Evans v. Warden BRCI et al

Filing 40

ORDER and OPINION ADOPTING 30 THE REPORT AND RECOMMENDATION. It is ordered that the Petition is dismissed with prejudice. Signed by Honorable J Michelle Childs on 10/17/2013. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Timothy Lewis Evans,

)
)
Petitioner,
)
)
v.
)
)
Warden BRCI,
)
)
Respondent.
)
____________________________________)

Civil Action No. 3:10-cv-2569-JMC

ORDER AND OPINION

This matter is before the court for review of the Magistrate Judge’s Report and
Recommendation (“Report”), (ECF No. 30), filed November 4, 2011, recommending that
Respondent Warden BRCI’s (“Respondent”) Motion for Summary Judgment (ECF No. 19) be
granted and that Petitioner Timothy Lewis Evans’s (“Petitioner”) Petition for a Writ of Habeas
Corpus (“Petition”) (ECF No. 1) pursuant to 28 U.S.C. § 2254 be denied. This review considers
Petitioner’s pro se Objections to the Report (“Objections”), (ECF No. 35), filed December 1,
2011.1 For the reasons set forth herein, the court ACCEPTS the Magistrate Judge’s Report and
DISMISSES Petitioner’s Petition with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
On May 2, 2003, the York County Multijurisdictional Drug Enforcement Unit conducted
a search of Petitioner’s home pursuant to a search warrant. (ECF No. 39 at 38, 81). At the time
of the search, Evans was present along with his mother, other family members (including
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On November 28, 2011, having received no objections from Petitioner, the court issued an
order adopting the Report and dismissing this action without prejudice. (ECF Nos. 32, 33).
Petitioner subsequently filed his Objections on December 1, 2011. On December 12, 2011,
Petitioner moved for reconsideration of the court’s order explaining that he had attempted in
good faith to submit his Objections within the allotted time. (ECF No. 36). The court issued a
text order on December 12, 2011, stating that it would consider Petitioner’s Objections.
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children), his hairstylist Chaquita Culp, and friend Donnell Mayfield. Id. at 96; (ECF No. 20-3
at 94; ECF No. 20-4 at 9, 11). The officers seized crack cocaine that was located in a laundry
basket. (ECF No. 20-3 at 5). They also retrieved crack cocaine that was located next to
Petitioner’s foot, and marijuana that was on Petitioner’s person. Id. at 44. An officer asked who
the crack cocaine belonged to and commented that multiple people in the house could be found
to have shared responsibility for the drugs and could therefore be charged. Id. at 34-35. At that
time, Petitioner told the police officers that the drugs belonged to him. Id. at 35.
Petitioner was indicted for charges related to the possession of crack cocaine and
marijuana. (ECF No. 39 at 10). He was released on bond prior to his trial date. See id. at 16.
Beginning in February 2004, Petitioner’s counsel had trouble contacting him.

Id. at 12.

Petitioner’s counsel sent letters notifying Petitioner of his February and March court dates, and
yet Petitioner failed to appear. Id. at 10, 12. On the week of Petitioner’s trial, his trial counsel
sent an investigator to find him. Id. at 12. While the investigator was able to speak with some of
Petitioner’s family and friends, no one knew where Petitioner was located. Id. On the first day
of his trial, March 3, 2004, Petitioner was absent, and he remained absent throughout the twoday duration of the trial. See id. at 12-17.
The trial judge conducted an inquiry regarding Petitioner’s absence. Id. During that
inquiry, the state entered into evidence Petitioner’s bond, id. at 16, and argued, “The bond does
indicate and Mr. Evans initialed the portion of the bond where it does say that, it gives him a first
initial date to appear and that he shall appear for each successive court term thereafter.” Id. at
17. When the trial court invited defense counsel to make a showing on the issue of Petitioner’s
absence, defense counsel declined. Id. The trial court determined that Petitioner had waived his
right to be present for his trial. Id. at 18. The trial judge found that Petitioner “received notice of

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his right to be present” and had “been warned that the trial would proceed in his absence should
he fail to attend”. Id. The trial court noted that two letters had been sent by the public defender
to Petitioner’s listed address regarding his court dates. Id. The trial judge concluded that
Petitioner’s bond showed he understood his rights and obligations regarding his attendance in
court. Id.
At the beginning of Petitioner’s trial, defense counsel stated that he had recently spoken
with the state about its discovery obligations and wanted to ask on the record if the state
possessed any other material that was “either exculpatory or inculpatory” and that was not
previously provided. Id. at 34. The state replied that there was not. Id.
The court then held a suppression hearing in which Petitioner’s trial counsel challenged
the validity of the search warrant for the search of Petitioner’s person and his home. Id. at 37-46.
During the hearing Officer Robert Cashier testified that he prepared and presented a search
warrant affidavit based on information he received from a confidential informant indicating
Petitioner was keeping and selling crack cocaine at his residence. Id. at 38-40. The officer
stated that the confidential informant participated in a controlled purchase of the drugs from
Petitioner in which he used governmental funds and was monitored by an electronic listening
device. Id. at 40. The officer further testified that police officers recovered the drugs from the
confidential informant following the transaction.

Id.

The judge who issued the warrant

handwrote on the affidavit that the informant had been previously used. Id. at 41.
Petitioner’s trial counsel argued that the search warrant was invalid because the affidavit
did not contain sufficient information to show that the confidential informant was reliable. Id. at
40. Defense counsel contended that the fact that the confidential informant had been used before
was not enough to make the search warrant reliable, particularly without oral testimony to

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supplement the claim and without evidence that the use of the confidential informant “had
resulted in any arrests, any other search warrants, or any positive evidence [being] gathered.” Id.
at 44. Petitioner’s trial counsel also argued that the search warrant affidavit was non-specific in
that it did not state where the controlled purchase was made, from whom it was made, nor what
was heard via the electronic recording. Id. at 44-45. The defense attorney also argued that the
only specific reference as to a location or any particular individuals was that the informant
confirmed the street on which the transaction took place. Id. at 45. Petitioner’s trial counsel
argued that the magistrate’s determination of probable cause must be based on a valid affidavit,
which could not have been the case because Petitioner’s affidavit lacked any indication of the
informant’s reliability. Id. at 45-46.
Upon the conclusion of the defense’s argument, the trial judge immediately denied the
defense’s motion finding no need to hear from the state. Id. at 46. The court stated that based on
the totality of the circumstances, it found “the affidavit does provide the magistrate with
sufficient information concerning the informant’s reliability upon which the magistrate could
base a probable cause determination.” Id. at 46-47.
During the trial, Officer Terrill Harris testified that as another officer was attempting to
handcuff Petitioner who was standing, Officer Harris observed a bag of crack cocaine next to
Petitioner’s left foot. (ECF No. 20-3 at 2-3). Officer Harris indicated that he reviewed the case
summary for Petitioner’s case before coming to trial and stated that he had communicated with
the officer who prepared the report prior to it being generated. Id. at 16.
Following the state’s case, Petitioner’s trial counsel moved for a directed verdict making
a short, three-sentence, non-specific motion. (ECF No. 20-4 at 33). The trial judge denied the
motion. Id. Petitioner’s counsel also moved to suppress the crack cocaine in response to the

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testimony of Officer Harris. Id. at 33-38. The officer had provided in a discovery report that he
observed Petitioner throw a bag of crack cocaine yet at trial the officer testified that he simply
saw the crack cocaine on the floor near Petitioner’s foot. Id. at 34-35; (See ECF No. 20-3 at 216). Petitioner’s counsel argued that his client was prejudiced by this change in the officer’s
account because Petitioner had relied upon the officer’s original account to prepare for the case
and to advise Petitioner. (ECF No. 20-4 at 33-36, 39-40). The state’s attorney conceded that she
did not provide the new information to defense counsel regarding the officer’s testimony despite
being made aware of the change two days prior to trial. Id. at 38. The state argued that
Petitioner was not prejudiced by this mistake because it resulted in the state having less evidence
than what was originally the case. Id. at 38-39. The trial judge refrained from ruling on the
directed verdict motion which Petitioner’s counsel raised in response to this issue and chose
instead to make counsels’ remarks a part of the record and to address the issue at a later time if
necessary. Id. at 40.
Following the case by the defense and the closing arguments of both parties, the jury
deliberated for a little over two hours before finding Petitioner guilty of his charges related to the
possession of crack cocaine. (ECF No. 20-1 at 19-20). Defense counsel renewed the motion
regarding the alleged insufficiency of the evidence and included within his argument his
objection to the state’s failure to provide a correct account of Officer Harris’s observations
during the search of Petitioner’s home. Id. at 20-21. The trial court denied Petitioner’s motions.
Id. at 21. Petitioner was sentenced to imprisonment for a term of 25 years in addition to the
requirement that he pay certain fines.

Id. at 25-26. On March 24, 2004, Petitioner appeared

before a judge on a probation matter and for a reconsideration of his sentence. Id. at 25-31. At
that hearing, Petitioner indicated that he failed to attend his trial because he was scared. Id. at

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29-30.
On November 23, 2004, Petitioner filed an application for post-conviction relief (“PCR”)
in state court in which he raised claims of ineffective assistance and a due process violation. Id.
at 33-38. A PCR hearing was held on October 21, 2008, in which Petitioner was represented by
counsel who requested a belated appeal for his direct appeal claims and raised the postconviction issues of ineffective assistance of trial counsel and a denial of due process under the
Sixth and Fourteenth Amendments. Id. at 44-74. On November 19, 2008, the PCR judge denied
Petitioner’s PCR claims finding that Petitioner failed to show ineffective assistance of trial
counsel. Id. at 77-80. While the PCR judge noted that he was not specifically addressing
Petitioner’s due process claim in his order, the PCR judge stated that he found Petitioner failed to
present any probative evidence for the alleged violation. Id. at 81. The PCR court granted
Petitioner’s request for a belated appeal. Id. at 80.
On July 9, 2009, Petitioner’s counsel filed a petition for a writ of certiorari to the South
Carolina Supreme Court raising the issue of whether the PCR court correctly granted the belated
appeal. (ECF No. 20-8). In an accompanying brief, Petitioner’s counsel presented two issues:
1. Did the trial court err by denying appellant’s motion to suppress the crack
because the officer’s testimony was different from the police report which
fact was not disclosed to appellant prior to trial and the solicitor admitted
that she knew this before trial?
2. Did the trial court err in denying appellant’s motion to suppress the
search warrant based on the insufficiency of the affidavit because no
evidence was presented regarding the reliability of the confidential
informant?
(ECF No. 20-9 at 4). For both issues, the South Carolina Supreme Court affirmed the lower
courts and upheld Petitioner’s conviction. (ECF No. 20-11).
On October 4, 2010, Petitioner filed the instant habeas motion stating four grounds for
relief. (ECF No. 1). The court has construed Petitioner’s claims as follows. For his first ground,
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Petitioner contends that the trial court erred in not directing a verdict and/or that his trial counsel
and appellate counsel were ineffective for not preserving his directed verdict claim. (See ECF
No. 1 at 5; ECF No. 35 at 4). As a second and third ground, Petitioner argues that the trial court
erred in not suppressing the crack cocaine and the search warrant.

(ECF No. 1 at 6-9). For a

final ground, Petitioner claims the trial court violated the Sixth Amendment by trying him in his
absence and/or that his trial counsel and appellate counsel were ineffective for not preserving this
issue. (See id. at 9-10; ECF No. 35 at 4).
STANDARD OF REVIEW
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court.

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those
portions of the Report to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter
with instructions. See 28 U.S.C. § 636 (b)(1).
ANALYSIS
As Petitioner is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). Given the several objections Petitioner has filed
in response to the Report, (ECF No. 35), the court is inclined to review de novo all of the
Magistrate Judge’s findings.

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Grounds One and Four: Denial of a Directed Verdict and Trial in Petitioner’s Absence
Ground one of Petitioner’s petition involves the trial court’s denial of a directed verdict,
and ground four involves Petitioner’s trial in abstentia.

The Magistrate Judge correctly

determined that, to the extent Petitioner argues error on the part of the trial judge, both claims are
procedurally barred as the arguments were not presented on appeal to the state courts. (See ECF
No. 20-9); Strickler v. Pruett, 149 F.3d 1170, at *5 (4th Cir. 1998) (“[A] state prisoner must
exhaust all available state remedies[,] before he can apply for federal habeas relief[,]” by “fairly
present[ing] the substance of his claim to the state’s highest court.”). Petitioner acknowledges
that he failed to exhaust these grounds, but contends that his failure to preserve these issues was
due to the ineffective assistance of his trial and appellate counsel. (ECF No. 1 at 5, 10; ECF No.
35 at 4).
Petitioner’s claims of ineffective assistance of trial counsel for failure to sufficiently
move for a directed verdict and failure to object to a trial in his absence, although themselves
unexhausted, may be addressed pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012). Martinez
holds that federal courts may find cause to excuse a procedural default where a prisoner had
inadequate assistance in his initial-review collateral proceedings and the defaulted claim at issue
is one of ineffective assistance at trial. Id. at 1320. However, “to overcome the default, a
prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel
claim…has some merit.” Id. at 1318.
The court finds that Petitioner’s claim of ineffective assistance of trial counsel is without
merit because Petitioner has not made a sufficient showing of prejudice. The United States
Supreme Court has explained, “The benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the adversarial process that

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the [proceeding] cannot be relied on as having produced a just result.” Strickland v. Washington,
466 U.S. 668, 686 (1984). In addition to showing his counsel’s representation “fell below an
objective standard of reasonableness”, a defendant must also show “that the deficient
performance prejudiced the defense.” Id. at 687-88. In other words, he must prove “that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
The government’s brief supports Petitioner’s claim that his trial counsel was ineffective
by explaining that Petitioner’s trial counsel failed to present an argument to the trial court that
would have sufficiently preserved the directed verdict issue for direct appeal. (ECF No. 20 at
11-12). Nonetheless, at the conclusion of the trial, Petitioner’s trial counsel renewed the motion
with detail (ECF No. 20-1 at 20-21). Petitioner has not presented any reason for the court to find
it probable that the trial judge would have directed a verdict if confronted with a different
argument from trial counsel. Similarly, Petitioner has failed to demonstrate that the proceeding
would have achieved a different result if he were present or if his trial counsel had objected to his
being absent.
Therefore, the court accepts the recommendation of the Magistrate Judge and dismisses
grounds one and four of Petitioner’s petition.
Grounds Two and Three: Denial of Motions to Suppress Crack Cocaine and Search
Warrant
Petitioner argues that the trial court erred in refusing to suppress the crack cocaine and
the search warrant. Petitioner’s claims were preserved for habeas review as they were exhausted
in state court. (See ECF No. 20-9); Strickler, 149 F.3d 1170, at *5. Federal habeas review is
conducted pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

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In order to grant relief under the AEDPA, a federal court must find that the underlying state court
proceeding:

(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 application of the facts in
light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2). The
court must also assume that the factual determinations made by the state court are correct unless
the petitioner rebuts that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The Magistrate Judge applied the proper framework for Fourth Amendment claims
presented in 28 U.S.C. § 2254 petitions. Under Stone v. Powell, 428 U.S. 465 (1976), a federal
court may not grant habeas relief for an alleged Fourth Amendment violation, “where the State
has provided an opportunity for full and fair litigation of [the] claim.” Id. at 494. The Fourth
Circuit has adopted an interpretation of “an opportunity for full and fair litigation” which
requires that the district court “inquire as to whether or not the petitioner was afforded an
[o]pportunity to raise his Fourth Amendment claims under the then existing state practice.”
Doleman v. Muncy, 579 F.2d 1258, 1265 (4th Cir. 1978). In the absence of a Petitioner’s claim
“that his opportunity for a full and fair litigation of his Fourth Amendment claim or claims was
in some way impaired,” a district court’s analysis should stop there. Id.
The Report concluded that Petitioner’s Fourth Amendment claims were barred from
federal habeas review because Petitioner had the opportunity to fully and fairly litigate the issues
in state court. (ECF No. 30 at 12-13). The court agrees.
Petitioner’s trial counsel moved for the suppression of the crack cocaine at the conclusion
of the state’s case in response to Officer Harris’s modified account of the search of Petitioner’s
home. (ECF No. 20-4 at 33-38). The trial judge heard arguments from both sides and reserved

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judgment on the issue until later in the trial. Id. Defense counsel re-raised the issue of Officer
Harris’s changed account at the conclusion of the trial in a motion for a directed verdict. (ECF
No. 20-1 at 20-21). The trial judge denied the motion. Id. at 21. Petitioner’s trial counsel
challenged the validity of the search warrant in a suppression hearing before the trial judge.
(ECF No. 39 at 37-46). At that hearing, the trial court heard testimony from the officer who
prepared and presented the search warrant affidavit to the magistrate. Id. The trial judge denied
Petitioner’s motion to suppress the warrant. Id. at 46.
Petitioner’s appellate counsel presented both suppression issues to the South Carolina
Supreme Court in a belated appeal. (ECF No. 20-9 at 4). The Supreme Court issued a per
curiam decision upholding Petitioner’s conviction. (ECF No. 20-11). Because Petitioner was
provided with an opportunity to litigate these Fourth Amendment claims in state court, grounds
two and three of Petitioner’s petition are barred from habeas review.
CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report and
Recommendation and the record in this case, the court ACCEPTS the Magistrate Judge’s Report
and Recommendation (ECF No. 30). It is therefore ORDERED that the Petitioner’s Petition
(ECF No. 1) in the above-captioned case is DISMISSED with prejudice.
IT IS SO ORDERED.

United States District Judge
Greenville, South Carolina
October 17, 2013
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