o r tin g Facts: Prosecutor opened and closed before jury charging c o n sp ira c y. Petitioner was granted a directed verdict of not guilty on co n sp irac y charge. At the state's request, the trial judge refused to tell the jury th a t they could no longer consider petitioner's guilt on conspiracy charge d u rin g their deliberation. Trial judge then re-charged the jury on trafficking in c o c ain e which incorporates the conspiracy element and failed to give curative in s tru c tio n . Trial judge then told jury if they had any questions as to what the s ta te charged read the indictments.

(2 )

(3 )

(4 )

4

(5 )

In e f fe c tiv e assistance of counsel. Supporting Facts: Trial counsel was in ef fe ctiv e by failing to object to numerous claims outlined in petitioner's p o s t-c o n v ic tio n application. Counsel's failure to protect petitioner's right v io la te d his Sixth and Fourteenth Amendment Rights to the U.S. Constitution, th u s denying him effective assistance of counsel and a denial of Due Process g u a ra n te e d by the U.S. Constitution. Petitioner was granted post-conviction re lie f on this ground. In e f fe c tiv e assistance of PCR counsel and Appellate counsel. Supporting F a c ts : PCR counsel and appellate counsel was ineffective by refusing and f a ilin g petitioner's request to file cross-appeal on claims ruled on and denied b y PCR judge in petitioner's original PCR Application, thus denying him a p p e lla te of those claims. PCR counsel and appellate counsel's failure denied p e titio n e r Sixth Amendment right to effective assistance of counsel and a d e n ia l of Due Process guaranteed the U.S. Constitution. S u b s ta n tia l and procedural due process violation committed by PCR judge. S u p p o r tin g Facts: The PCR judge erred where he submitted written Order on J u n e 1, 2006 granting relief on four (4) separate claims of ineffective a ss is ta n c e trial counsel. Once PCR counsel prepared proposed order reflecting re lie f on those claims, the Court rejected the Order. Counsel was then advised b y the Court to re-submit another proposed order denying relief on claims that w e r e initially granted in the Court's initial written order filed with the Clerk o f Court. The PCR judge erred by changing the scope of the judgment once w ritte n and due process rights to the U.S. Constitution. T h e trial court lacked subject matter jurisdiction. Supporting Facts: There was n o presentment of petitioner's indictments to the grand jury, petitioner did not w aiv e presentment, nor was the indictment lesser included offense. Petitioner's in d ic tm e n t alleged that the Charleston County Grand Jury convened on N o v e m b e r 1, 1999 and returned a true bill on November 2, 1999. Petitioner a c q u ir e d a copy of the Charleston County Grand Jury summary report for those d a tes and petitioner's name nor indictment numbers appear in the report, h o w e v e r, the report does indicate a defendant by the name of Randle Baily In d ictm en t No. GS-10-1999-7108, petitioner's indictment numbers are G S - 1 0 -1 9 9 9 -7 1 0 9 , 7110 and 7111. T h e South Carolina Supreme Court lacked subject matter jurisdiction to en tertain State's improperly filed Notice of Intent to Appeal PCR Judge's O rd e r granting relief. Supporting Facts: The State waited until the last day to 5

(6 )

(7 )

(8)

(9 )

f ile Notice of Appeal of PCR Order granting relief. When the State submitted th e ir notice of appeal and proof of service to the Court and copy to PCR c o u n se l, the filing had the wrong PCR Number on it. When petitioner brought th is to the Court's attention, 2 weeks later, he was advise, via letter that the S ta te 's initial filing contained a clerical error and was corrected on the day of f ilin g . However, the Rule of Court specifically states that during the pendency o f an appeal, leave from the Appellate Court must be obtained to correct the m is ta k e . The State failed to obtain leave, but covered the wrong PCR docket n u m b e r in the initial filing, ran off a copy then typed in petitioner's PCR d o c k e t number, and refiled notice of intent to appeal with the Court. Petitioner h a s two different notice of intent to appeal and two different proofs of service f ile d by the State. III. L e g a l Standard Summary judgment is appropriate only "if the pleadings, depositions, answers to interrog ato ries, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment a s a matter of law." Fed. R. Civ. P. 56(c). Rule 56(c) mandates entry of summary judgment " a g ain s t a party who fails to make a showing sufficient to establish the existence of an e l e m e n t essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). I n deciding whether there is a genuine issue of material fact, the evidence of the n o n -m o v in g party is to be believed and all justifiable inferences must be drawn in favor of t h e non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255(1986). H o w e v e r, "[o]nly disputes over facts that might affect the outcome of the suit under the g o v e rn in g law will properly preclude the entry of summary judgment. Factual disputes that a re irrelevant or unnecessary will not be counted." Id. at 248. T h e moving party has the burden of proving that summary judgment is appropriate. 6

O n c e the moving party makes this showing, however, the opposing party may not rest upon m e re allegations or denials, but rather must, by affidavits or other means permitted by the R u le , set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P . 56(e). Further, while the federal court is charged with liberally construing a complaint filed b y a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v . Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the c o u rt can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, n o r can the court assume the existence of a genuine issue of material fact where none exists. W e lle r v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). IV. H a b e a s Corpus Standard of Review Because Petitioner filed his petition after the effective date of the Antiterrorism and E f f ec tiv e Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U .S .C . § 2254(d), as amended. A n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was a d ju d ic a te d on the merits in State court proceedings unless the adjudication of the claim (1) re su lted in a decision that was contrary to, or involved an unreasonable application of, clearly e sta b lis h e d Federal law, as determined by the Supreme Court of the United States; or (2) re su lte d in a decision that was based on an unreasonable determination of the facts in light

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o f the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, a determination of a factual issue made b y a state court shall be presumed to be correct. The applicant shall have the burden of re b u ttin g the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). S e c tio n 2254 requires an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted unless it appears that th e applicant has exhausted the remedies available in the courts of the state. 28 U.S.C. § 2 2 5 4 ( b )(1 )-(A ) . The Fourth Circuit has held that in order "[t]o satisfy the exhaustion re q u ire m e n t, a habeas petitioner must fairly present his claim to the state's highest court." M a tth e w s v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); O'Sullivan v. Boerckel, 526 U.S. 838, 8 4 8 (1999). T h e exhaustion requirement under § 2254 may still be satisfied where petitioner failed to squarely present the issue to the highest state court "if it is clear that the claim[s] would b e procedurally defaulted if the petitioner attempted to raise [them] at this juncture." George v . Angelone, 100 F.3d 353, 363 (4th Cir. 1996); see also Coleman v. Thompson, 501 U.S. 7 2 2 , 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 298 (1989); Matthews, 105 F.3d at 911. If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state ru les from returning to state court to raise the issue, he has procedurally bypassed his

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o p p o rtu n ity for relief in the state courts and in federal court. See Matthews at 915. " F e d e ra l habeas review of a state prisoner's claims that are procedurally defaulted u n d e r independent and adequate state procedural rules is barred unless the prisoner can show c a u se for the default and demonstrate actual prejudice as a result of the alleged violation of f e d era l law or prove that failure to consider the claims will result in a fundamental m is c a rria g e of justice." Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008) (quoting M cC arv er v. Lee, 221 F.3d 583, 588 (4th Cir. 2000)). V. A n a ly s is of Petitioner's Grounds A. P r o c e d u r a lly Barred Grounds

T h e Magistrate found that Grounds One, Three, Four, and Five were not properly e x h a u s te d and are, therefore, procedurally barred. Petitioner filed objections to these re c o m m e n d a tio n s , but the Court overrules these objections and agrees with the Magistrate. A b s e n t a showing of cause and actual prejudice or actual innocence, habeas grounds th a t are not fairly presented in state appellate courts are procedurally barred. Petitioner a tte m p te d to show actual innocence in his objection to Ground Three. He claims that L a sh a w n Floyd identified "E" in her statement to police as the person that gave her drugs and t h a t "E" does not properly identify him. However, at Petitioner's trial, Lashawn Floyd te stif ie d that "E" refers to Petitioner. (Trial Tr. 257:1­15, ECF No. 20-21, at 76.) Therefore, G ro u n d Three in addition to Grounds One, Four, and Five are procedurally barred and will n o t be considered on the merits.

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B.

M e r its Analysis

G r o u n d s Two and Seven Ground Two alleges that trial counsel and the PCR judge violated Petitioner's F o u r te e n th Amendment due process rights. Similarly, Petitioner alleges in Ground Seven th a t the PCR judge violated Petitioner's due process rights when he altered the initial PCR o rd e r. The Magistrate found that these claims are without merit because the South Carolina S u p r e m e Court reversed the PCR court's granting of PCR, finding that trial counsel was not i n e f f e c ti v e for failing to object to jury instructions. "The burden of demonstrating that an e rro n e o u s instruction was so prejudicial that it will support a collateral attack on the c o n stitu tio n a l validity of a state court's judgment is even greater than the showing required t o establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). T h e Magistrate found that Petitioner has failed to establish that the jury instructions were e rro n e o u s, and even if they were erroneous, that they were so prejudicial that it affected the o u tc o m e of the entire trial. Petitioner objects, reasserting arguments dealt with in his PCR. A d d itio n a lly, Petitioner's claims concern the manner in which the PCR judge prepared h is order, not Petitioner's underlying conviction. Petitioner objects, claiming that the PCR ju d g e filed a signed order and later filed a replacement order. However, the initial order is little more than a request for a proposed order. While Petitioner is correct that the PCR judge lis te d more reasons for granting the PCR application in the initial order than he later included

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in the final order, alleged infirmities in PCR proceedings do not state a basis for federal h a b e a s relief. See Bryant v. Maryland, 848 F.2d 492, 494 (4th C ir. 1988). The Court agrees with the Magistrate's findings and dismisses Grounds Two and Seven. Ground Six G ro u n d Six alleges ineffective assistance of PCR counsel and appellate counsel b e c au s e they did not appeal the PCR court's denial of claims. The Magistrate found that th e re is no constitutional right to habeas counsel in state collateral proceedings. See Barraza v . Cockrell, 330 F.3d 349, 352 (5th C ir. 2003); Weeks v. Angelone, 176 F.3d 249, 274 (4th Cir. 1999). Petitioner's objection includes a discussion of his alleged right to an evidentiary h e a rin g and his state habeas corpus petitions. The Court agrees with the Magistrate that this c la im fails. Ground Eight G ro u n d Eight is a claim that the trial court did not have subject matter jurisdiction b e c au s e the charges were not presented to the grand jury, Petitioner did not waive p re se n tm e n t, nor was the indictment for a lesser-included offense. The Magistrate

r e c o m m en d s that this ground be dismissed because the record shows that Petitioner's in d ic tm e n t was true-billed, and Petitioner acknowledged that fact at his PCR hearing. P e titio n e r did not file an objection on this ground. The Court accepts the recommendation o f the Magistrate and dismisses Ground Eight.

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G r o u n d Nine I n Ground Nine, Petitioner claims that the South Carolina Supreme Court lacked s u b je c t matter jurisdiction to hear the State's appeal from the PCR order because the Notice o f Intent to Appeal included the wrong PCR number. The Magistrate found that this ground s h o u ld be dismissed because challenges to alleged defects in state collateral proceedings do n o t have a basis for federal habeas relief. Petitioner's objection consists of an elaboration o f facts that he has already alleged in his petition. The Court accepts the Magistrate's re c o m m e n d a tio n and dismisses Ground Nine. VI. R e m a in in g Motions P e titio n e r has also filed a motion for declaratory judgment for bail (ECF No. 31), a m o tio n to appoint habeas counsel (ECF No. 42), and a motion for an evidentiary hearing ( E C F No. 45). The Court accepts the recommendation of the Magistrate and denies the m o tio n for declaratory judgment for bail. The Court has determined that an evidentiary h e a rin g would not aid in the decisional process. The motion for a hearing is, therefore, d e n ie d . Because no hearing is required, the motion for counsel is also denied. VII. C o n c lu s io n A c c o rd in g ly, the respondent's motion for summary judgment is granted, this action is dismissed with prejudice, and the petitioner's remaining motions are denied. On December 1, 2009, the Rules governing Section 2254 and 2255 cases in the U n ite d States District Courts were amended to require that the district court issue or deny a

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c e rtif ic a te of appealability when a final ruling on a habeas petition is issued. See Rule 11(a) o f the Rules governing 28 U.S.C. § 2254 and 2255. The court has reviewed its order and p u rs u a n t to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 cases, declines to issue a certificate of appealability as petitioner has not made a substantial showing of a d e n ia l of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 3 3 6 ­ 3 8 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable ju ris ts would find the district court's assessment of the constitutional claims debatable or w r o n g ) ( c i ti n g Slack v. McDaniel, 529 U.S. 473, 484 (2000)). IT IS SO ORDERED.

A u g u s t 31, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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