Ancrum v. State

• Docket Number: C. A. 1:20-04264-DCC-SVH
• Decision Date: 18 August 2022
• Parties: Eric Ancrum, Petitioner, v. State of South Carolina; Bryan P. Stirling, Director of the SCDC, and Warden Rafael Vergara of CoreCivic, Respondents.
• Court: U.S. District Court — District of South Carolina

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Eric Ancrum, Petitioner, v. State of South Carolina; Bryan P. Stirling, Director of the SCDC, and Warden Rafael Vergara of CoreCivic, Respondents.

C. A. No. 1:20-04264-DCC-SVH

United States District Court, D. South Carolina

August 18, 2022

REPORT AND RECOMMENDATION

SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE

Eric Ancrum (“Petitioner”) is an inmate at the Tallahatchie County Correctional Institution in Mississippi. Through counsel, Petitioner filed this 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondents' amended return and motion for summary judgment. [ECF Nos. 44, 45]. The motion having been fully briefed [ECF Nos. 56, 59], it is ripe for disposition.

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondents' motion for summary judgment be granted.

I. Factual and Procedural Background

According to the state court record,

[Petitioner] was indicted at the June 2006 term of the Charleston County Grand Jury for trafficking cocaine (more than 400 grams) (2006-GS-10-4066), possession with intent to distribute cocaine within proximity of a school (2006-GS-10-4069), manufacturing cocaine base crack (2006-GS-10-4070), possession of a firearm during the commission of a violent crime (2006-GS-10-4071), and manufacturing cocaine base crack within proximity of a school (2006-GS-10-4188). He was also indicted at the October 2006 term for trafficking cocaine base (200-400 grams) (2006-GS-10-9674) and PWID cocaine base within proximity of a school (2006-GS-10-9675).

[ECF No. 12-1 at 15-16]. He proceeded to a jury trial on October 8, 2007, on these seven charges before the Honorable George C. James, Circuit Court Judge. Id. at 91 et seq. At trial, Petitioner was represented by John Delgado Esq., and William Nettles, Esq. Id. The jury found Petitioner not guilty of possession of the firearm charge but otherwise found him guilty as charged. [ECF No. 12-10 at 11-16]. In accordance with state law and due to Petitioner's previous convictions, Judge James sentenced Petitioner to life without parole for trafficking cocaine (400 grams or more), trafficking cocaine base crack (200 grams or more), possession with intent to distribute cocaine within proximity of a school, and possession with intent to distribute cocaine base within proximity of a school. [ECF No. 12-10 at 26-27]. Judge James sentenced Petitioner to fifteen years' imprisonment for manufacturing cocaine base and fifteen years' imprisonment for manufacturing crack cocaine within proximity of a school. Id. at 27. The sentences were ordered to run concurrently. Id. at 26-27.

Petitioner did not timely serve a notice of appeal on opposing counsel. [ECF No. 12-1 at 10-12]. Consequently, the appeal was dismissed on October 24, 2007, and the remittitur was issued on November 9, 2007. See id.

On March 25, 2008, Petitioner filed a pro se application for postconviction relief (“PCR”) in which he asserted ineffective assistance of counsel based on trial counsel's failure to file the notice appeal with the solicitor or with the Attorney General. Id. at 25-31. On November 18, 2009, after briefing by the State, Petitioner appeared for an evidentiary hearing before the Honorable Kristi Lea Harrington, Circuit Court Judge (“PCR Court”), who heard testimony from Petitioner and attorneys Delgado and Nettles. [ECF No. 12-10 at 33-34]. Petitioner was represented by Stephen Schmutz, Esq., and Anthony P. Lamantia III, Esq. (“PCR counsel”), who raised additional grounds of ineffective assistance of trial counsel on Petitioner's behalf. Id. at 33-37. On December 14, 2009, the PCR Court issued an order (“PCR Order”) granting Petitioner a belated appeal pursuant to White v. State, 208 S.E.2d 35 (1974) (allowing for belated review of a direct appeal that is properly presented with a PCR appeal), but denying relief on all other allegations and dismissing his application. [ECF No. 12-1 at 15-22].

Petitioner appealed and, on January 17, 2011, filed a petition for writ of certiorari asking, “Did the PCR court err in denying Petitioner's request for a new trial based upon his claims of ineffective assistance of counsel?” [ECF No. 12-11 at 4-16]. The South Carolina Supreme Court denied the petition on May 14, 2012 [ECF No. 12-14], and issued the remittitur on June 7, 2012 [ECF No. 12-15].

Although Petitioner had been granted a White v. State appeal in his first PCR action, PCR counsel never filed the appeal. As such, Petitioner filed a second PCR action requesting to file such an appeal, which was granted, and to which the State consented. [ECF No. 12-16]. Tristan M. Shaffer, Esq., represented Petitioner in the second PCR action, as well as in this habeas corpus action. See id. Petitioner subsequently filed a White v. State appeal asking, “Did the trial court err in instructing the jury that actual knowledge of the presence of an item is evidence of the Petitioner's intent to control its disposition or use?” [ECF No. 12-20 at 4]. The South Carolina Court of Appeals issued a per curiam opinion affirming Petitioner's conviction and finding that Petitioner had failed to object to the jury charge or request another charge at his trial:

Because there is sufficient evidence to support the PCR judge's finding that Petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant certiorari on Petitioner's petition and proceed with a review of the direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).

On direct appeal, Petitioner argues the trial court erred in instructing the jury that actual knowledge of the presence of drugs was strong evidence of Petitioner's intent to control their disposition or use. Because Petitioner failed to object to the jury charge as given at his trial or request an additional charge, we affirm pursuant to Rule 220(b), SCACR and the following authorities: Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the [trial court] to be preserved for appellate review.”); State v. Williams, 266 S.C. 325, 335, 223 S.E.2d, 38, 43 (1976) (“The rule in this state is firmly established that failure to object to a charge, or failure to request an additional charge when the opportunity is afforded, constitutes a waiver of any right to complain on appeal of an alleged error in the charge.”); State v. Stone, 285 S.C. 286, 387, 330 S.E.2d, 286287 (1985) (explaining a party must object to a jury charge as given or request an additional charge when provided the opportunity to do so to preserve the issue for appellate review).

[ECF No. 12-22]. The remittitur was issued on October 29, 2020. [ECF No. 12-23].

Petitioner filed the instant writ of habeas corpus on December 9, 2020, and Respondents' return and motion for summary judgment were filed on March 30, 2021. [ECF Nos. 1, 12, 13]. On July 16, 2021, the undersigned issued a report and recommendation, recommending the district judge grant Respondents' motion. [ECF No. 25].

On October 6, 2021, Petitioner filed a motion to amend/correct his petition for writ of habeas corpus, which the district judge granted on November 15, 2021. [ECF Nos. 29, 34]. Plaintiff filed his amended petition on November 30, 2021. [ECF No. 37]. The previously-issued report and recommendation was deemed moot, and the matter was recommitted to the undersigned. [ECF No. 39].

Respondent filed the currently-pending amended return and motion for summary judgment as to Petitioner's amended petition on January 18, 2022. [ECF No. 44, 45].

II. Discussion

A. Federal Habeas Issues

Petitioner raises the following ground for relief:

Ground One: Sixth Amendment violation-Trial Counsel was ineffective in failing to object to the jury instructions that actual knowledge of drugs is evidence of a defendant's intent to control their disposition or use.

Supporting Facts: The trial court repeatedly instructed the jury that actual knowledge of the presence of the various drugs was . . . evidence of Petitioner's intent to control its disposition or use. Petitioner asserts that trial counsel should have objected to this jury instruction based to the following: 1) the charge negates the prosecution's requirement to prove dominion and control in order to establish constructive possession under state law; 2) this language constitutes a charge on the facts; and 3) this language violates due process by relieving the state's requirement prove dominion and control.

Ground Two: Sixth Amendment violation-Trial Counsel was ineffective in failing to object to the constructive possession jury instruction.

Supporting Facts: Essentially, the trial court defined constructive possession as “the Defendant had dominion and control or had the right to exercise dominion and control over either the drug itself of the property which [the drugs were] found.” ....Petitioner asserts the following: 1) This is not a correct definition of constructive possession; 2) This constitutes a charge on the facts which is prohibited by the South Carolina Constitution; 3) This language violates due process in that it relieves [the prosecution of] its burden to prove an element of the offense because the State need no prove construction possession but can merely prove dominion and control of the property in which the drugs were found; 4) this language constitutes an unconstitutional presumption.

Ground Three: Sixth Amendment violation-Trial Counsel was ineffective in failing to object to the Constructive

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