Singletary v. McFadden

Filing 66

ORDER adopting 61 Report and Recommendation as modified. Respondent's 35 and 48 Motions for summary judgment are granted. The 58 Motion to expand the record is denied. Additionally, a certificate of appealability is denied. Signed by Honorable R Bryan Harwell on 3/31/14. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Sylvester Singletary,

)
)
Petitioner,
)
)
vs.
)
)
Joseph McFadden, Warden,
)
)
Defendant.
)
________________________________________________)

C/A No. 8:13-cv-0804-RBH

ORDER

The Plaintiff, pro se, instituted this action pursuant to 28 U.S.C. § 2254 on March 20, 20131.
He is incarcerated in the SCDC at Lieber Correctional Institution.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02 D.S.C., this matter was referred
to United States Magistrate Judge Jacquelyn D. Austin, for pretrial handling. On July 1, 2013, before
the defendant responded to the petition, Magistrate Judge Austin entered a text order granting the
petitioner’s motion to appoint counsel and appointed attorney Jeremy Adam Thompson. The motion
was granted on the basis that Petitioner alleged that he is mentally retarded and “cannot read or hold
a thought.” (ECF No. 27) In addition, the Magistrate Judge noted that Petitioner’s pro se ground for
habeas relief was that “his counsel provided ineffective assistance by failing to fully explain the State’s
plea offer when counsel was aware of Petitioner’s diminished mental capabilities.” Id. Counsel for the
petitioner filed a motion to amend the habeas petition, which was granted. The defendant filed a
motion for summary judgment and also a supplemental motion for summary judgment (after the

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The petition was delivered to the prison mail room on March 20, 2013. See Houston v. Lack,
487 U.S. 266, 270 (1988)
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amended petition was filed). Petitioner filed a response in opposition to the motions and also moved
to expand the record for presentation of additional evidence.
The matter is before this Court on the Report and Recommendation of Magistrate Judge Austin,
which was issued on February 7, 2014. After analyzing the issues presented in this case, the
Magistrate Judge recommended that this Court grant the respondent’s motions for summary judgment
and deny the petitioner’s motion to expand the record. Petitioner filed objections to the Report on
February 24, 2014.
In conducting its review of the Report and Recommendation, the Court applies the following
standard:
The Magistrate Judge makes only a recommendation to the court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains
with the court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged
with making a de novo determination of those portions of the Report 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 with instructions. 28
U.S.C. § 636(b)(1).
The court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Id. However, the court need not
conduct a de novo review when a party makes only “general and conclusory objections
that do not direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed
only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S.722 (1991). “Inadequate assistance of counsel

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at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Martinez v. Ryan, __ U.S. __, 132 S.Ct. 1309, 1315 (2012).
“To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistanceof-counsel-claim is a substantial one, which is to say that the prisoner must demonstrate that the claim
has some merit.” Id. at 1318.
Petitioner recognizes that all three of his grounds for relief are procedurally barred because they
were not raised by PCR counsel. However, he brings them before the Court under Martinez.
Ground One asserts that trial counsel was ineffective in failing to fully explain the benefits of
“the state’s offer to recommend a sentence of ten years in exchange for a guilty plea when counsel was
aware of Petitioner’s diminished mental capabilities in violation of his Sixth and Fourteenth
Amendment rights.” Quoted in R&R, p. 5. Petitioner further alleged in Ground One that “[t]rial
counsel failed to retain a mental health expert to assist him in explaining the charges, consequences,
the court system and its function, and the benefits of accepting the State’s plea offer of ten (10) years.”
(ECF No. 1, p. 6) The Magistrate Judge assumed without deciding that PCR counsel was ineffective
for failing to raise this ground to the PCR court. However, she found that trial counsel’s conduct did
not fall below an objective standard of reasonableness under Strickland v. Washington, 466 U.S. 668
(1984); Hill v. Lockhart, 474 U.S. 52 (1985); and Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376, 1384
(2012). The Court agrees. Trial counsel Fox testified at the PCR hearing that Petitioner was facing a
life sentence and that he discussed the ten-year plea deal with the petitioner but that he “did not waiver
in his position that he did not do anything and that he would not accept a sentence for anything.” (ECF
No. 36-3, p. 50). The record reflects that counsel Fox had Petitioner evaluated by the South Carolina

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Department of Mental Health2 and the South Carolina Department of Disabilities and Special Needs3
and that a state circuit judge conducted a Blair hearing. See ECF No. 36-3, p. 57. The Court agrees
with the Magistrate Judge’s analysis of this issue and finds that trial counsel was not ineffective in
failing to fully explain the plea offer or in failing to take an expert with him to meet with Petitioner
concerning the case. Therefore, Martinez does not provide cause for the procedural default as to
Ground One.
Ground Two asserts that defense counsel was ineffective in failing to object to “Golden Rule”
arguments made by the State in its opening statement and closing argument. The Magistrate Judge
assumed without deciding that PCR counsel was ineffective in failing to raise this issue. However, she
found that (although in her opinion the comments were inappropriate and counsel should have
objected) no prejudice was shown because the remarks were limited in scope and duration and the
evidence of guilt was overwhelming. Therefore, she found that there was no reasonable possibility that
the outcome of the trial would have been different without the remarks and that petitioner had
accordingly failed to demonstrate that his ineffective assistance of counsel claim was substantial.
Therefore, she found that the procedural default was not excused under Martinez.
The defendant has not objected to the finding in the Report and Recommendation that the
prosecutor’s “comments were inappropriate and his trial counsel should have objected.” (ECF No. 61,

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Richard L. Frierson, M.D., of the South Carolina Department of Mental Health, found
evidence that Petitioner is mentally retarded and found that he needed further evaluation by the
Department of Disabilities and Special Needs. (ECF No. 56-1, p. 4)
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Dr. Donna Culley, Ph.D., with the South Carolina Department of Disabilities and Special
Needs, gave an opinion that “Mr. Singletary has the capacity to demonstrate a factual and a rational
understanding of the legal process, the charges against him, and the possible penalties if convicted.
Likewise, it is the examiners’ opinion that he has the ability to effectively communicate with his
attorney in developing a defense.” (ECF No. 56-1, p. 8)
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p. 24). Therefore, the Magistrate’s finding that trial counsel was ineffective for failing to object to the
prosecutor’s arguments stands under this Court’s scope of review unless the finding amounted to clear
error. The Court does not find clear error in this finding. Petitioner objects to the Magistrate’s finding
that no prejudice resulted from the violation of the “Golden Rule” by the solicitor. He contends that
the Report errs in emphasizing the duration of the improper remarks rather than the points in time in
which the remarks were made, particularly during the closing argument. He also objects to the
characterization of the evidence as overwhelming because “the purpose of the Golden Rule argument
is to overwhelm the jury’s dispassionate consideration of the facts. . .” (ECF No. 64, p. 5)
“The law is clear that although it is improper to ask jurors to place themselves in the position
of a party, such a ‘golden rule’ argument does not constitute reversible error if no prejudice arise[s]
from counsel’s comment.” Brown v. Cartledge, No. 9:09-2254-JFA-BM, 2010 WL 2733858 at *6
(D.S.C. June 10, 2010), citing Ladantae v. Koppel, No. 07-2176, 2010 WL 2025586 at *13 (D.Md. May
19, 2010). See also, Darden v. Wainwright, 477 U.S. 168, 180 (1986)(Prosecutor’s remarks may have
been “undesirable or even universally condemned” but did not so infect the trial with “unfairness as
to make the resulting conviction a denial of due process.”) Here, this Court agrees that there is no
reasonable probability that the petitioner would have been acquitted but for the remarks. See R&R, pp.
25. Therefore, the procedural default is not excused under Martinez.
In Ground Three, Petitioner contends that defense counsel was ineffective in failing to move
to quash the first degree burglary and assault and battery with intent to kill indictments because they
listed an officer in the upper left hand corner as the witness and the officer testified at trial that he did
not testify in front of the grand jury. Petitioner objects to the finding by the Magistrate Judge that
Ground Three is not cognizable for habeas review because it concerns only an error of state law. In

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his objections, Petitioner argues that a habeas claim for ineffective assistance of counsel is based on
violation of constitutional law and not state law and that the Magistrate erred in failing to address this
procedurally defaulted claim under Martinez. The Court agrees with the petitioner that Ground Three
is cognizable for habeas review, as it is an ineffective assistance of counsel claim. However,
Petitioner’s claim still fails. Assuming without deciding that PCR counsel was ineffective for failing
to make this argument, trial counsel’s conduct did not fall below an objective standard of
reasonableness in failing to raise this claim.
When questions arise regarding the validity of an indictment, there is a legal presumption (in
the absence of evidence to the contrary) that the indictment was duly returned in keeping with the
regularity and legality of the proceedings in the court of general sessions. State v. Jones, 211 S.C. 319,
45 S.E.2d 29 (1947). The burden is on the defendant to prove facts upon which a challenge to the
legality of the grand jury or its proceedings is predicated. State v. Griffin, 277 S.C. 193, 285 S.E.2d
631 (1981). As argued by the defendant, it is common practice in South Carolina for the officer whose
name is on the arrest warrant or incident report to be listed on the upper left hand corner of the
indictment. This does not necessarily mean that this officer will present the case to the grand jury. The
fact that Officer Clark’s name is listed on the upper left hand corner of the indictment and he testified
at trial that he did not appear before the grand jury does not mean that no officer testified before the
grand jury and that the prosecutor actually testified before the grand jury. Further, any motion to quash
the indictment on the basis of a defect on its face must be made before the jury is sworn. S.C. Code
Ann. § 17-19-90; State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005). According to the petitioner, the
testimony of Officer Clark did not come until long after the jury was sworn. Even if counsel had
moved to quash on this basis at the proper time, the State could have amended that portion of the

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indictment, if even necessary, to substitute the name of the officer who actually testified before the
grand jury. Therefore, any motion to quash made at that time would have been denied. Therefore,
Martinez does not provide cause for the procedural default as to Ground Three.
Finally, Petitioner objects to the recommendation by the Magistrate Judge that the court deny
[58] Motion to Expand the Record. Petitioner asserts that this Court can determine that trial counsel
and PCR counsel were ineffective based on the arguments presented without requiring an evidentiary
hearing. “However, in the event that this Court believes that it cannot resolve those issues based on
the record that already exists, then the Petitioner believes that an evidentiary hearing is both authorized
and needed.” (ECF No. 58, p. 2) The Court finds that, without deciding whether expansion of the
record could ever be appropriate in a situation such as this, it is unnecessary in this case to expand the
record. The record is adequate for the Court to review the matter and find that Petitioner’s grounds for
habeas relief should be denied. Further, as the Magistrate Judge points out, 28 U.S.C. § 2254(e)(2)(B)
provides that the court shall not hold an evidentiary hearing unless “the facts underlying the claim
would be sufficient to establish by clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying offense.”
The Court has reviewed the Petition, Report and Recommendation by the Magistrate Judge,
the applicable law, and the petitioner’s objections. On the basis of the authorities cited by the
Magistrate Judge and this Court’s review of the record, the Court overrules the objections and
adopts the Report of the Magistrate Judge as modified. The respondents’ [35] and [48] motions for
summary judgment are granted. The [58] motion to expand the record is denied.
Certificate of Appealability Denied. A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the

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district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the court’s assessment of the constitutional claims is debatable or
wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 33638 (2003). When the district court denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. In the instant
matter, the court concludes that Petitioner has failed to make the requisite showing of “the denial of
a constitutional right” and thus denies a certificate of appealability.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
March 31, 2014
Florence, South Carolina

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