Hepburn v. Eagleton

Filing 50

ORDER RULING ON 40 Report and Recommendation; GRANTING 23 Motion for Summary Judgment filed by Willie L Eagleton; DENYING 33 Motion for Summary Judgment filed by Samuel Hepburn. A certificate of appealability is denied. Signed by Honorable Richard M Gergel on 9/13/2012. (mbro)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Samuel Hepburn,

#243604
Petitioner,

v.
Warden Willie L. Eagleton,
Respondent.

)
)
)
)
)
)
)
)
)

Civil Action No.: 6:11-cv-2016-RMG

ORDER

----------------------------)

In this case, Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. As a result, this case was automatically referred to a United States Magistrate
Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and
Local Civil Rule 73.02(B)(2)(c) DSC. Respondent submitted a motion for summary judgment
on December 9, 2011. (Dkt. No. 23). Petitioner then filed a motion for summary judgment on
February 10, 2012. (Dkt. No. 33). On July 20, 2012, the Magistrate issued its Report and
Recommendation that this Court grant Respondent's motion for summary judgment and deny
Petitioner's motion for summary judgment. (Dkt. No. 40). Petitioner subsequently filed his
objections to the Report and Recommendation on August 24, 2012. (Dkt. No. 48). For the
reasons set forth below, Respondent's motion for summary judgment (Dkt. No. 23) is granted
and Petitioner's motion for summary judgment (Dkt. No. 33) is denied.
Law/Analysis
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews 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 and Recommendation to which specific

Page 1 of 13

objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(I). This Court
may also "receive further evidence or recommit the matter to the magistrate with instructions."
Id In the absence of specific objections to the Report and Recommendation, this Court is not

required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d
198,200 (4th Cir. 1983).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A") provisions apply
to this present habeas corpus petition filed on July 28, 2011. 1 Under AEDPA, "[a] 1 year time
period of limitation shall apply to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State Court." 28 U.S.C. § 2244(d)(1). The one-year time
period runs from the latest of "the date on which the judgment became final by the conclusion of
a direct review or the expiration of the time for seeking such review."
2244(d)(1)(A).

28 U.S.C. §

However, "[t]he time during a properly filed application for State post-

conviction or collateral relief with respect to the pertinent judgment or claim that is pending shall
not be counted toward any period of limitation under this subsequent section." Id. § 2244(d)(2).
Petitioner was found guilty of murder on June 6, 2001, and timely filed a direct appeal. 2 (Dkt.
No. 40 at 2). Because Petitioner filed a direct appeal, his state court conviction became final on
November 13, 2003; therefore, he had one year from November 14, 2003, to file his federal
habeas corpus action unless the period was at any time tolled for any properly filed state

1 The federal petition was filed on August 2,20 II. However, per the holding in Houston v. Lack, 487 U.S. 266, 270­
71 (1988), and the fact that the date stamped on the back of the petition's envelope is unreadable, the court will
assume the petitioner delivered the petition to prison authorities on date Petitioner signed the petition, July 28, 2011
(see Okt. Nos. I, 1-2).

2

Petitioner pleaded guilty to voluntary manslaughter on August 12, 1997, based on the same indictment on which he

was later tried for murder. (Okt. No. 1 at 1). Petitioner had his guilty plea vacated following a successful
application for post-conviction relief based on a misunderstanding between the solicitor and his attorney regarding
his sentence. (ldat 6). Petitioner was then tried for murder and found guilty on June 6, 2001. (Okt. No. 22-3 at 89).

Page 2 of 13

application for Post-Conviction Relief ("PCR").

28 U.S.C. § 2244(d)(2); see Hernandez v.

Caldwell, 225 F.3d 435,438·39 (4th Cir. 2000).
The Petitioner filed an application for PCR on October 12, 2004, or 334 days after his
clock for filing a federal habeas petition began to run. (Dkt. No. 40 at 3). As a result, Petitioner
had only 31 days remaining in which to file a federal habeas petition unless the statute was
otherwise tolled. Following an evidentiary hearing, Petitioner's PCR application was dismissed
on February 10, 2006. (Dkt. No. 40 at 4). Following the dismissal, Petitioner's clock to file a
federal habeas petition began to run once again on March 14, 2006, or the day after the thirty-day
period in which Petitioner could have timely appealed the dismissal. On December 8, 2008,
more than two years after his PCR was dismissed, Petitioner filed a second PCR application
arguing that he should be allowed to belatedly appeal the denial of his first PCR because his
attorney failed to file an appeal as he requested. (Id). The Petitioner was granted an Austin3
appeal on October 21, 2009, allowing him to file a belated appeal of his first PCR. Petitioner
filed a notice of appeal on November 23, 2009. After a review of the record, the South Carolina
Supreme Court denied Petitioner's petition for writ of certiorari. The Supreme Court then denied
Petitioner's request for rehearing on July 21, 2011. Petitioner then filed this federal habeas
petition on July 28, 2011.
Because Petitioner did not timely file an appeal following the dismissal of his first PCR
application, "[t]he only issue to be determined is whether the initial APCR was 'pending: as
meant by the AEDPA, during the time between the state court's initial denial of the APCR and
the state court's allowance ofa belated appeal of that APCR." McHoney v. South Carolina, 518
F. Supp. 2d 700, 704-05 (D.S.C. 2007).

The Supreme Court stated that "the time that an

3 In Austin, the South Carolina Supreme Court allowed a petitioner to file a late appeal of the denial of his PCR,
where the failure to timely file the appeal was the result of the action or inaction of his attorney. Austin v. State, 409
S.E.2d 395, 396 (1991).

Page 3 of 13

application for state post conviction review is 'pending' includes the period between (1) a lower
court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that
the filing ofthe notice of the appeal is timely under state law." Id. at 704 (citing Evans v. Chavis,
546 U.S. 189, 192 (2006)). "The fact that the state court allowed a belated appeal does not make
the notice of appeal 'timely.'" Id. at 705. The Eleventh Circuit has held that the AEDPA's §
2244(d)(2) statutory tolling provision does not encompass the period of time in which a state
prisoner does not have a "properly filed" post-conviction application actually pending in state
court. Id. at 705 (citing Moore v. Crosby, 321 F.3d 1377, 1380-81 (11th Cir. 2003)).
Furthermore, the Court explained that "a state application filed after expiration of the limitations
period does not relate back so as to toll idle periods preceding the filing of the federal petition."

Moore, 321 F.3d at 1381. Thus, "once the state-mandated time in which to appeal the denial of
the APCR has run, the APCR is no longer 'pending: even if the state court later allows the
untimely appeal." McHoney, 518 F. Supp. 2d at 705 (citing Moore, 321 F.3d at 1381).
Here, based on the reasoning cited above, the petitioner's first PCR application did not
remain "pending" under § 2244(d)(2) during the time period between the denial of the first PCR
application and the grant of the belated appeal. Accordingly, the federal petition is untimely.
Petitioner argues, however, that he is entitled to equitable tolling due to extraordinary
circumstances outside of his control.

Specifically, Petitioner asserts that he is entitled to

equitable tolling due to his first PCR attorney's illness during the time period for filing the PCR
appeal. (Dkt. No. 34 at 5-9). The Court agrees. Equitable tolling is reserved "for only those rare
instances where - due to circumstances external to the party's own conduct - it would be
unconscionable to enforce the limitation period against the party and gross injustice would
result." Harris v. Hutchinson, 209 F.3d 325,330 (4th Cir. 2000). In Holland v. Florida, 130 S.

Page 4 of 13

Ct. 2549 (2010), the Supreme Court rejected a per se rule regarding equitable tolling, and instead
directed courts to take a flexible case-by-case approach. Id at 2563-64. The Holland Court
noted that precedent should guide a court's analysis, but with the awareness that particular facts
can warrant special treatment. Id at 2563. Petitioner presented evidence that his attorney
confirmed he would timely file the appeal. (Dkt. No. 34-2 at 1). Petitioner asked his mother on
January 12, 2006, the day after his PCR hearing, to call his attorney and confirm he would be
filing the appeal. (ld.). Petitioner's mother's affidavit states she called the attorney and he
personally confirmed to her that it was his responsibility to file the appeal and that he would
timely file the appeal. (ld.). Petitioner's mother then relayed this information to Petitioner. (ld).
Petitioner showed he then later sought to determine the status of his appeal. (ld). Petitioner's
father stated through his affidavit that in July 2007, Petitioner called him requesting that he
confirm the status of his appeal with the clerk's office of the South Carolina Supreme Court. (fd.
at 2). Petitioner's father called the clerk's office and was informed that no notice of appeal had
been filed in Petitioner's case. (ld). Petitioner's father then arranged for another attorney to
pursue Petitioner's appeal. (fd). The attorney hired to pursue the belated appeal confirmed that
Petitioner's first attorney failed to file his appeal timely due to a sudden and serious illness.
(Dkt. No. 36). She also confirmed that it was difficult to communicate with the attorney and that
it took her several attempts to do so. (Id). The Court finds that, under the particular facts of this
case, that Petitioner is entitled to equitable tolling. See Fleming v. Evans, 481 F.3d 1249, 1255­
58 (10th Cir. 2007) (finding grounds for equitable tolling where attorney misrepresented he was
pursuing appeal).
Although the Court finds Petitioner is entitled to equitable tolling, the petition falls on its
merits. Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his petition

Page 5 of 13

cannot be granted unless the claims "(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
determination of the facts in light of the evidence presented in the State court proceeding." 28
U.S.C. § 2254(d). "[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.

Rather, that application must also be

unreasonable." Williams v. Taylor, 529 U.S. 362,411 (2000). Importantly, "a determination of a
factual issue made by a State court shall be presumed to be correct" and Petitioner has "the
burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C.

§ 2254(e)(I).
Petitioner states four grounds in his petition: 1) Violation of the 5th Amendment's
Double Jeopardy Clause, 2) Violation of 5th Amendment Due Process, 3) Violation of 5th
Amendment Due Process, and 4) Ineffective Assistance of Counsel. The Court discusses each of
Petitioner's grounds below.
I. Double Jeopardy
Petitioner asserts that his conviction for murder violates the Double Jeopardy clause
because he was previously granted PCR following a guilty plea to voluntarily manslaughter
based on the same indictment. (Dkt. No. 1 at 5). The Court finds the PCR judge correctly
applied federal law in denying this ground. See North Carolina v. Pearce, 395 U.S. 711, 720

(1969) overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989) (holding Double
Jeopardy clause imposes no limits on retrying defendant who has succeeded in getting first
conviction set aside). Further, the exception to this rule stated in Bullington v. Missouri, 451

Page 6 of 13

U.S. 430,442 (1981), is inapplicable here because Petitioner's guilty plea was overturned based
on a misunderstanding regarding Petitioner's sentence, not because the evidence was insufficient
to convict. (Dkt. No. 1 at 5). Therefore, the Court holds that Respondent is entitled to summary
judgment as to ground one.

2. Due Process
Petitioner claims he was denied his constitutional right to due process of law because the
State showed vindictiveness in his trial by allowing a private attorney to prosecute the case,
upgraded his charge, refused to offer a plea, and offered ballistics testimony the trial court ruled
inadmissible. (Dkt. No. 1 at 6).
The PCR judge did not incorrectly apply federal law in finding the use of a private
prosecutor is not a violation of due process. The judge found that the county solicitor was
present and involved at the trial, and that he did not turn over all control of the case. (Dkt. No.
22-3 at 84). There was no evidence that the private prosecutor was simultaneously involved in a
civil case against the Petitioner. In these circumstances, the PCR judge did not unreasonably
apply federal law in holding Petitioner's right to due process was not violated. See Jones v.

Richards, 776 F.2d 1244, 1246-47 (4th Cir. 1985); Riner v. Edwards, No. 7:07-455, 2008 WL
4388788 (W.D. Va. Sept. 26,2008).
The Court finds the PCR judge did not made an unreasonable determination of the facts
or unreasonably apply federal law in finding a lack of vindictiveness as well. To establish
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. Johnson, 325 F.3d 205, 210 (4th Cir. 2003) (internal
quotation omitted). Petitioner argues that the state's failure to negotiate a plea was evidence of

Page 7 of 13

vindictiveness (Dkt. No. 34 at 29-32), however, the PCR judge held that this was not evidence
establishing vindictiveness. (Dkt. No. 22-3 at 92). The Court holds that a failure to offer a plea
is not objective evidence of animus and agrees with the PCR judge. See McKinley v. Mitchell,
No. 1:09-265-RJC, 2011 WL 5119377, at *8 (W.D.N.C. Oct. 28, 2011) ("there is no
constitutional right to a plea bargain") (citing Weather v. Bursey, 429 U.S. 545, 561 (1977));
London v. United States, No. 3:09-287-02-W, 2009 WL 2462180, at *8 (W.D.N.C. Aug. 10,

2009) (holding government's decision not to offer plea bargain is not evidence of
vindictiveness). Petitioner also cannot show vindictiveness based on his trial for murder because
he had his plea to a lesser included offense overturned. See United States v. Whitley, 759 F.2d
327, 333 (4th Cir. 1985) ("A defendant who attacks his plea to a lesser included offense knows
that if he is successful he will be faced with trial of the greater offense charged in the indictment
but withdrawn as a result of the plea bargain.").
Finally, Petitioner argues that the government-offered ballistic testimony at trial was
evidence of vindictiveness. (Dkt. No. 1 at 6). The Court finds this argument is procedurally
barred because it was never raised nor ruled upon by the PCR court. (Dkt. No. 22-3 at 44-95).
Further, the Court finds this argument is unsupported by the record. The trial judge ruled that the
state could not offer any scientific evidence regarding ballistics (Dkt. No. 22-1 at 46), and no
exhibits were introduced (Dkt. Nos. 22-2 at 102, 22-3 at 109).

Petitioner argues that Dr.

Dembosky's testimony violated this order (Dkt. No. 34 at 29), but his testimony was not about
ballistics but his autopsy of the victim (Dkt. No. 22-1 at 91-96). Therefore, the Court finds
Respondent is entitled to summary judgment as to ground two.
3. Due Process

Page 8 of 13

For his third ground, Petitioner argues his due process rights were violated when the state
destroyed ballistic evidence in its possession before his trial for murder. (Dkt. No. 1 at 7).
"When the issue is preservation of potentially exculpatory evidence, the defendant must show
bad faith on the part of the government to prevail on a violation of due process claim .... [T]he
presence or absence of bad faith by the police for purposes of the Due Process Clause must
necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it
was lost or destroyed." Holdren v. Legursky, 16 F.3d 57,59-60 (4th Cir. 1994) (citing Arizona v.
Youngblood, 488 U.S. 51, 57-58 (1988». Here, Petitioner cannot show bad faith. The evidence

was not eXCUlpatory, but showed that the bullet recovered from the victim's body matched the
gun found in Petitioner's possession. (Dkt. No. 22-3 at 116-17); Illinois v. Fisher, 540 U.S. 544,
548 (2004) (finding lack of bad faith where evidence inculpates, not eXCUlpates, defendant).
Further, the trial court found that the gun evidence was destroyed by the Cheraw Police
Department only upon instruction from the City Administrator to the City Police Department.
(Dkt. No. 22-1 at 47). In these circumstances, Petitioner cannot show that destruction of the
ballistic evidence was a violation of due process. Respondent's motion for summary judgment
as to ground three is therefore granted.

4. Ineffective Assistance ofCounsel

Petitioner's final ground is that he was denied effective assistance of counsel as
guaranteed by the Sixth Amendment. (Dkt. No. 1 at 10). Where allegations of ineffective
assistance of counsel are made, the question is "whether counsel's conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having produced
a just result." Strickland v. Washington, 466 U.S. 668, 694 (1984). First, the Petitioner must
show that counsel made errors so serious that counsel's performance was below the objective

Page 9 of 13

standard of reasonableness guaranteed by the Sixth Amendment. fd. at 688.

Second, the

Petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." fd. at 694. Review by this Court
of "[t]he standards created by Strickland and § 2254(d) are both highly deferential ... and when
the two apply in tandem, review is doubly so." Harrington v. Richter, 131 S.Ct. 770, 788 (2011).
In applying § 2254(d), "the question is not whether counsel's actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland's
deferential standard." fd.
Petitioner first argues trial counsel was ineffective for failing to introduce medical
records which showed that Petitioner shot himself following the shooting of the victim.
Petitioner argues this could have led the jury to believe his crime was a crime of passion. (Dkt.
No.1 at 10). Trial counsel stated, and the PCR court held, that it was counsel's strategy not to
mention Petitioner's self-inflicted gunshot because she was concerned the jury would believe it
was a "murder-suicide." (Dkt. No. 22-3 at 91-92).
The Court finds that this strategy is entitled to deference. Courts have shown a marked
and understandable reluctance to characterize tactical or strategic decisions by trial counsel as
ineffective assistance. Carter v. Lee, 283 F.3d 240,249 (4th Cir. 2002). A "strong presumption"
exists that counsel's actions were the function of trial tactics and not "sheer neglect."
Harrington, 131 S. Ct. at 790. This rule, however, is not absolute where the purported strategic

decision is based upon an error or ignorance of the law by trial counsel. Wilson v. Mazzuca, 570
F.3d 490, 502 (2nd Cir. 2009) (omissions based upon "oversight, carelessness, ineptitude or
laziness" cannot be explained as "trial strategy"); Ramonez v. Berghuis, 490 F.3d 482, 488 (6th
Cir. 2007) (a strategic choice made without a professionally competent investigation of the

Page 10 of 13

Petitioner's options is "erected upon ... a rotten foundation" and is not entitled to deference).
Trial counsel was aware that Petitioner had a gun and ammunition in his truck, and that
witnesses would testify that he was looking for victim on the day of the murder. (Dkt. No. 22-3
at 72). She believed a jury would find Petitioner was carrying out a murder-suicide plan. (Id)
Counsel did not wish to put Petitioner on the stand, and so had to decide to choose some
arguments over others. (Jd at 73). The Court therefore finds that the PCR court reasonably held
that trial counsel did not violate Strickland based on her decision not to introduce the medical
records.
Petitioner next argues that trial counsel was ineffective for failing to subpoena the
testimony of eye witnesses whom he argues would have revealed a prior altercation between the
Petitioner and the victim's boyfriend, and that the victim's boyfriend passed a brown paper bag
to victim at the time of the shooting. (Dkt. No. 1 at 10). The PCR court held that trial counsel
spoke to these witnesses before trial, that they were State witnesses, and that trial counsel
believed their testimony would not be beneficial to Petitioner's case. (Dkt. No. 22-3 at 91). This
is supported by the record. (Dkt. Nos. 22-1 at 20-21; 22-3 at 71-72). Further, these witnesses
did not testify at the PCR hearing, and the PCR court held that petitioner could not establish
prejudice without producing the testimony of the witnesses. (Dkt. No. 2203 at 93); see Bassette
v. Thompson, 915 F.2d 932 (4th Cir. 1990). The Court therefore finds that the PCR court

reasonably held that trial counsel did not violate Strickland based on her decision not to call
these witnesses.
Finally, Petitioner argues trial counsel was ineffective for failing to move for a
continuance when she found out shortly before trial that the ballistic evidence was destroyed.
(Dkt. No. 1 at 10). Petitioner argues that a continuance could have shown inaccuracies in

Page 11 of 13

witnesses' testimony about the number of shots fired. (Dkt. No. 34 at 54-56). The PCR court
found no error for failing to request a continuance. (Dkt. No. 22-3 at 93). Trial counsel testified
that she did not think that the ballistic evidence was important in light of the eyewitness reports
of the shooting as well as the coroner's autopsy testimony. (ld. at 70). Trial counsel did not see
any need to ask for continuance in light of this other evidence. (Id.). Recognizing the eye­
witness testimony of the shooting, and the deference the Court owes to counsel's trial strategy,
the Court holds that the PCR court reasonably found trial counsel did not violate Strickland in
failing to request a continuance.

Therefore, Respondent's motion for summary judgment

regarding ground four of his habeas petition is granted.

Conclusion

Based on the reasoning set forth above, the Court grants the respondent's motion for
summary judgment (Dkt. No. 23) and denies Petitioner's motion for summary judgment (Dkt.
No. 33) as moot.
Certificate of Appealability

The governing law provides that:
(c)(2) A certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability ... shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 22S3(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable.

See Miller-EI v.

Cockrell, 537 U.S. 322,336 (2003); Slack v. McDaniel, 529 U.S. 473,484 (2000); Rose v. Lee,

Page 12 of 13

252 F.3d 676,683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate
of appealability has not been met. Therefore, a certificate of appealability is denied.
AND IT IS SO ORDERED.

September

r:s, 2012

Page 13 of 13