Cabbagestalk v. McFadden, : 5:14-cv-03771-RMG-KDW

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Decision Date08 June 2015
Docket NumberNo.: 5:14-cv-03771-RMG-KDW,: 5:14-cv-03771-RMG-KDW
PartiesShaheen Cabbagestalk, #295567, Petitioner, v. Warden J. McFadden, Respondent.

Shaheen Cabbagestalk, #295567, Petitioner,
Warden J. McFadden, Respondent.

No.: 5:14-cv-03771-RMG-KDW


June 8, 2015

Report and Recommendation

Petitioner Shaheen Cabbagestalk ("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. 70, 71. On February 17, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 74. Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment on March 4, 2015. ECF No. 84. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 71, be granted.

I. Background

Petitioner is currently incarcerated in the Lieber Correctional Institution of the South Carolina Department of Corrections ("SCDC"). In March 2007, Petitioner was indicted by a

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Dillon Grand Jury for Assault and Battery with Intent to Kill ("ABWIK") (2007-GS-17-0363), and one count of Armed Robbery (2007-GS-17-0364). App. 625-26.1 On August 27-28, 2007, Petitioner proceeded to a jury trial before the Honorable Howard P. King. App. 19-138. Attorney Glenn Manning represented Petitioner, and Assistant Solicitors Kinard Redmond and Lee Hayes appeared on behalf of the State. Id. During the testimony of State's witness Officer Barfield, Petitioner passed a written note to Attorney Manning indicating that he reached a decision not to go forward and wanted to plead guilty. App. 109. Petitioner then pleaded guilty to the armed robbery charge, and the State dismissed the ABWIK charge. App. 113, 118. Judge King sentenced Petitioner to eighteen years imprisonment for the armed robbery conviction. App. 133.

Attorney Manning timely sought a direct appeal of the conviction and sentence on Petitioner's behalf. ECF No. 70-5. Appellate Defender Katherine H. Hudgins represented Petitioner on appeal and briefed the following issue pursuant to Anders v. California, 386 U.S. 738 (1967): "Did the judge err in amending the indictment by changing the name from James Cabbagestalk to Shaheen Ramel Cabbagestalk?" ECF No. 70-5. Petitioner also filed a pro se Brief and argued that police, judges and solicitor violated his 4th, 5th, 6th, 8th, and 14th Amendment rights. ECF No. 70-9. Specifically, Petitioner contended that the warrants issued did not meet Fourth Amendment requirements and maintained that nothing in the police report contained his name. Id. at 8. Petitioner also asserted the speedy trial motion was granted without his consent and he was compelled and coerced into going to trial. Id. at 9. Additionally, Petitioner argues that his trial counsel was focused on a funeral he had recently attended and not on Petitioner's trial causing him to receive ineffective assistance of trial counsel. Id. Petitioner

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further argued he was never indicted and his plea was unintelligent, unknowing, and involuntary. Id. at 10. Petitioner maintained the trial judge erred in amending the indictment over Petitioner's objection. Id. at 10-11. Petitioner also appeared to have contended a plea agreement was breached based on the sentence he received. Id. at 12. On November 19, 2009, the South Carolina Court of Appeals dismissed Petitioner's appeal and granted Attorney Hudgin's motion to be relieved as counsel. ECF No. 70-11. On December 3, 2009, Petitioner filed a letter with the South Carolina Court of Appeals that was treated as a Petition for Rehearing. ECF No. 70-12. The South Carolina Court of Appeals denied the Petition for Rehearing on January 21, 2010. ECF No. 70-13. On February 25, 2010, the South Carolina Court of Appeals issued a Remittitur. ECF No. 70-14.

II. Procedural History

On March 9, 2010, Petitioner filed an Application for Post-Conviction Relief ("PCR") alleging, verbatim,

prosecutor misconduct/judical[sic] misconduct/lack of notice of charge/Never been indicted/never been indicted by 12 legal grand jurors/illegal grand jury proceedings/South Carolina Rules of Criminal Procedure/unwanted jurors in jury room/no grand jury transcript/Miranda Warning/ Brady v. Maryland Rule 5/S.C. Code of Laws 14-7-1700, 14-4-1770, 14-7-1720/no preliminary hearing/no bond hearing by magistrate judge/no subject matter jurisdiction; no general jurisdiction/not indicted within 90 days of the warrant being issued in accordance with statute; registration books requirement violated for electing jurors/ineffective assistance of trial counsel/ineffective assistance of appellant counsel; Section 14-7-110. Jury commissioners; 22-5-320. Code of Laws of South Carolina (1976) denied a full preliminary hearing; mere presence charge denied hands of one is hands of all; 16-11-330(A) violated as to parole eligibility after (7) years Judge said I'm not 2 eligible for parole See Major v. SCDPPPS Aug. 29th 2009; erroneous judgement/Book of Registration Requirements not followed/misidentification: Constitutional Right's violated 4th, 5th, 6th, 14th, 1st, -Hand of one of all violated; violated OP.21.09 Inmate records plan policy of SCDC Invalid Commitment Order: can't accept person for bedding or house/S.C. Code Section 14-17-530(2) requires the Clerk of Court to mark each original indictment with the date it was filed violated S.C. Rules of Court/life, liberty

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property/violated 72 ALR 4th 874 right to fingerprint expert[;] Rule 801 Inconsistent testimony.

App. 142-43. As facts supporting each ground set out, Plaintiff indicated: "Constitutional common law/S.C. Rules of court and criminal procedures, Court transcript, Exhibits, facts, me and prison I.D., witnesses, cases, S.C.D.C. policy/op-21.09 Inmate Records plan, Recent cases overturned or dismissed do to same violations in this case that holds me falsely imprisoned." Id. at 143.

On May 21, 2010, the State filed a Return and requested an evidentiary hearing. App. 170-175. An evidentiary hearing was conducted before the Honorable J. Michael Baxley on May 15, 2012. App. 217. Petitioner was present and represented by Heather M. Cannon, Esq., and Assistant Attorney General J. Andrew Johnson represented the State. Id. Petitioner, witness James Cabbagestalk, and Petitioner's plea attorney Glenn Manning testified at the hearing. App. 218.

In an Order filed June 6, 2012, the PCR court denied Petitioner's PCR Application in full, making the following summary of evidence and 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 PCR 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.

Ineffective Assistance of Plea Counsel

In a PCR action, "[t]he burden of proof is on the applicant to prove his allegations by a preponderance of the evidence." Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002) (citing Rule 71.l(e), SCRCP). Where ineffective assistance of counsel is alleged 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."

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Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692 (1984); Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985).

The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler, Id. Applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).

First, Applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its "reasonableness under professional norms." Cherry, 300 S.C. at 117. 385 S.E.2d at 625 (citing Strickland, supra). Second, counsel's deficient performance must have prejudiced 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186; 480 S.E.2d 733, 735 (1997) (citing Strickland). 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 pled guilty and would have insisted on going to [or continuing with] trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985).

To find a guilty plea is voluntarily and knowingly entered into, the record must establish the applicant had a full understanding of the consequences of his plea and the charges against him. Boykin v. Alabama, 395 U.S.

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