Boan v. Warden of Lee Corr. Inst.

• Decision Date: 31 July 2012
• Docket Number: Civil Action No.:2:11-02078-RBH-BHH
• Parties: Nicholas Boan a/k/a Nicholas James Boan, Petitioner, v. Warden of Lee Correctional Institution, Respondent.
• Court: U.S. District Court — District of South Carolina

Nicholas Boan a/k/a Nicholas James Boan, Petitioner,

v.Warden of Lee Correctional Institution, Respondent.

Civil Action No.:2:11-02078-RBH-BHH

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

Dated: July 31, 2012

REPORT AND RECOMMENDATION

OF MAGISTRATE JUDGE

The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 21; see also Dkt. No. 20; Dkt. No. 22.)

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.

The Petitioner brought this habeas action on or about July 19, 2011. (Dkt. No. 1.) On January 9, 2012, the Respondent moved for summary judgment (Dkt. No. 21; see also Dkt. No. 20; Dkt. No. 22.) By order filed January 11, 2012, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 23.) On or about January 27, 2012, Petitioner filed a Response in Opposition to the Motion for Summary Judgment. (Dkt. No. 25.)

PROCEDURAL HISTORY

The Petitioner is currently confined at Lee Correctional Institution ("LCI"). In April of 2004, Petitioner was indicted by the Marlboro County Grand Jury for one count of Criminal Sexual Conduct with a Minor, First Degree (2004-GS-34-0593), and two counts of Committing or Attempting a Lewd Act Upon a Child (2004-GS-34-0592 & 2004-GS-34-0594). (See App. 881-86.) Petitioner, who was represented by Attorney Daniel Blake, proceeded to a trial by jury before the Honorable John M. Milling on May 17-21, 2004. (App. 1-815.) Petitioner was found guilty of all three charges on May 21, 2004. (See App. at 802.) On May 21, 2004, Petitioner was sentenced to twenty years of incarceration on the charge of Criminal Sexual Conduct with a Minor, First Degree (2004-GS-34-0593); fifteen years on one charge of Committing or Attempting a Lewd Act Upon a Child (2004-GS-34-0592); and ten years on the other charge of Committing or Attempting a Lewd Act Upon a Child (2004-GS-34-0594). (App. at 812-13.) Although Judge Milling set the sentences on Indictments 2004-GS-34-0593 and 2004-GS-34-0592 to run concurrently, the sentence on Indictment 2004-GS-34-0594 ran consecutive to the other two indictments. (App. at 813.)

Petitioner appealed and was represented on appeal by Tara S. Taggart, Esquire, of the South Carolina Office of Appellate Defense. (See Dkt. No. 20-2.) In an Anders¹ brief filed on June 28, 2005, appellate counsel argued that the "trial court erred in allowing the state to consolidate indictments involving separate victims." (Dkt. No. 20-2 at 5 of 9.) Ms. Taggart also filed a petition to be relieved as counsel. (Id. at 7 of 9.) On or about August 4, 2005, Petitioner filed a pro se Brief of Appellant, (Dkt. No. 20-4), wherein he argued as follows:

(1) Trial counsel's performance was deficient because he had a "conflict of interest" in that trial counsel, previously a prosecutor, stood against Petitioner "in two prior acts of court" (Dkt. No. 20-4 at 6-11 of 36).

(2) The prosecutor "erred in her closing argument, prejudicing the [Petitioner], by suggesting that the jury find guilt because of the 'crime charged,' hence, the crime itself, and not due to a finding that the Applicant was in fact guilty or no." (Dkt. No. 20-4 at 12-17 of 36.)

(3) The trial judge abused his discretion in twice failing to grant Petitioner's motion for directed verdict "when the evidence produced at trial was insufficient to prove the elements of the charges." (Dkt. No. 20-4 at 18-22 of 36.)

(4) The trial judge "erred in the charge to the jury on 'reasonable doubt.'" (Dkt. No. 20-4 at 23- of 36.)

(5) The trial judge "orally pronounced a 20 year sentence but wrote 30 years on my sentencing sheet" for the charge of Criminal Sexual Conduct with a Minor, First Degree. (Dkt. No. 20-4 at 26- of 36.)

(6) It was improper for the charges against him to be consolidated into one trial. (Dkt. No. 20-4 at 26-28 of 36.)

(7) The trial judge abused his discretion "in sustaining [the] prosecutions [sic] objection to allowing into evidence, medical records which show that injury, purported to have been caused by Petitioner, in actuality was a prior injury, not caused by Petitioner, and is an ongoing medical problem for the purported victim." (Dkt. No. 20-4 at 29-32 of 36.)

(8) The trial judge erred "in allowing the use of multiple instances of perjured testimony during trial." (Dkt. No. 20-4 at 33-35 of 36.)

(See Dkt. No. 20-4.)

In an unpublished opinion filed on April 11, 2006, the South Carolina dismissed Petitioner's appeal and granted counsel's petition to be relieved. See State v. Boan, No. 2006-UP-191 (S.C. Ct. App. Apr. 11, 2006); see also Dkt. No. 20-5. Petitioner filed a Petition for Rehearing on or about April 19, 2006. (See Dkt. No. 20-6.) The South Carolina Court of Appeals denied the request for rehearing in an Order dated June 29, 2006. (See Dkt. No. 20-8.) The Court of Appeals issued the remittitur on August 4, 2006. (See Dkt. No. 20-9.)

On or about July 14, 2006, Petitioner filed an application for post-conviction relief ("PCR"). (App. at 825-94.) The following questions and answers appeared on his application:

10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:

(a) conflict of interest

(b) Batson violation

(c) manufactured indictments11. State concisely and in the same order the facts which support each of the grounds set out in (10):

(a) Mr. Dan Blake was the prosecutor, then my public defender

(b) The key witness for the state was in [the] jury room

(c) The indictments are true billed before grand jury convened.

(App. at 827.) In the brief attached to his application, Petitioner raised several additional grounds:

(a) Trial counsel's performance was deficient because he was under a conflict of interest. (App. 836-38.)

(b) The trial court "den[ied] . . . a fair trial and conatminate[d] the jury" when it "create[d] a serious Batson violation[] by allowing the State's main witness . . . to be sequestered with the jury during trial." (App. 839.)

(c) The court erred by not dismissing the indictments "because they had not been true billed by the grand jury, but were manufactured by [the] solicitor." (App. 843.)

(d) The prosecutor "erred in her closing argument, prejudicing the [Petitioner], by suggesting that the jury find guilt because of the crime charged, hence, the crime itself, and not due to a finding that the Applicant was in fact guilty or no." (App. 846.)

(e) The trial judge "abuse[d] his discretion" by twice failing to grant Petitioner's Motion for a Directed Verdict "when evidence produced at trial was insufficient to prove the elements of the charges against the defendant." (App. 848.)

(f) The trial judge "abused discretion in sustaining [the] prosecution's objections to allowing into evidence[] medical records which showed that injury, purported to have been caused by Petitioner, in actuality was a prior injury, not caused by Petitioner, and is an ongoing medical problem for the purported victim." (App. at 848.)

(g) The trial judge "orally pronounced a twenty (20) year sentence, but [he] wrote thirty (30) years on [the] sentencing sheet" for the charge of Criminal Sexual Conduct with a Minor, First Degree. (App. at 852.)

(h) The charges against Petitioner should not have been consolidated into one trial. (App. at 853-54.)(i) The trial judge "erred in the charge to the jury on 'reasonable doubt.'" (App. at 855.)

(j) The trial judge "err[ed] in allowing the use of multiple instances of perjured testimony during the trial." (App. at 857.)

(k) Trial counsel was constitutionally ineffective. (App. at 858-62.)

(l) double jeopardy (App. 863-64.)

(m) The court erred "by not having Hispanic races and Indians" in the jury pool, and there was a "Batson and equal protection and due process of law violation" by their exclusion. (App. at 866.)

(See App. at 836-88.) Petitioner subsequently filed a Motion "to Amend PCR with Supporting Issues and Case Laws." (See App. at 889.) Therein, Petitioner raised the following issues:

(a) The court erred "by allowing testimony to be admitted, when [the] State's expert witness used terms not recognized in the medical field and [there was] no literature to support her finding." (App. at 890.)

(b) Counsel was ineffective for "failing to raise [the issue of] manufactured indictments before the jury was sworn in." (App. at 891.)

(c) The prosecutor "erred in her closing argument, prejudicing the [Petitioner], by suggesting that the jury find guilt because of the crime charged, hence, the crime itself, and not due to a finding that the Applicant was in fact guilty or no.

(App. at 890-94.)

On May 14, 2007, an evidentiary hearing was held before the Honorable Paul M. Burch. (App. at 900-46.) Petitioner was present and represented by G. Miles Gordon, Esquire. In an order dated July 26, 2007, Judge Burch denied the application for post-conviction relief and dismissed the petition. (App. at 947-55.)

Petitioner filed a Notice of Appeal. (See Dkt. No. 20-10.) Kathrine Hudgins, Esquire, of the South Carolina Commission on Indigent Defense, filed a Johnson petition for writ of certiorari on behalf of Petitioner, raising the following issue: whether the PCR judge "err[ed] in refusing to find counsel ineffective for failing to correct the discrepancy in the 20 yearsentence announced by the trial judge on the record and the 30 year sentence that appears on the sentencing sheet." (Dkt. No. 20-11 at 3 of 9.)² Thereafter, on June 11, 2008, Ms. Hudgins filed a Petition to Be Relieved as Counsel. (Dkt. No. 20-11 at 8 of 9.) On or about June 19, 2008, Petitioner filed...