Cooper v. Stevenson

• Decision Date: 22 January 2016
• Docket Number: C/A No. 0:15-554-PMD-PJG
• Court: U.S. District Court — District of South Carolina
• Parties: Duval Melvin Cooper, Petitioner, v. Warden Robert M. Stevenson, III, Respondent.

Duval Melvin Cooper, Petitioner, v. Warden Robert M. Stevenson, III, Respondent.

C/A No. 0:15-554-PMD-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

January 22, 2016

REPORT AND RECOMMENDATION

Petitioner Duval Melvin Cooper, 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. 24.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Cooper 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. 26.) Cooper filed a response in opposition to the respondent's motion. (ECF No. 29.) 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 Cooper's Petition denied.

BACKGROUND

Cooper was indicted in September 2005 in York County for trafficking in heroin and trafficking in methamphetamine (05-GS-46-3486, -3487). (App. at 165-68, ECF No. 25-1 at 167-70.) Cooper was represented by Vick Meetze, Esquire, and Gary Lemel, Esquire, and on February 15-16, 2006 was tried in absentia by a jury and found guilty as charged. (App. at 153, ECF No. 25-1 at 155.) The circuit court sealed Cooper's sentence. On May 20, 2010, Cooper appeared in the circuit court, at which time his sentence was unsealed. The circuit court sentenced Cooper to twenty-five years' imprisonment for trafficking in heroin, and twenty-five years' imprisonment for trafficking in methamphetamine, both sentences to be served concurrently. (App. at 160-61, ECF No. 25-1 at 162-63.)

Cooper timely appealed and was represented by Kathrine H. Hudgins, Esquire, of the South Carolina Commission on Indigent Defense, who filed a brief on Cooper's behalf that raised the following issue:

Did the judge err in refusing to direct a verdict of acquittal when the State failed to prove the knowledge element required to show constructive possession of controlled substances found in a duffle bag in the back of a van appellant was driving?

(ECF No. 25-3.) On August 1, 2012, the South Carolina Court of Appeals affirmed Cooper's conviction. (State v. Cooper, Op. No. 2012-UP-465 (S.C. Ct. App. Aug. 1, 2012), ECF No. 25-5.) The remittitur was issued on August 21, 2012. (ECF No. 25-6.)

Cooper filed a pro se application for post-conviction relief ("PCR") on September 7, 2012 in which he raised claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and that the trial court committed an error of law. (See Cooper v. State of South Carolina, 12-CP-46-3203; App. at 171-78, ECF No. 5-1 at 173-80.) Cooper included an attachment page that specified his claims as follows:

1. Ineffective Assistance of trial counsel for failing to object to trial in Absentee.

2. Ineffective Assistance of trial counsel for failing to move for a continuance to prevent a trial in Absentee.

3. Ineffective Assistance of trial counsel for failing to move for direct verdict concerning duffle bag containing drugs due to the fact that the vehicle was owned by another.

4. Ineffective Assistance of trial counsel for failing to conduct any pre-trial investigation and for failing to investigate third party guilt.

5. Ineffective Assistance of trial counsel for failing to move to quash the trafficking indictment based on the fact that joint occupancy alone cannot sustain the inference of dominion, control and knowledge.

6. Ineffective Assistance of trial counsel for failing to move for dismissal of charges due to the fact that the State could not establish a nexus between the defendant and the contraband based solely of defendant's mere presence.

7. Ineffective Assistance of Appellate counsel for failing to argue on appeal the issue of the trial proceeding in Applicant's absence. The record clearly demonstrates that the trial court failed to make a finding concerning whether or not Applicant was properly notified of the trial date, or that the Applicant received warning that the trial would proceed in his absence.

8. Ineffective Assistance of Appellate counsel for failing to file petition for rehearing before Court of Appeals. This denied Applicant a full "bite of the apple" thereby denying him due process.

9. Ineffective Assistance of Appellate counsel for failing to file a writ of certiorari to State Supreme Court. This denied Applicant a full "bite of the Apple" thereby denying him due process.

10. Trial court committed error of law by failing to make a finding on record that the Applicant had received notice of right to be present at trial and for failing to make a finding on record that the Applicant received warning that trial would proceed in his absence.

11. Applicant was denied his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and denied due process under the South Carolina Constitution by being denied the right to be present during the trial of his case.

12. Applicant was denied his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and denied his right to due process under the South Carolina Constitution by being denied the opportunity to exhaust every stage of the appellate process.

(Id., App. at 178, ECF No. 25-1 at 180.) The State filed a return. (App. at 179-83, ECF No. 181-85.) On May 16, 2013, the PCR court held an evidentiary hearing at which Cooper appeared and testified and was represented by Charles Brooks, Esquire. By order filed June 24, 2013 the PCR court denied and dismissed with prejudice Cooper's PCR application. (App. at 218-27, Supp. App. at 1, ECF No. 25-1 at 220-29, ECF No. 25-2 at 3.)

On appeal, Cooper was represented by Kathrine Hudgins, Esquire, of the South Carolina Commission on Indigent Defense, who filed a petition for a writ of certiorari that presented the following issue:

Did the PCR Court err in refusing to find counsel ineffective in failing to object to the trial in absentia and failing to move for a continuance when petitioner was not present for trial and the record does not support that petitioner had notice of his trial date?

(ECF No. 25-7.) The State filed a return. (ECF No. 25-8.) On September 24, 2014 the South Carolina Supreme Court issued an order denying Cooper's petition for a writ of certiorari. (ECF No. 25-9.) The remittitur was issued on October 10, 2014. (ECF No. 25-10.) This action followed.

FEDERAL HABEAS ISSUES

Cooper's federal Petition for a writ of habeas corpus raises the following issues:

Ground One: Trial Court (Error) of Denying Petitioner's Motion for Direct Verdict where State failed to prove (required) elements of charged offenses.

Supporting Facts: State (failed) to prove knowledge element required to show constructive possession of controlled substances found in duffle bag., The van was not Cooper's; The Duffle bag nor clothes were produced or taken into evidence to determine if clothing in, on, or around duffle bag were or could fit Cooper, establishing possible ownership, or offered possible DNA testing to either prove or eliminate Cooper as owner, since the van belonged to third party., The State's (sole) bases of connecting Cooper to the drugs in duffle bag, is the State's overly misrepresentation of Cooper's statement saying the girl definitely don't know anything about Drugs, but the State leaves out, is that Cooper also said, 'he did not know anything about the drugs either'.

Ground Two: Ineffective Assistance of Trial Counsel

Supporting Facts: Trial counsel failed to object to trial in absentee or ask for a continuance was ineffective under the circumstances, where counsel made (NO) attempts the week before and week of trial to see, if he could contact, locate, and notify Cooper of his trial and there was other possible means, such as speaking with bondsman, which lawyer, never attempted to do., as the trial record shows . . ., was ineffective and the state court findings on the issue were, clearly, in conflict with U.S. Supreme Court precident when it based it's decision on when Cooper was located after trial, requiring Cooper to prove prejudice, instead of the violation of Cooper's constitutional rights to effective assistance of counsel and rights to be present.

Ground Three: Denied Effective Assistance of Counsel during Jackson v. Denno suppression hearing, which is a critical stage.

Supporting Facts: Trial counsel was ineffective for failing to move for dismissal of all charges and suppression of all drugs, including marijuana, because officer conducting traffic stop, after receiving liscense and registration, saw a 'High Times Magazine', which is legal and sold in millions of stores, However, the officer used the magazine as probable cause to 'BEGIN' a search, officer then leaned in car, which constituted an INTRUSION because, the ashtray and alleged marijuana blunt was not visible to the officer from the outside of car, The officer's leaning into car conducting a search for ashtray, clearly exceeded scope of traffic stop and constituted an intrusion, violating Coopers rights. Magazine could not give officer-probable cause, search was unreasonable.

Ground Four: My constitutional right to be present at a crtical stage (The impannelling of jury) was violated and right to effective assistance of counsel at the critical stage of impannelling proceedings.

Supporting Facts: The Trial Judge violated Petitioner's rights to be present, when he 'BEGAN' the impannelling of the jury before completing the findings of fact to determine if Defendant could be located through bondsman and brought into court via bondsman., The judges reason for beginning the impannelling was, "free the jurors up some," thereby putting the jurors relaxation before p

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