Davis v. Warden of Perry Corr. Inst.

• Decision Date: 26 February 2021
• Docket Number: C/A No.: 5:20-cv-02674-RMG-KDW
• Parties: Donquavious DaShon Davis, Petitioner, v. Warden of Perry Correctional Institution, Respondent.
• Court: U.S. District Court — District of South Carolina

Donquavious DaShon Davis, Petitioner, v. Warden of Perry Correctional Institution, Respondent.

C/A No.: 5:20-cv-02674-RMG-KDW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ORANGEBURG DIVISION

February 26, 2021

REPORT AND RECOMMENDATION

On July 20, 2020, Donquavious DaShon Davis ("Petitioner") filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On October 6, 2020, Respondent filed a Return and Motion for Summary Judgment. ECF Nos. 20, 21. Petitioner filed a timely Response on November 5, 2020. ECF No. 25.

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 Motion for Summary Judgment. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 21, be granted.

I. Background

The following facts are summarized from Petitioner's guilty plea and are uncontested. See App. 46-52.¹ On June 29, 2014, Petitioner, out driving with some friends, spotted his ex-girlfriend's car at a mutual friend's house. Petitioner exited the car with a firearm, knocked on a sliding glass door at the house, and shot the person who answered—his ex-girlfriend's boyfriend, Shantario McCoy. Mr. McCoy died from his injuries.

On November 6, 2014, the York County Grand Jury indicted Petitioner for murder (Indictment No. 2014-GS-46-3509) and possession of a weapon during the commission of a violent crime (Indictment No. 2014-GS-46-03509a). App. 192-93. In addition, Petitioner was indicted for first-degree burglary (Indictment No. 2014-GS-46-03510). App. 190-91. Petitioner was represented by Assistant Public Defender Phil Smith ("Plea Counsel") and Chief Public Defender Harry Dest. App. 1, 30.

On July 1, 2015, Petitioner appeared before the Honorable Daniel D. Hall, Circuit Court Judge, for a plea hearing. App. 28. At that time, Petitioner waived presentment of the first-degree burglary charge to the Grand Jury. App. 30. Petitioner admitted he shot the victim but asserted he did so from outside the house. App. 53-54. Accordingly, Judge Hall accepted Petitioner's plea as to the murder and weapons charges but allowed Petitioner to enter an Alford² plea on the burglary charge. App. 55-58. On July 13, 2015, Petitioner appeared before the Honorable John C. Hayes, III, Circuit Court Judge, for sentencing. App. 61. Judge Hayes sentenced Petitioner to 40 years for first-degree burglary and concurrent sentences of 30 years for voluntary manslaughter and five years for the weapons charge. App. 101, 194-96.

On July 21, 2015, Plea Counsel filed a timely notice of appeal and Rule 203(B) Explanation. ECF No. 20-2. The South Carolina Court of Appeals dismissed Petitioner's appeal on October 23, 2015 and issued the remittitur on December 8, 2015. App. 103-04.

Petitioner filed a pro se application for post-conviction relief ("PCR") on August 18, 2016, raising the following grounds for relief:

Ineffective Assistance of Counsel

1. Failed to investigate the main elements of the case:

A. The elements of the gun found at the crime scene chain of custody and/or the disappearance of

B. Why was the gun at the crime sceneC. The fact that the house did not belong to the person indicated on the warrant

D. Proper evidence to prove that a burglary was not committed in this case/incident

E. Did not question witnesses to whether statements would have been material to defendant's defense and/or innocence

2. Failed to give sufficient advice to Defendant - Counsel advised defendant to plea instead of going to trial and challenging:

A. Fraudulent warrants and indictments

B. The elements of murder and burglary

C. All evidence and representation of the innocence of the Defendant

3. Failed to challenge and/or object to the Courts to elicit whether defendant committed every element of crime - Defendant made a statement about self-defense, but the court failed to go into further detail of the mentioning of this defense to see whether his plea was involuntary

4. Failed to challenge the State's evidence produced at defendant's plea sentencing -

A. A statement by Mercedes Bland was produced at the plea sentencing defendant did not have knowledge of this statement and therefore did not have time to prepare a defense for this statement

B. There was evidence presented at the plea sentencing which was completely unknown to the defendant and critical this was information about a weapon. Defendant did not have time to prepare for the new information.

Prosecutorial Misconduct

1. Failed to disclose sufficient/material evidence that was relevant to a lesser offense - A gun was found at the scene of the crime that was not placed into evidence or was suppressed which could have rendered the plea of self defense

2. Prosecutor made improper comment about evidence or his testimony was false - Prosecutor introduced evidence about a weapon that can not be proven by any legal documents or testimony

3. Failed to produce evidence used in defendant's guilty plea to the defendant - A statement was produced on the day of defendant's guilty plea therefore denying defendant the right to prepare a defense

Trial Court Error

1. Failed to elicit whether defendant committed every element of the crimes - Defendant indicated that because of the circumstances he could not plea self-defense, but no one questioned defendant to find out whether defendant was making this plea voluntarily/actually committed the crimes as charged/warranted

App. 112-13. On April 16, 2018, after briefing by the State, the Honorable Roger E. Henderson, Circuit Court Judge, convened an evidentiary hearing on the matter. App. 123. Petitioner was represented at the hearing by Jeremy A. Thompson ("PCR Counsel") and presented testimony fromhimself, Plea Counsel, and the prosecutor, Assistant Solicitor Walter William Thompson. App. 123-24. At the hearing, PCR Counsel informed the court Petitioner was proceeding on one allegation: "ineffective assistance of counsel for failing to effectively completely advise [him] of his ability to present a defense of self-defense if he went to trial." App. 127. Judge Henderson denied Petitioner's application on November 19, 2018, after considering only that issue. App. 173. PCR Counsel filed a timely notice of appeal. ECF No. 20-3.

On July 10, 2019, Appellate Defender Joanna K. Delany perfected the appeal through a Johnson³ petition for a writ of certiorari presenting the following issue:

Whether the PCR court erred when it found counsel provided effective representation where there was evidence that counsel did not discuss the applicability of self-defense, since petitioner said he only shot the decedent because he thought the decedent was going to shoot him first?

ECF No. 20-4 at 3. On May 1, 2020, Petitioner filed a pro se response to the petition and raised the following issues, which he contended were raised during the PCR hearing, but not ruled on in the order of dismissal:

Defendant's guilty plea was involuntary d[ue] to failure by the government to preserve/disclose material exculpatory evidence which compromised defense counsel's ability to provide effective assistance of counsel.

Plea Counsel failed to advise defendant of an Alford's [sic] Plea or any pleas dealing with maintaining innocence.

This Issue Below PCR Counsel failed to raise which was on PCR Application: Defendant's guilty plea counsel was ineffective for failing to disclose material exculpatory evidence.

ECF No. 20-5 at 1-2. The South Carolina Supreme Court transferred the matter to the Court of Appeals, which denied certiorari on June 17, 2020. ECF No. 20-6. The remittitur issued on July 7, 2020. ECF No. 20-7.

II. Standard of Review

A. Summary Judgment

The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials"; or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

B. Habeas Corpus

1. Generally

Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),...