Abraham v. Padula

Filing 57

REPORT AND RECOMMENDATION recommending 36 Amended MOTION for Summary Judgment filed by A J Padula be granted. Objections to R&R due by 3/16/2009. Signed by Magistrate Judge William M Catoe on 2/27/09. (Attachments: # 1 Objection notice)(ladd, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE DISTRICT OF SOUTH CAROLINA G R E E N V IL L E DIVISION

F re n c h is Gerald Abraham, #296575, Petitioner, vs. A . J. Padula, Respondent.

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Civil Action No. 6:08-2286-PMD-W M C REPORT OF MAGISTRATE JUDGE

T h e petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief p u rs u a n t to Title 28, United States Code, Section 2254. P u rs u a n t to the provisions of Title 28, United States Code, Section 6 3 6 ( b ) ( 1 ) (B ) , and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to re v ie w posttrial petitions for relief and submit findings and recommendations to the District C o u r t.

B AC K G R O U N D OF THE CASE T h e record reveals that the petitioner is currently confined in Lee Correctional In s titu tio n the South Carolina Department of Corrections pursuant to orders of commitment o f the Florence County Clerk of Court. The petitioner was indicted at the January 2003 term o f the Florence County Grand Jury for murder, accessory after the fact of murder, p o s s e s s io n of weapon during crime of violence, conspiracy to commit murder, two counts o f assault and battery with intent to kill, two counts of accessory after the fact of assault and b a tte ry with intent to kill, pointing and presenting a firearm and possession of pistol by p e rs o n under the age of 21. He was represented by attorney W . James Hoffmeyer, Jr. On S e p te m b e r 23, 2003, the petitioner pleaded guilty to voluntary manslaughter and assault and b a tte ry with intent to kill (two counts). He was sentenced by the Honorable James E.

B r o g d o n , Jr., to confinement for a period of 30 years for voluntary m a n s la u g h te r and 20 ye a rs for assault and battery with intent to kill, to run concurrently. The petitioner did not a p p e a l his conviction or sentence. T h e petitioner made an application for post-conviction relief filed September 9, 2 0 0 4 , and amended December 9, 2004. The respondent made its return on June 10, 2005. A n evidentiary hearing into the matter was convened on March 13, 2006, at the Florence C o u n ty Courthouse before the Honorable J. Michael Baxley, Presiding Judge. The petitioner w a s present at the hearing and was represented by attorney Kathy Elmore. The respondent w a s represented by Robert L. Brown of the South Carolina Attorney General's Office. In his a p p lic a tio n , the petitioner alleged that he was being held in custody unlawfully for the f o llo w in g reasons: (1 ) I n e f f e c t iv e assistance of counsel for failing to prepare a n d present defense; I n e f f e c t iv e assistance of counsel for failing to request a p re lim in a ry hearing; In e f f e c tiv e assistance for failing to quash indictments; and S u b je c t-m a tte r jurisdiction.

(2)

(3 )

(4 )

A t the hearing, the petitioner proceeded on the above issues and raised the additional issues t h a t trial counsel was ineffective in failing to conduct a ballistics investigation, for failing to c o n d u c t a crime scene investigation, for failing to investigate the petitioner's mental health h is to r y, and for failing to file a direct appeal. At the hearing, the petitioner testified on his o w n behalf. Testifying on behalf of the State was plea counsel W . James Hoffmeyer, Jr. A t the conclusion of the hearing, Judge Baxley orally denied relief. On May 3, 2006, a w r itte n order of dismissal was entered. T h e petitioner made an appeal from the denial of state post-conviction relief. O n appeal, he was represented by W a n d a H. Carter of the S.C. Commission on Indigent

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d e f e n s e , Division of Appellate Defense. On April 2, 2007, counsel Carter made a Johnson p e titio n for writ of certiorari and petition to be relieved as counsel, asserting as the sole a rg u a b le ground: "[T]he PCR court erred in denying petitioner's allegation that he did not v o lu n ta rily and knowingly waive his right to a direct appeal." The petitioner made a pro se p e titio n on April 14, 2007. On July 20, 2007, Abraham moved pro se to supplement the re c o rd to include attached records that he claimed he received from the Department of J u v e n ile Justice on April 25, 2007. On August 15, 2007, the South Carolina Supreme Court d e n ie d the motion to supplement the record. On January 10, 2008, the Supreme Court of S o u th Carolina entered its order "after careful review of the record as required by Johnson v . State, 294 S.C. 310, 364 S.E.2d 201 (1988)" denying the petition and granting counsel's re q u e s t to be relieved. In his pro se petition now before this court, the petitioner makes the following a lle g a t io n s : I. I n e f f e c t iv e Assistance of Counsel for failing to investigate P e titio n e r's mental health status (based upon newly d is c o v e re d evidence) A. C o u n s e l had duty to investigate Petitioner's m e n ta l health where he knew that Petitioner had b e e n treated for mental health, but felt that it was a s s o c ia t e d with prior drug counseling and where e v id e n c e discovered after appeal to highest state c o u rt having jurisdiction suggest that Petitioner w a s entitled to present the defense of insanity or a tt e m p t to obtain a verdict of guilty but mentally ill a n d suggest that Petitioner's competency was an is s u e during the guilty plea. Proceedings because P e titio n e r suffered from mental illness and was n o t taking meds.

I I.

I n e f f e c t iv e assistance of counsel for failing to conduct a b a llis tic s investigation. A. C o u n s e l had duty and failed to fulfill duty to c o n d u c t a ballistics investigation where it was k n o w n that Petitioner and another co-defendant b o th disengaged firearms in the commission of th e act, there were three victims with ballistics ta k e n from only one of the victims and Petitioner w a s charged as the principal based on the fact

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th a t he fired more shots than his co-defendant w h o only fired one or two shots before his gun ja m m e d . I II . P e t it io n e r was entitled to present the defense of insanity o r to attempt to obtain a verdict of guilty but mentally ill. A. N e w ly discovered evidence reveal that Petitioner w a s suffering from mental illness which would h a v e rendered him insane at the time the crime w a s committed or mentally ill.

IV .

Petitioner was not competent to plead guilty and waive f u n d a m e n ta l rights and was entitled to presentence in v e s tig a tio n and competency hearing. A. N e w ly discovered evidence revealed that P e titio n e r was suffering from mental illness and w a s prescribed medication. Petitioner testified th a t he was not being given his prescribed m e d ic a tio n . Counsel informed the trial court, in re la tio n to mental illness, had received some type o f counseling but felt it was in relation to drug c o u n s e lin g , prosecution acknowledged that P e t it io n e r had received some counseling before tria l court and Rule 5 material reveal he was o rd e re d to attend mental health. P e titio n e r asserts that this ground is based upon n e w ly discovered evidence. after Petitioner filed a p p e a l to highest state court having jurisdiction a n d could not have been discovered with due d ilig e n c e prior due to ineffective assistance of c o u n s e l.

B.

V.

Ineffective assistance for failing to file a direct appeal. A. C o u n s e l had a duty and failed to fulfill duty to file a direct appeal where petitioner requested that c o u n s e l file a direct appeal, but counsel testified th a t there were no meritorious issues so he did n o t file direct appeal.

In an motion for amendment to his petition, the petitioner filed two additional g r o u n d s which were granted by the court: V I. C o n v ic tio n obtained by the unconstitutional failure of the p ro s e c u tio n to disclose evidence favorable to the d e fe n d a n t. A. P ro s e c u t io n had in its actual and /or constructive p o s s e s s i o n evidence that the defendant was

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d ia g n o s e d with mental illness, was prescribed m e d ic a t io n and was ordered by the family court to a tte n d mental health counseling. Prosecution f a ile d to disclose this evidence to the defendant a n d the Court prior to and on the date of the guilty p le a proceeding. Newly discovered evidence r e v e a l that the prosecution had this evidence in its a c t u a l and/or cons t r u c t i v e pos s e s s i o n . S u b s e q u e n tly, prosecution misrepresented the f a c t s during the plea colloquy. This ground is b a s e d on newly discovered evidence discovered a f t e r appeal to highest state court. V II. C o n v i c t io n obtained by plea of guilty which was u n la w f u lly induced or not made voluntarily with u n d e rs ta n d in g of the nature of the charge and c o n s e q u e n c e s of the plea. A. N e w ly discovered evidence suggest that at the tim e of the guilty plea defendant was diagnosed w it h mental illness that made it difficult for him to c o n n e c t his behavior with its consequences to a p p r e c ia t e the significance of the proceedings, to m a k e a reasoned choice among the alternates p re s e n te d to him, to rationally aid his attorney in h is defense and was prescribed medication that h e was not taking at the time of his plea. These f a c ts are based on newly discovered after appeal t o the highest state court.

O n December 1, 2008, the respondent filed a motion for summary judgment. B y order filed December 2, 2008, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4 th Cir. 1 9 7 5 ), the petitioner was advised of the summary judgment dismissal procedure and the p o s s ib le consequences if he failed to adequately respond to the motion. On December 2, 2 0 0 8 , the respondent filed an amended motion for summary judgment, and a second R o s e b o r o order was filed on December 3, 2008. The petitioner filed his response to the s u m m a ry judgment motion on February 12, 2009. The petitioner has also filed the following m o tio n s , which are now pending: (1) motion for discovery and to appoint counsel, filed S e p te m b e r 19, 2008; (2) motion for psychiatric services, filed January 8, 2009; and (3) m o tio n for discovery and to appoint counsel, filed January 8, 2009.

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AP P L IC AB L E LAW T it le 28, United States Code, Section 2254(d) and (e) provides in pertinent part a s follows: (d ) An application for a writ of habeas corpus on behalf of a p e r s o n in custody pursuant to the judgment of a State court s h a ll 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 a d ju d ic a tio n of the claim ­ (1 ) resulted in a decision that was contrary to, or involved a n unreasonable application of, clearly established F e d e ra l law, as determined by the Supreme Court of the U n ite d States; or (2 ) resulted in a decision that was based on an u n re a s o n a b le determination of the facts in light of the e v id e n c e presented in the State court proceeding. (e )(1 ) In a proceeding instituted by an application for a writ of h a b e a s corpus by a person in custody pursuant to the judgment o f a State court, a determination of a factual issue made by a S ta te court shall be presumed to be correct. The applicant shall h a ve the burden of rebutting the presumption of correctness by c le a r and convincing evidence. T itle 28, United States Code, Section 2244(d), provides: (1 ) A 1-year period of limitation shall apply to an application f o r a writ of habeas corpus by a person in custody pursuant to th e judgment of a State court. The limitation period shall run f ro m the latest of ­ (A ) the date on which the judgment became final by the c o n c lu s io n of direct review or the expiration of the time f o r seeking such review; (B ) the date on which the impediment to filing an a p p lic a tio n created by State action in violation of the C o n s titu ti o n or laws of the United States is removed, if th e applicant was prevented from filing such State action; (C ) the date on which the constitutional right asserted w a s initially recognized by the Supreme Court, if the right h a s been newly recognized by the Supreme Court and m a d e retroactively applicable to cases on collateral re v ie w ; or

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(D ) the date on which the factual predicate of the claim o r claims presented could have been discovered through th e exercise of due diligence. (2 ) T h e time during which a properly filed application for S t a t e post-conviction or other collateral review with respect to th e pertinent judgment or claim is pending shall not be counted to w a rd any period of limitation under this subsection.

AN AL Y S I S T h e respondent argues that the petition is untimely under the one-year s t a t u t o r y deadline set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). T h is court agrees. The one-year time period runs from the latest of "the date on which the ju d g m e n t became final by the conclusion of direct review or the expiration of the time for s e e k in g such review." 28 U.S.C. § 2244(d)(1)(A). The petitioner's conviction became final te n days after the date of his guilty plea, September 23, 2003, as this was the last date on w h ic h he could serve a notice of appeal to the South Carolina Supreme Court. Rule 2 0 3 (b )(2 ), SCACR. Thus, his conviction became final on October 3, 2003. Accordingly, the lim ita tio n s period expired on October 3, 2004, unless the period was at any time tolled for a n y properly filed state PCR application. 28 U.S.C. § 2244(d)(2). T h e petitioner filed a state PCR application on Septem b e r 9, 2004. At that p o in t, 341 days of non-tolled time had run since the period of limitations began on October 3, 2 0 0 3 . The period of limitations was tolled during the pendency of the PCR until no later than J a n u a ry 28, 2008, when the South Carolina Supreme Court remitted the case to the lower c o u r t after denying certiorari review. See, e.g. Ott v. Johnson, 192 F.3d 510, 513 (5 th Cir. 1 9 9 9 ) (tolling does not include 90 days for United States Supreme Court certiorari petition f r o m final denial by state's highest court of collateral action). A s the petitioner is a prisoner, he should have the benefit of the holding in H o u s to n v. Lack, 487 U.S. 266, 270-71 (1988), which held that a prisoner's pleading is filed

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a t the moment of delivery to prison authorities for forwarding to the District Court. In his p e titio n now before this court, the petitioner states that he placed his pleading in the prison m a ilin g system on June 15, 2008 (pet. at 14). Accordingly, 139 days of non-tolled time a c c ru e d from the disposition of the PCR on January 28, 2008, until the petitioner signed his f e d e ra l petition now before this court. Accordingly, a total of 480 days (341 + 139) of nonto lle d time passed, and thus the petition was filed 115 days after the statute of limitations e x p ir e d . B a s e d upon the foregoing, the petition was not timely filed, and it is barred by S e c t io n 2244(d)(1).1

C O N C L U S IO N AND RECOMMENDATION B e in g "mindful that Congress enacted § 2244(d) `with the ... purpose of curbing t h e abuse of the statutory writ of habeas corpus,'" Allen v. Mitchell, 276 F.3d 183, 186 (4 th C ir. 2001) (quoting Crawley v. Catoe, 257 F.3d 395, 400 (4 th Cir. 2001)), this court concludes th a t the petition in this case was untimely filed, even when properly tolled. W h e re f o re , based upon the foregoing, it is recommended that the respondent's a m e n d e d motion for summary judgment (doc. 36) be granted. See Rouse v. Lee, 339 F.3d 2 3 8 , 257 (4 th Cir. 2003), cert. denied, 541 U.S. 905 (2004) (affirming dismissal of petition f ile d one day late). The pending nondispositive motions will be held in abeyance pending th e district court's disposition of the dispositive motions. Should the district judge adopt this c o u r t's recommendation, these motions will be rendered moot.

F e b ru a ry 27, 2009 G re e n v ille , South Carolina

s /W illia m M. Catoe U n ite d States Magistrate Judge

No issue of equitable tolling has been raised. The petitioner does not address the statute o f limitations argument in his brief in opposition to summary judgment.

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