Credell v. Bodison, Civil Action No. 8:10–cv–18–RMG.

• Decision Date: 11 August 2011
• Docket Number: Civil Action No. 8:10–cv–18–RMG.
• Citation: 818 F.Supp.2d 928
• Court: U.S. District Court — District of South Carolina
• Parties: Cory T. CREDELL, Petitioner, v. Warden McKeither BODISON, Respondent.

818 F.Supp.2d 928

Cory T. CREDELL, Petitioner,

v.Warden McKeither BODISON, Respondent.

Civil Action No. 8:10–cv–18–RMG.

United States District Court, D. South Carolina, Anderson/Greenwood Division.

Aug. 11, 2011.

James Mixon Griffin, James M. Griffin Law Office, Richard A. Harpootlian, Richard A. Harpootlian PA, Columbia, SC, for Petitioner.

Brendan McDonald, Office of the Attorney General, Donald John Zelenka, SC Attorney General's Office, Columbia, SC, for Respondent.

ORDER

RICHARD MARK GERGEL, District Judge.

This Petition comes before the Court pursuant to 28 U.S.C. § 2254. In accord with 28 U.S.C. § 636(b) and Local Rule 73.02, S.S.C., this matter was referred to United States Magistrate Judge Bruce Howe Hendricks. Judge Hendricks issued to the Court a Report and Recommendation recommending that the Petition for Writ of Habeas Corpus be granted. (Dkt. No. 39.) Respondent opposes the grant of the Writ.

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the Court may accept, reject or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).

The Court, after a careful review of the record before the State trial court and the State post-conviction proceeding and application of controlling legal standards set forth in statutory and case law, grants the Petition for Writ of Habeas Corpus in part and denies the Petition in part. As set forth more fully below, the Court finds, notwithstanding the utilization in tandem of the highly deferential standards for review under 28 U.S.C. § 2254(d) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that the State trial court counsel committed a series of acts and omissions which were significantly outside the “wide range of professionally competent assistance”. Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. 2052. The Court finds that in one of these areas of professionally deficient performance—relating to informing and counseling the Petitioner regarding the decision to testify and, if so, the scope of that testimony—resulted in actual prejudice to the Petitioner so great that it “upset the adversarial balance between defense and prosecution that the trial was rendered unfair and verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). The Court further concludes that the State PCR court's finding that the profoundly deficient performance by trial counsel was actually part of a professionally reasonable trial strategy was “based on an unreasonable application of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Having concluded that it is “reasonably likely” that State trial counsel's errors affected the outcome of Petitioner's trial, the Court grants the Writ conditionally to provide the State with adequate time to decide whether to retry the Petitioner. Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011); Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052.

Background

Around noon on September 30, 1998, two men entered the home of Trevor “Peter” Jefferson and his girlfriend, Shiwanna Mazyck, located on Nonnie Curve Road in Orangeburg County. (App. 55, 90–91, 182–83.) Jefferson, Mazyck, and her three children were home at the time. (App. 56, 91.) Mazyck was coming out of the bathroom into the hallway with one of her children when the men entered. (App. 93; 114; 117.) One of the men placed a gun to her head and ordered her to lie down on the floor. Id. Mazyck testified that the second man, who had dreadlocks, covered Mazyck's head with a pillow and held her down on the floor. (App. 93–94.) Mazyck testified she saw him face to face “for a good minute.” (App. 118; 120.) While held to the floor by the second man, Mazyck heard the first man walk to the bathroom, ask Jefferson his name and fire three shots. (App. 93.) Immediately after the shots were fired, the men fled the home. (App. 95–96.) Jefferson died as a result of the gunshot wounds. (App. 173–74).

When initially speaking with police, Mazyck did not tell the police that she recognized the man who held her down. (App. 105; 183.) But some time later, Mazyck informed investigators that the second man who held her down looked familiar though she did not know him by name. (App. 98, 183.) Then, on October 6, 1998, Mazyck identified the Petitioner as the perpetrator by picking his photo out of a photo lineup. (App. 99; 188.) At trial, Mazyck identified the Petitioner as the second man and she testified that she had seen the Petitioner at her house with Jefferson about two or three months prior to Jefferson's murder. (App. 95; 99–100.)

A school bus driver, Jerlein Goodwin (“J. Goodwin”), stated that she saw a burgundy car with Florida license tags on Nonnie Curve Road at approximately 12:20 p.m. on the day of the shooting. (App. 133–34.) The bus driver also stated that she saw two black men standing beside the rear of the car. (App. 134–35.) A teachers' aide, Dorothy Goodwin (“D. Goodwin”), was also on the bus that day. (App. 144.) She stated that she also saw the burgundy car and there was one man in the car and two black men standing by the car. D. Goodwin stated that the two men standing by the car had on black clothing and one of the men had short dreadlocks which were sticking out of his hood. (App. 144, 147.) She testified that the man had shorter dreadlocks than the Petitioner had at the time of the trial. (App. 147–48.) She also stated that the man with the dreadlocks had something long in his hand, which, she believed, could have been a gun. (App. 145.) Neither of the Goodwins could positively identify or exclude the Petitioner as one of the two men they saw that day. (App. 135, 147–48).

Based on the information provided by the Goodwins and other persons regarding the possible ownership of the car, law enforcement officers went to the home of Ronald Duggins where they found a burgundy Dodge Spirit with Florida tags. (App. 184–85, 194, 187.) The Sheriff's investigator, David Coleman, testified that Duggins stated that he had given a person named “Cory” a ride on the day of the murder. (App. 192.) Duggins stated he did not know “Cory's” last name but that the Sheriff's Department had “Cory's” picture. Id. Coleman testified he looked through the photos beginning with the letter “A” looking for any “Corys”. (App. 192–93.) Investigator Coleman testified that he came upon a photo of Petitioner, Cory Credell, in the course of this search, who fit the general description of the suspect including the presence of dreadlocks. Coleman then compiled a photo-lineup from which Mazyck subsequently identified Petitioner. (App. 193.) Later, Duggins also picked the Petitioner out of the photo lineup. (App. 349.)

At trial, Duggins was called by the defense. He testified that he had known the Petitioner for several years and that he, the Petitioner, Jefferson, and Mazyck were all friends. (App. 330; 332; 349.) Duggins testified that the burgundy car spotted on Nonnie Curve Road had been rented by his cousin. (App. 335.) He testified that he was driving the car on Nonnie Curve Road on the day of the shooting and two men flagged him down. (App. 340–41.) Duggins testified that he told the police the men's names were “Cory” and “Vick,” but he later admitted that he made up the names in an attempt to secure a personal recognizance bond. (App. 340, 342.) Duggins testified he was not specifically referring to the Petitioner and that he knew the Petitioner's first and last name. (App. 340.) Duggins testified he identified the Petitioner in the photo line-up because Coleman told him that Mazyck had already identified the Petitioner. (App. 349.) He testified he lied when he initially identified the Petitioner. (App. 346; 350.)

In 1998, six fingerprints were lifted from the car and in January 2001, it was determined that the one of the prints, a partial print from the outside rear door on the driver's side door, matched the Petitioner's fingerprints. (App. 256; 259–60; 266; 269; 275.) The murder weapon was never found and no physical evidence was discovered at the murder scene. The shooter has never been identified.

Petitioner was indicted in August and November 2000 for murder and robbery. (App. 688–91.) Because the public defender had a conflict in the case, the Orangeburg County Clerk of Court appointed Jane Berry Osborne (hereafter referred to as “trial counsel”) to represent the Petitioner from a list of attorneys licensed to practice in Orangeburg County. (App. 558.) Trial counsel had never previously tried a criminal case and her sole experience in the criminal arena had been to participate in a guilty plea in a DUI case. (App. 560.) Her professional experience was primarily limited to a bankruptcy and family law practice. (App. 559.) Further, despite her lack of experience in the area of criminal law, trial counsel did not ask the Court to appoint a more experienced counsel to replace or assist her and did not seek the assistance of other counsel at trial. (App. 625–27.)

The jury trial began on May 15, 2001, with the Honorable Luke N. Brown presiding, and was concluded on May 17, 2001, when the jury returned a verdict of guilty on both charges. Petitioner was then sentenced to two life sentences to be served concurrently. (Supp. App. II 32, 37.) He timely filed a direct appeal.

On appeal, the Petitioner was represented on appeal by Joseph L. Savitz, III. On June, 18, 2002, Savitz filed an Anders brief raising the following issue: “The judge erred by allowing...