REPORT AND RECOMMENDATION Petitioner Richard Deas ("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. 25, 26. On November 3, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 27. On January 20, 2016, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 36. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 25, be granted.
Petitioner is currently incarcerated in the Lee Correctional Institution ("LCI") of South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 2003, Petitioner was indicted at the April term of the Charleston County Grand Jury for murder (2008-GS-10-3339) and possession of a firearm during the commission of a crime of violence (2008-GS-10-3340). App. 883-88.1 Assistant Public Defenders Mary Ford and Andrew Grimes represented Petitioner in a jury trial that convened from January 26-30, 2009, and Assistant Solicitors Jennifer Shealy and Christopher Neely represented the State. App. 1. Petitioner was tried before the Honorable Deadra L. Jefferson. Id. After the trial, the jury found Petitioner guilty of all charges. App. 714-15. Judge Jefferson sentenced Petitioner to 40-years imprisonment for the murder conviction and five-years imprisonment for the possession of a firearm conviction. App. 728. Judge Jefferson ordered the sentences run concurrently.
Chief Appellate Defender Robert M. Dudek represented Petitioner on appeal and briefed the following issue:
The trial court erred by admitting a taped conversation of appellant from the county jail wherein he stated the seized gun was not the murder weapon since this was not relevant, and it was unduly prejudicial pursuant to Rule 403, SCRE especially where the state admitted it wanted this evidence before the jury so it could infer that appellant knew the seized gun was not the murder weapon because he knew where the murder weapon was located since this highly prejudicial evidence had the very real tendency to mislead and confuse the jury.
App. 730-745. Assistant Attorney General J. Anthony Mabry filed a Response Brief on behalf of the State. 746-81. On November 21, 2012, the South Carolina Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished opinion. App. 782-84. On December 7, 2012, the South Carolina Court of Appeals issued a Remittitur. App. 785.
Petitioner filed an application for Post-Conviction Relief ("PCR") on April 22, 2013 (2013-CP-10-2306). App. 786-92. Petitioner asserted the following allegations, recited verbatim, regarding his claims:
a) Ineffective assistance of trial counsel.
b) Ineffective assistance of appellate counsel.
App. 788. Petitioner asserted the following facts in support of his claims:
a) Failure to conduct an independent investigation and review evidence with Applicant.
b) Failure to advise Applicant regarding possible defenses.
c) Failure to utilize defense witnesses.
Id. A Return was filed on behalf of the State on December 5, 2013. App. 793-97. A PCR hearing convened on April 17, 2014, before the Honorable R. Markley Dennis. App. 799-866. Petitioner was present and represented by Attorney Rodney Davis; Assistant Attorney General Ashleigh R. Wilson appeared on behalf of the State. Id. Petitioner and trial counsel testified as witnesses during Petitioner's PCR hearing. Id. In an Order filed July 16, 2014, the PCR court denied Petitioner's PCR Application in full, making the following findings of fact and conclusions of law:
ALLEGATIONS
In his application, the Applicant alleges he is being held in custody unlawfully for the following reasons:
1. Ineffective assistance of counsel.
a. Failure to conduct an independent investigation and review evidence with Applicant.
b. Failure to advise Applicant regarding possible defenses.
c. Failure to utilize defense witnesses.
2. Ineffective assistance of appellate counsel.
At the hearing, Applicant proceeding solely on the following allegations of ineffective assistance of trial counsel and appellate counsel:
1. Ineffective assistance of trial counsel.
a. Failure to investigate crime scene or question witnesses.b. Failure to investigate or present an alibi witness.
c. Failure to request a mistrial or object to early jury deliberation when the jury asked about receiving a copy of the trial transcript during trial.
d. Failure to request a mistrial or have the court properly question a juror who was related to the victim.
e. Failure to obtain the written transcript of the jail tapes and share with the Applicant.
f. Failure to call an expert witness on identifications.
2. Ineffective assistance of appellate counsel.
a. Failure to raise the issue of a juror being related to the victim's family on appeal.
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 and arguments presented at the PCR hearing. This Court has further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon their credibility. This Court has weighed the testimony accordingly.
Set forth below are the relevant findings of fact and conclusions of law as required by S.C. Code Ann. Sec. 17-27-80 (2003).
Summary of the Testimony
The Applicant was present at the hearing and testified he was convicted of murder and possession of a weapon during the commission of a violent crime. The Applicant testified he was represented by Mary Ford and Andrew Grimes at trial and by Robert Dudek on appeal. The Applicant testified he met with Ford frequently and met Grimes the week of trial. He testified he reviewed the discovery materials with counsel and did not recall discussing possible defenses with counsel.
The Applicant testified Ford did not properly investigate his case. He testified Ford did not go to the crime scene to check the visibility of the scene at night. He testified she never provided him with any information about her investigation of the scene. The Applicant also testified trial counsel did not investigate his alibi witnesses. He testified counsel did not discuss an alibi defense with him and she told him he had no defense. The Applicant testified he did not discuss investigating Sandra Green or Tiana Lee with trial counsel. He testified he wanted to call Lee because she would have testified he was with her the night of the murder.
The Applicant testified two witnesses identified him as the shooter. He testified the witnesses were brought to the police by the victim's father. The Applicanttestified counsel never questioned the witnesses about how they came to speak with police. He testified further counsel did not question Shrod Young about his bias.
The Applicant testified counsel also did not get transcripts of his recorded jail phone conversations. He testified he made a statement about police not having the murder weapons during a jail phone conversation. He testified he did not have the call transcripts until after trial. He testified that if he had the call transcripts prior to trial he would have felt more comfortable taking the stand to testify at trial.
The Applicant testified his blood sample was submitted for DNA testing and found not to match any evidence. The Applicant testified the SLED DNA person was not present to testify at trial. He testified counsel failed to present evidence that his DNA did not match at trial.
He testified the jury asked the court about receiving a copy of the trial transcript during trial. The Applicant testified counsel did not object to this request as early deliberation by the jury. He testified further a juror was excused because he was related to the victim. The Applicant testified counsel did not have the juror properly questioned and did not question the juror one on one. The Applicant testified counsel should have asked for a mistrial based on these juror issues.
Lastly, the Applicant testified he wanted appellate counsel to argue on appeal the issue with the juror being related to the victim. He testified appellate counsel told him he felt comfortable with the arguments he presented in his brief.
Also present was Mary Ford, Esquire. Counsel testified she has been practicing law as a public defender for over eight years. She testified she was appointed to represent the Applicant shortly after his arrest in October 2007. Counsel testified her notes reflect she met with the Applicant at least twelve times prior to trial. Counsel testified she filed Brady and Rule 5 motions on the Applicant's behalf and reviewed the materials received with the Applicant in detail.
Counsel testified she discussed with the Applicant the elements of the charges he was facing and what the State had to prove. She testified she discussed with the Applicant his version of the facts and he gave her Dixon, Lee, and Williams as potential witnesses. Counsel testified the Applicant spoke with police after arrest and told them he was with his girlfriend Shanique Williams the night of the murder and that he was with Lee and Dixon prior to that. Counsel testified they discussed presenting an alibi defense at trial. She testified she spoke with Lee and Dixon who said the Applicant was with them, but left at some point and they were unsure when
...
