Brown v. Wise, C. A. 5:21-1890-HMH-KDW

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtKAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Docket NumberC. A. 5:21-1890-HMH-KDW
PartiesDeonte Steven Brown, Petitioner, v. Samuel Wise, Warden Respondent.
Decision Date16 February 2022

Deonte Steven Brown, Petitioner,
v.

Samuel Wise, Warden Respondent.

C. A. No. 5:21-1890-HMH-KDW

United States District Court, D. South Carolina

February 16, 2022


REPORT AND RECOMMENDATION

KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE

Deonte Steven Brown (“Petitioner”) is a state prisoner who filed this counseled 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. 11, 12. On September 7, 2021, the court granted Petitioner an extension to respond to Respondent's Motion, ECF No. 14, and Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment on September 15, 2021, ECF No. 15. Respondent filed a Reply on September 22, 2021. ECF No. 16.

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment be granted, and this Petition be denied.

I. Background

Petitioner is currently incarcerated in Lee Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the February 2013 term of the Charleston County Grand Jury on attempted murder (2013-GS-10-00535), possession of firearm during the commission of a violent crime (2013-GS-10-005356), and murder (2013-GS-10-00537).

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App. 551-67.[1] Petitioner proceeded to a jury trial on September 15-19, 2014, before the Honorable Roger M. Young, Sr., Circuit Court Judge. App. 1 et. seq. Petitioner was represented by James Smiley, Esquire, and Laree Hensley, Esquire, and Assistant Solicitors Stephanie Linder and Jessica Baldwin represented the State. App. 1. The jury found Petitioner guilty as indicted. App. 477. Judge Young sentenced Petitioner to 50 years imprisonment. App. 490. Petitioner did not file a direct appeal. App. 734.

II. Procedural History

Petitioner filed an Application for Post-Conviction Relief (“PCR”) on July 15, 2015 (2015-CP-10-3935). App. 569-76. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of counsel and actual conflict of interest. App. 571, 575-76. Petitioner filed an amended PCR Application on July 28, 2017, alleging additional ineffective assistance of counsel claims. App. 583-85. A PCR motion hearing convened August 7, 2017, before the Honorable Michael G. Nettles, Circuit Court Judge. App. 587-701. Petitioner was present and represented by Attorney Tommy Thomas, and Attorney Julie Coleman appeared on behalf of the State. See Id. Petitioner and his trial counsel James Smiley appeared and testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application and granted Petitioner a belated appeal in an order filed on September 26, 2017, 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 further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility and weigh their testimony accordingly. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. Code Ann. §17-27-80 (1985)

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BELATED REVIEW OF DIRECT APPEAL ISSUES

Applicant alleges Trial Counsel failed to file an appeal as requested. The testimony presented at the evidentiary hearing clearly shows that Trial Counsel intended to file and perfect a direct appeal, but the appeal was somehow dismissed before it was perfected. This Court agrees that Applicant did not waive his right to a direct appeal. In the absence of an intelligent waiver by the defendant, counsel must either initiate an appeal if requested or comply with the procedure required by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). Where the post-conviction relief judge determines that the applicant did not freely and voluntarily waive his appellate rights, the applicant may petition the South Carolina Supreme Court for review of direct appeal issues pursuant to White v. State. See Rule 227(g) (1), SCACR; Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).

This Court affirmatively finds Applicant did not knowingly and voluntarily waive his right to a direct appeal. The Court concludes that Applicant is entitled to a belated review of his convictions. A petition for belated review pursuant to White v. State can remedy Applicant's lack of a direct appeal. Therefore, relief for this allegation is granted.

INEFFECTIVE ASSISTANCE OF COUNSEL

Applicant has asserted several allegations of ineffective assistance of counsel. This Court finds these claims to be meritless and they should be denied and dismissed with prejudice. This Court finds Trial Counsel's representation did not fall below the standards of professional norms in any manner. Based on the testimony presented and the record before the court, this Court finds Trial Counsel's representation was not ineffective in any regard.

Failure to investigate

Applicant alleges Trial Counsel was ineffective for failing to investigate facts that prejudiced him at trial. This allegation is meritless and must be denied.

“[C]riminal defense attorneys have a duty to undertake a reasonable investigation, which at a minimum includes interviewing potential witnesses and making an independent investigation of the facts and circumstances of the case.” Walker v. State, 397 S.C. 226, 235, 723 S.E.2d 610, 615 (Ct. App. 2012). Failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to result. Porter v. State, 368 S.C. 378, 385-86, 629 S.E.2d 353, 357 (2006) (citing Moorehead v. State, 329 S.C. 329, 334, 496 S.E.2d 415, 417 (1998)). In any ineffectiveness case, a particular decision not to investigate must be directly

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assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Wiggins v. Smith, 539 U.S. 510, 521-22 (2003).

Trial Counsel testified at the evidentiary hearing that he investigated all the discovery in this case, but he did not have funding for a full investigation outside the discovery. Still, he stated he did what needed to be done on his own, and he was very prepared for trial. He stated he received statements from the witnesses, and he chose not to interview these witnesses, because he liked their first statement and did not want to add any contradicting testimony. This Court finds Trial Counsel made a valid strategic decision not to interview the State's witnesses in this case because he had statements from each of them that he thought were helpful to his case. If any witness strayed from the testimony in their statement at the trial, Trial Counsel used their statements to cross-examine and impeach their credibility. This Court finds neither prong of the Strickland test is met, and these allegations are denied and dismissed with prejudice.

1. Detective Lawrence's relationship with Derrick Brown's mother

Trial Counsel was not deficient for failing to investigate the relationship between Derrick Brown's mother and Detective Lawrence because he did, in fact, investigate and know about this relationship. Applicant, his mother, and Trial Counsel all testified that this relationship was common knowledge. Applicant has failed to present any valid, credible or admissible information to prove the existence of this relationship or how it would have changed the outcome of the trial. Accordingly, he has failed to meet his burden of proving either prong of the Strickland test.

2. Chavis Heyward

Trial Counsel opined at the evidentiary hearing that in hindsight, he should have talked to Chavis Heyward, because he was unaware that Investigator Barfield was going to testify about his interview with Heyward until right before the trial. Trial Counsel stated that Barfield's testimony was a surprise to some degree, but he knew about it before the trial. He opined that if he had spoken with Heyward before trial, he would have known about the interview with Barfield. However, he stated that he objected to Barfield's testimony and he argued his objection to the trial court, but was overruled.

This Court finds Trial Counsel was not deficient for failing to interview Heyward before the trial because an interview likely would not have revealed the information about Heyward's interview with Investigator Barfield. Furthermore, there is no prejudice from Trial Counsel's failure to interview Heyward because the testimony from Investigator Barfield regarding his discussions with Heyward were found admissible by the trial court and would have been allowed in regardless of Trial Counsel's knowledge of it. In fact, Trial Counsel testified that he did know

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about the testimony of both these witnesses prior to trial, so he was prepared to handle it. Trial Counsel objected to Investigator Barfield's testimony, he argued his objection to the trial court, and the trial court overruled his objection. There is nothing else Trial Counsel could have done that would have changed the testimony of this witness. Furthermore, Applicant has failed to meet his burden of proving that either of these witnesses' testimony would have changed the outcome of the trial, so there can be no prejudice.

3. Waffle House Waitress April Blodgett

April Blodgett worked at the Waffle House on the night of the crime and gave a statement to law enforcement as an eyewitness to the events. At trial, Blodgett testified that she saw the gun come out of a red sleeve, but she didn't tell anyone in law enforcement about it...

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