Allen v. Warden of Broad River Corr. Inst.
| Docket Number | C/A: 5:21-2591-JFA-KDW |
| Decision Date | 29 April 2022 |
| Parties | Conrad Antonio Allen, Petitioner, v. Warden of Broad River Correctional Institution, Respondent. |
| Court | U.S. District Court — District of South Carolina |
REPORT AND RECOMMENDATION
Conrad Antonio Allen (“Petitioner”) is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 21, 22. On October 22, 2021 pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 23. On November 29, 2021 Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 25.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 22, be granted, and this Petition be denied.
Petitioner is currently incarcerated in the Broad River Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the August 2015 term of the Greenville County Grand Jury on attempted armed robbery, murder, possession of a weapon during the commission of a violent crime, and conspiracy. App. 110-11, 115-16, 120-21.[1] On October 12, 2015, Petitioner appeared before Judge Perry H. Gravely for a plea hearing. App. 144. Petitioner was represented by Attorney Michael D. Brown, and Assistant Solicitors Sloan Ellis and William Timmons appeared on behalf of the State. Id. According to the facts presented by the solicitor, on the night of November 8, 2013, the victim, his fiance, and their two children, were returning home after visiting his father and going to the store. App. 24. The victim parked the vehicle and his fiance and their 5-year old exited the vehicle and went to the porch to unlock the door. App. 26. The victim was getting his 3-year old out of the back seat. Id. Petitioner and his co-defendant, who had been drinking and discussing how “they wanted to hit a lick, ” saw the victim and his family drive by and turn into their driveway. App. 25. Petitioner approached the vehicle and his co-defendant stood approximately 25 feet away as a lookout. App. 26. Petitioner and his co-defendant were wearing hooded sweatshirts with the hoods pulled up and white bandanas covering their faces. Id. Petitioner was armed with a gun from his co-defendant. App. 25-26. Petitioner pointed the gun at the victim and told him to “give it up, ” and the victim asked Petitioner “do I need to call the police.” App. 26. Petitioner replied Id. Petitioner then shot the victim in the chest. App. 26. Petitioner and his co-defendant ran away and the victim's fiance called 911. App. 27. The victim died at the scene. Id. Petitioner and his co-defendant were subsequently arrested and they both gave lengthy confessions. App. 27-28. Petitioner agreed with the facts presented by the solicitor although he stated he did not know there was someone in the car. App. 29. Petitioner entered a guilty plea to murder, possession of a weapon during the commission of a violent crime, attempted armed robbery, and conspiracy. App. 29-30. Judge Gravely sentenced Petitioner to 40 years for murder, 15 years for attempted armed robbery, consecutive, 5 years concurrent for possession of a weapon, and 5 years concurrent for conspiracy. App. 44. Petitioner did not file an appeal. ECF No. 1 at 2.
Petitioner filed his first application for Post-Conviction Relief (“PCR”) on January 27, 2016. App. 46-50. Petitioner asserted he was being held in custody unlawfully because his 55-year sentence was unjustifiable “because murder is 30 years and a weapon poss. is 5 to 15 years that they over sentence me an[d] I'm trying to give some of this [] back.” App. 47. Petitioner filed an Amended PCR application on March 16, 2016, where he raised an ineffective assistance of counsel claim concerning his counsel's promise of a 40 year sentence and 20 years served. App. 54-58. The State filed a Return on January 12, 2017. App. 61-66.
A motion hearing convened on June 28, 2017, before the Honorable Daniel Dewitt Hall. App. 73-99. Petitioner was present and represented by Attorney R. Mills Ariail, Jr. and Attorney Deshawn Mitchell appeared on behalf of the State. See id. Petitioner and plea counsel Attorney Michael D. Brown appeared and testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order issued on February 13, 2018, making the following findings of fact and conclusions of law:
This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has had the opportunity to observe the witnesses presented at the hearing, and can weigh their credibility and testimony accordingly. Below are the findings of fact and conclusion of law as required pursuant to S.C. Code Ann. §17-27-80 (2017). This Court finds the testimony of Counsel to be credible. This Court further finds that the testimony by Applicant is not credible.
In a post-conviction relief action, the applicant bears the burden of proving the allegations in his application. Butler v State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668 (1984); Butler, 236 S.C. at 443, 354 S.E.2d at 814. The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. The courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689. Applicant must overcome this presumption in order to receive relief. Cherry v. State, 300 S.C. 115, 118, 386 S.E.2d 624, 625 (1989).
The reviewing court applies a two-pronged test in evaluating allegations of ineffective assistance of trial counsel. Id. at 117, 386 S.E.2d at 625. First, the applicant must prove that counsel's performance was deficient. Id. Under this prong, the court measures an attorney's performance by its “reasonableness under professional norms.” Id. (quoting Strickland v. Washington, 466 at 688). Second, counsel's deficient performance must have prejudiced the applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. With respect to guilty plea counsel, Applicant must show that there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 (1985).
Applicant testified he met with Counsel and he discussed charges with Counsel. Applicant testified he never saw any discovery materials or a file Rule five Motion for discovery. He further testified he had issues with medicine and was on medicine at the time of the guilty plea but the plea judge never inquired as to whether he was taking any medicine. On cross-examination, Applicant testified he had not been diagnosed with any mental illness before the evidentiary hearing.
Applicant testified he did not have any medical documents with him that would show he had been diagnosed with a mental illness. Applicant further testified he called his sister in jail and told her he was going to pretend to act “crazy” prior to pleading guilty.
Counsel testified about the facts of the case. Counsel testified he met with Applicant and discussed the charges and the potential sentences those charges carried. Counsel testified Applicant never indicated he did not understand the discussions there [sic] were having about the case. Additionally, Counsel testified the Solicitor's office did have a recording of Applicant making a phone call to his sister.
After careful review of the entire record, including the testimony presented at the evidentiary hearings, based on the standard discussed above, this Court finds Applicant has failed to carry his burden in this action regarding any of his allegations of ineffective assistance of counsel. Applicant also failed to prove he was prejudiced by the alleged deficiencies. As a matter of general impression, this Court finds the testimony of Applicant's counsel to be credible and persuasive on all matters. These credibility findings have been applied to the Court's findings and conclusions set forth below.
Applicant alleges that his sentence was too harsh. Applicant was charged with murder which carries a sentence of thirty years to life imprisonment, possession of a weapon during the commission of a violent offense which carries zero to five years imprisonment, attempted armed robbery which carries zero to twenty years imprisonment and conspiracy which carries zero to five years imprisonment. After a review of the guilty plea transcript it is clear from the colloquy between the plea judge and Applicant that Applicant understood what sentences each charge carried....
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