Cook v. Warden of Broad River Corr. Inst.

• Decision Date: 14 July 2016
• Docket Number: C/A No. 0:15-2987-JFA-PJG
• Court: U.S. District Court — District of South Carolina
• Parties: Darryl T. Cook, Petitioner, v. Warden of Broad River Correctional Institution, Respondent.

Darryl T. Cook, Petitioner, v. Warden of Broad River Correctional Institution, Respondent.

C/A No. 0:15-2987-JFA-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

July 14, 2016

REPORT AND RECOMMENDATION

Petitioner Darryl T. Cook, a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 19.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Cook was advised of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 20.) Cook filed a response in opposition to the respondent's motion (ECF No. 35), the respondent replied (ECF No. 37), and Cook filed a sur-reply¹ (ECF No. 41). Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondent's motion for summary judgment should be granted and Cook's Petition denied.

BACKGROUND

Cook was indicted in January 2002 in Fairfield County for armed robbery and grand larceny (2002-GS-20-132). (App. at 1315-16, 1321-22; ECF No. 18-5 at 318-19, 324-25.) Cook wasadditionally indicted in November 2002 in Fairfield County for murder (2002-GS-20-546). (App. at 1310-11, ECF No. 18-5 at 313-14.) During January 2006 in Fairfield County, Cook's indictments were amended. (App. at 1308-09, 1313-14, 1319-20; ECF No. 18-5 at 311-12, 316-17, 322-23.) Cook was represented by Jack B. Swerling, Esquire, and on October 15-23, 2007 was tried by a jury and found guilty as charged. (App. at 1055, ECF No. 18-5 at 58.) The circuit court sentenced Cook to forty-five years' imprisonment for murder, twenty-five years' imprisonment for armed robbery, and five years' imprisonment for grand larceny, all sentences to be served concurrently. (App. at 1075, ECF No. 18-5 at 78.)

Cook timely appealed and was represented by Robert M. Dudek, Esquire, of the South Carolina Commission on Indigent Defense, who filed an Anders² brief on Cook's behalf that raised the following issue:

Whether the court erred by allowing evidence appellant, as a thirteen-year-old child, stole money from a gas station in 1996, where the murder occurred at the gas station five years later, since this incident was too remote in time to the 2001 murder, its unduly prejudicial effect outweighed its probative value under Rule 403, SCRE and it had the very real tendency to confuse the jury?

(ECF No.18-7.) Cook filed a pro se response to the Anders brief in which he raised the following arguments, quoted verbatim:

I. Appellant contends that the testimony of Robert McDuffie and Anthony Green should have been stricken from the record.

II. Did counsel for Appellant neglect to cross-examing expert witness deny this Appellant effective assistance of counsel?

III. Did the trial judge err by allowing the playing of video tape known to have been tampered with by the decease's daughter?

(ECF No. 18-10) (errors in original). On January 25, 2010, the South Carolina Court of Appeals dismissed Cook's appeal. (State v. Cook, Op. No. 2010-UP-023 (S.C. Ct. App. Jan. 25, 2010), App. at 1078-79, ECF No. 18-5 at 81-82.) The remittitur was issued February 10, 2010. (ECF No. 18-11.)

Cook filed a pro se application for post-conviction relief ("PCR") on November 8, 2010 in which he raised the following claims, quoted verbatim:

(a) Ineffective Assistance of Counsel

Counsel refused to subpoena witness on my behalf. Counsel refused to asked questions I wanted him to.

(b) Insufficientt Evidence to Support the Murder

The trial judge allowed evidence that didn't pertain to the actually crime to be used as evidence to gain a conviction

(c) Exclusion of Relevant Evidence

The presiding trial judge refused to let certain statements that could have been extremely creditable on my behalf for a new trial.

(See Cook v. State of South Carolina, 2010-CP-20-453; App. at 1080-86, ECF No. 18-5 at 83-89.) The State filed a return. (App. at 1087-91, ECF No. 18-5 at 90-94.) Cook, through counsel Glenn E. Bowens, Esquire, filed an amended PCR application on July 15, 2013 in which he raised the following claims:

(a) Counsel refused to subpoena witnesses on my behalf.

(b) Counsel did not object to comments and instructions given by the trial judge to the jury when the jury came back indicating they were deadlocked.

(c) Counsel did not object to the trial judge sending the jury back to deliberate after the jury indicated they were deadlocked a second time.

(d) Counsel did not assert as a defense that Mr. McGuirt's death, which occurred over a year after the shooting, was due to the negligent medical care he received.

(App. at 1093, ECF No. 18-5 at 96.) On August 7, 2013, the PCR court held an evidentiary hearing at which Cook appeared and testified and continued to be represented by Glenn Bowens, Esquire. The PCR court held the record open for sixty days to allow for deposition testimony and further briefing. By order filed April 14, 2014, the PCR court denied and dismissed with prejudice Cook's PCR application. (App. at 1294-307, ECF No. 18-5 at 297-310.)

On appeal, Cook was represented by Carmen V. Ganjehsani, Esquire, with the South Carolina Commission on Indigent Defense, who filed a Johnson³ petition for a writ of certiorari that presented the following issue:

Whether the PCR court erred in finding that trial counsel provided effective assistance of counsel where trial counsel failed to preserve for appellate review an objection to the Trial Court's unconstitutionally coercive Allen^[] charge?

(ECF No. 18-13.) On May 7, 2015, the South Carolina Supreme Court issued an order denying Cook's petition for a writ of certiorari. (ECF No. 18-14.) The remittitur was issued on May 26, 2015. (ECF No. 18-15.) This action followed.

FEDERAL HABEAS ISSUES

Cook's federal Petition for a writ of habeas corpus raises the following issues, quoted verbatim:

Ground One: Trial counsel provided effective assistance of counsel where trial counsel failed to perserve for appellate review an objection to the trial court's unconstitutionally coercive Allen charge.

Supporting Facts: The jury initially returning from deliberations and announcing they were deadlocked. The jury returned a second time indicating they were still deadlocked, at 7 to 5, and the trial then gave a coercive Allen charge. Twenty to twenty-five minutes later the jury returned with a guilty verdict. The jurors, Charles Walker, Teresa Kennedy, and Raymond Pearson, gave evidence they were coerced and pressured into a verdict that evening by the trial judge's coercive Allen charge, even though they personally never thought Darryl Cook committed the murder.

Ground Two: Appellant contends that the testimony of Robert McDuffie and Anthony Green should have been stricken from records, since both parties trial testimony were inconsistent and far-fetched.

Supporting Facts: The declarants in this case, Anthony Green and Robert McDuffie statements should not have been allowed as evidence presented to the jury. The declarants testimony were heresay and does not meet any exceptions to the heresay exceptions. The declarants committed perjury by fabricating events that did not occur. These fabrications did prejudice the defendant because the declarants' testimony heavily influenced the jurors' determination in rendering a guilty verdict thereby denying defendant of a constitutional fair trial under the U.S. Constitution

Ground Three: Counsel for petitioner neglect to cross expert witness which denied this applicant effective assistance of counsel

Supporting Facts: Counsels' failure to cross-examine Dr. Thomas, or to secure an independent medical expert, in order to clarify to the jury that the infection and medication reaction is the cause of death that killed the victim, and this stemmed from the malfunctioning catheter medical device which is independent, seperate and apart from the gunshot wound the victim sustained. Counsel's failure is not reasonable trial strategy and deprived the defendant rebuttal defenses at trial.

Ground Four: Trial judge erred by allowing playing of video tape known to have been tampered with by the decease's daughter

Supporting Facts: The Petitioner's Due Process rights and rights to a fair trial were violated when an unauthenticated and altered videotape was admitted into the trial as evidence to prove elements alledged in the indictment. The videotape was unconstitutionally used as evidence of prior bad acts, as character evidence, asidentity evidence, as absence of mistake, and as motive evidence when such videotape actions were those of a child and are irrelevant and does not meet any constitutional evidence exceptions.

Ground Five: The court erred by allowing evidence of appellant, as a thirteen-year-old child, stole money from a gas station in 1996, where the murder occured at the gas station five years later, since this incident was too remote in time to the 2001 murder, it's unduly prejudicial effort outweighed it's probative value Rule 403, SCRE and it had the very real tendency to confuse the jury.

Supporting Facts: Petitioner's Due Process right and rights to a fair trial were violated when evidence of appellant, as a thirteen-year old child stole money from a gas station in 1996, was unconstitutionally used as evidence of prior bad acts, as character evidence, as identity evidence, as absence of mistake evidence, and as motive evidence where no foundation was laid by the prosecution to sustain the admittance under any exceptions of the rules of evidence. Its admissions were irrelevant and prejudicial and outweigh any probative value such that it infringed on Petitioner right to fair trial and Due Process under the U.S. Constitution.

Ground Six: Trial counsel ineffective for failing to perserve for review the issue of

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