Bailey v. Bazzle, Civil Action No. 4:07-CV-03646-MBS.

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtMargaret B. Seymour
Citation628 F.Supp.2d 651
PartiesJomo Rashad BAILEY, Petitioner, v. Richard BAZZLE, Warden, Perry Correctional Institution, Respondent.
Decision Date30 September 2008
Docket NumberCivil Action No. 4:07-CV-03646-MBS.

Page 651

628 F.Supp.2d 651
Jomo Rashad BAILEY, Petitioner,
v.
Richard BAZZLE, Warden, Perry Correctional Institution, Respondent.
Civil Action No. 4:07-CV-03646-MBS.
United States District Court, D. South Carolina, Florence Division.
September 30, 2008.

Page 652

Jomo Rashad Bailey, Pelzer, SC, pro se.

Donald John Zelenka, William Edgar Salter, III, Attorney General's Office, Columbia, SC, for Respondents.

ORDER AND OPINION

MARGARET B. SEYMOUR, District Judge.


Petitioner Jomo Rashad Bailey ("Petitioner"), a pro se prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. Petitioner is presently confined in the Perry Correctional Institution of the South Carolina Department of Corrections (SCDC), pursuant to commitment orders from the Spartanburg County Clerk of Court.

Petitioner filed this habeas corpus petition on November 9, 2007. Richard Bazzle

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("Respondent") filed a motion for summary judgment on January 14, 2008. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), the court issued an order on January 15, 2008, advising Petitioner of the summary judgment procedure and the possible consequences if he failed to respond adequately. On January 31, 2008, Petitioner filed a motion for extension of time to respond to Respondent's motion for summary judgment, which motion was granted on March 10, 2008. On May 19, 2008, Petitioner filed a response in opposition to the motion for summary judgment.

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the matter was referred to United States Magistrate Judge Thomas E. Rogers, III for a Report and Recommendation. The Magistrate Judge filed a Report and Recommendation on May 28, 2008. The Magistrate Judge determined that Respondent's motion should be granted. Petitioner filed objections to the Magistrate Judge's Report on June 13, 2008. Respondent has not responded to Petitioner's objections.

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of any portion of the Report and Recommendation to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

I. FACTS

The facts are set forth fully in the Magistrate Judge's Report.1 The Spartanburg County Grand Jury indicted Petitioner at the August 2000 term of court for trafficking in cocaine (01-GS-42-2001). (App. pp. 188-89). Jennifer Johnson, Esquire, represented Petitioner on this charge. On March 26, 2002, he received a jury trial before the Honorable J. Derham Cole. The jury found him guilty as charged. Judge Cole sentenced Petitioner to twenty-five years imprisonment. (App. pp. 5-131).

Petitioner timely served and filed a notice of appeal. Assistant Appellate Defender Eleanor Duffy Ceary represented him on appeal. On April 28, 2003, Ms. Cleary filed a Final Anders Brief in the South Carolina Court of Appeals on Petitioner's behalf and petitioned to be relieved as counsel. The Final Anders Brief presented only one issue for appellate review: "Did the trial judge err by failing to suppress evidence of the cocaine seized from a bag without a search warrant and where none of the exceptions to the warrant were present?" (Final Anders Brief, at 3).

On June 17, 2003, Petitioner filed his own Pro Se Brief to the Final Anders Brief in which he presented a Fourth Amendment challenge for the Court of Appeals' review: "Did the trial judge error by failing to suppress evidence of the cocaine that was seized from a bag without unreliable, uncorroborated information from a tipster, and a invalid search incident to arrest, nor a search warrant, or voluntary consent, and a three hour investigative detention was unreasonable under The Fourth Amendment?" (Pro Se Brief, at 3). The South Carolina Court of Appeals dismissed Petitioner's appeal and

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granted counsel's request to be relieved in an unpublished opinion filed on December 16, 2003. State v. Bailey, 2003-UP-729 (S.C. Ct. App., Dec. 16, 2003). The Court of Appeals sent the Remittitur to the Spartanburg County Clerk of Court on January 16, 2004.

Petitioner filed a pro se Post-Conviction Relief (PCR) Application (04-CP-42-836) on March 11, 2004. He alleged the following grounds for relief in his Application:

(I). Applicant contends his trial counsel was [ineffective] for fail[ing] to conduct a pre trial investigation, seek out potential witnesses who exited the [Greyhound] bus before Applicant and after Applicant, to question them about Applicant's arrest; [counsel also] failed to take pictures of the bus station to show the officers could not have seen Applicant exit the bus with no black bag; [counsel] failed to interview the bus driver; and [counsel] failed to point out to the court that Investigator L.D. Smith's incident report said Applicant was not arrested with the drugs on his shoulder but ten (10) feet away from applicant.

(II). Applicant contends he was denied Due Process of law in violation of his Fourteenth Amendment Federal Constitutional rights, when the State's witnesses (Investigator L.D. Smith and Sgt D. Barnwell) committed perjury by testifying they witnessed Applicant exit the Greyhound bus with a black bag and then arrested him with the same on his shoulder.

(App. pp. 139-50).2

The State filed its Return on August 30, 2004. (App. pp. 151-55). The Honorable J. Mark Hayes, III held an evidentiary hearing into the matter on June 23, 2005. Petitioner was present at the hearing and was represented by Frank L. Eppes, Esquire. Assistant Attorney General Christopher Newton represented the State. Petitioner testified on his own behalf and presented testimony of trial counsel. The State did not present any witnesses. (App. pp. 156-79).

On July 14, 2005, Judge Hayes filed an Order of Dismissal in which he denied relief and dismissed the Application with prejudice. The Order of Dismissal addressed Petitioner's claims that trial counsel was ineffective because (1) counsel had only met with his trial counsel the day before his trial; (2) counsel should have gotten other witnesses, specifically other bus passengers and the driver, to testify; (3) counsel should have brought out that the incident report stated Petitioner had been arrested away from the scene; and (4) trial counsel did not introduce the drawing of the scene. (App. pp. 181-86).

A timely notice of appeal was served and filed. On May 22, 2006, Deputy Chief Attorney Wanda H. Carter filed a Johnson Petition for Writ of Certiorari on Petitioner's behalf and petitioned to be relieved as counsel. The only question presented in the Johnson Petition stated: "Trial counsel rendered ineffective legal assistance because [s]he lacked sufficient time to prepare petitioner's case prior to trial." (Johnson Petition, at 2). On July 10, 2006, Petitioner filed "Petitioner's Response to Johnson Petition" in which he raised a second issue: "Petitioner was denied due process of law and effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the federal Constitution." (Petitioner's Response to Johnson Petition, at 1). The South Carolina Court of Appeals filed an Order on August

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30, 2007, in which it denied certiorari and granted counsel's petition to be relieved. The South Carolina Court of Appeals sent the Remittitur to the Spartanburg County Clerk of Court on September 17, 2007.

II. DISCUSSION

A. Summary Judgment Standard

The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Department of Social Services, 901 F.2d 387 (4th Cir.1990).

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered when a moving party has shown "[that] the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The evidence presents a genuine issue of material fact if a "reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of proving that there are no facts from which a jury could draw inferences favorable to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party makes this showing, the opposing party must set forth specific facts showing there is a genuine issue for trial. Id. Summary judgment should only be granted in those cases where it is perfectly clear that there remains no genuine dispute as to material fact and inquiry into the facts is unnecessary to clarify the application of the law. McKinney v. Bd. of Trustees of Mayland Cmty. College, 955 F.2d 924, 928 (4th Cir.1992).

B. Standard of Review

Petitioner filed his petition for writ of habeas corpus after the effective date of the Antiterrorism and Effective...

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1 practice notes
  • Hagood v. Cartledge, Civil Action No.:2:15-cv-04163-RBH-MGB
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • November 15, 2016
    ...its suppression," the trial court ruled against him, and the trial court's ruling was affirmed on appeal); Bailey v. Bazzle, 628 F. Supp. 2d 651, 657 (D.S.C. 2008); see also Wells v. Tucker, Civ. A. No. 5:09-cv-80-RS-GRJ, 2011 WL 7110181, at *8 (N.D. Fla. Nov. 7, 2011), adopted at 2012......
1 cases
  • Hagood v. Cartledge, Civil Action No.:2:15-cv-04163-RBH-MGB
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • November 15, 2016
    ...its suppression," the trial court ruled against him, and the trial court's ruling was affirmed on appeal); Bailey v. Bazzle, 628 F. Supp. 2d 651, 657 (D.S.C. 2008); see also Wells v. Tucker, Civ. A. No. 5:09-cv-80-RS-GRJ, 2011 WL 7110181, at *8 (N.D. Fla. Nov. 7, 2011), adopted at 2012......

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