Dewberry v. Burton, 5:21-1543-RMG-KDW

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
PartiesBernard Dewberry, Petitioner, v. Warden Charles Burton, Respondent.
Docket Number5:21-1543-RMG-KDW
Decision Date22 July 2022

Bernard Dewberry, Petitioner,

Warden Charles Burton, Respondent.

No. 5:21-1543-RMG-KDW

United States District Court, D. South Carolina

July 22, 2022



Bernard Dewberry (“Petitioner”) is an inmate at the McCormick Correctional Institution of the South Carolina Department of Corrections. He 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Cross Motions for Summary Judgment. On September 10, 2021, Respondent filed a Return and Motion for Summary Judgment. ECF Nos. 26. 27. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 28. Following the grant of an extension, ECF Nos. 31, 32, Petitioner filed a Cross Motion for Summary Judgment. ECF No. 43. Respondent filed a Response in Opposition to Petitioner's Motion on June 6, 2022. ECF No. 48.

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted, and Petitioner's motion for summary judgment be denied.

I. Factual and Procedural Background

Petitioner was indicted by the Spartanburg County Grand Jury in the August 2015 term of


court for murder and possession of a firearm during the commission of a violent crime. App. 368-69.[1]

On August 22-24, 2016, Petitioner appeared before the Honorable Roger L. Couch for a jury trial. App. 1 et. seq. Petitioner was represented by Assistant Public Defenders Andrea Price and James Cheek, and Assistant Solicitors Abel Gray and Allison Mabbs appeared on behalf of the State. Id. Following two days of trial, Petitioner indicated he wished to enter a negotiated guilty plea to voluntary manslaughter. App. 263-81. According to the facts presented by the solicitor, on May 19, 2015, officers responded to a call about a shooting. App. 281. When the officers arrived, they found the victim, Jerry Fernandez, lying on the street with a single bullet wound to the back. Id. While on the 911 call, the dispatcher asked the caller to ask the victim who shot him, and the victim identified Petitioner. Id. The victim was transported to the hospital where surgery was attempted, and the victim subsequently passed away. Id. During the course of the investigation, officers collected witness statements from persons who had been in the neighborhood earlier that day. Id. The investigators were able to conclude there had been two verbal altercations at the victim's home, which was located around the corner from where the victim was shot. Id. In the first altercation, Petitioner arrived at the victim's home and Petitioner and the victim began arguing over a woman. App. 282. The Petitioner left and returned with another person, Brio Means, and Petitioner and the victim began to argue again and the argument got heated. Id. Petitioner took his shirt off, and the victim went into his house and came out with a couple of knives. Id. Petitioner and Means left. Id. Ten to twenty minutes later, witnesses heard a gunshot and a scream for help


and found the victim in the street. Id. Petitioner eventually went to the Cowpens Police Department where he met with officers and gave multiple statements where he admitted to shooting the victim. App. 282-83. After the solicitor recited the facts of the case, Petitioner indicated the facts recited by the solicitor were substantially correct and that he still wished to plead guilty. App. 283-85. Petitioner entered a negotiated guilty plea to voluntary manslaughter and Judge Couch sentenced him to 25-years imprisonment. App. 284-85, 298.

Petitioner filed a notice of appeal that was dismissed by the South Carolina Court of Appeals (“Court of Appeals”) on November 14, 2016, for failure to provide a sufficient explanation to merit the appeal. ECF No. 26-3 at 1. Petitioner filed an application for post-conviction relief (“PCR”) on January 18, 2017, in which he alleged he was being held unlawfully due to ineffective assistance of counsel. App. 301-307. The State filed a return and partial motion to dismiss on July 25, 2017. App. 309-17. A PCR evidentiary hearing was held before the Honorable G. Thomas Cooper, Circuit Court Judge, on November 15, 2017. App. 319-53. Petitioner was present and represented by Attorney Rodney W. Richey, and Attorney Valerie Giovanoli appeared on behalf of the State. See Id. Petitioner and his trial counsel Andrea Leah Price testified at the hearing. Id. On January 24, 2018, Judge Cooper filed an order dismissing Petitioner's PCR application with prejudice, making the following findings of facts and conclusions of law:

This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has had the opportunity to observe the witnesses presented at the hearing, and has weighed their testimony and credibility accordingly. Below are the findings of fact and conclusions of law as required pursuant to S.C. Code Ann. §17-27-80 (2017). Applicant has failed to prove by a preponderance of the evidence that Counsel was deficient or that he was prejudiced by any deficiency. A Post-Conviction Relief application is not a venue for questioning each and every decision of trial counsel in hindsight. Rather, the Applicant must demonstrate by a preponderance of the evidence that trial counsel was deficient and that the deficiency prejudiced the
outcome of his trial. Applicant has failed to do so

I. Ineffective Assistance of Counsel

Applicant alleges he received ineffective assistance of counsel. In a PCR action, “[t]he burden of proof is on the Applicant to prove his allegations by a preponderance of the evidence. Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002) (citing Rule 71.1(e) SCRCP). Where ineffective assistance of counsel is alleged as a ground for relief, the Applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2051, 2064 (1984); Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985).

The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler, Id. The Applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). First, the Applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its “reasonableness under professional norms.” Cherry, 300 S.C. at 117 (citing Strickland). Second, counsel's deficient performance must have prejudiced the Applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18. With respect to guilty plea counsel, Applicant must show that there is a reasonable probability that, but for counsel's alleged errors he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

Mental Health Allegations

Applicant alleged Counsel was ineffective for failing to address Applicant's mental health at the time of the offense and for failing to request a mental evaluation prior to his trial/plea. Applicant vaguely referenced “mental health issues” he has dealt with since he was 15 years old, but failed to show what those issues were or how they affected him in either his commission of the crime or his ability to go forward with pre-trial hearings and his guilty plea. Additionally, this Court finds Counsel's testimony on the issue credible. She testified Applicant was very helpful and hands-on with his defense. She never had problems communicating and found Applicant to be very smart. She never felt any reason to seek an evaluation or grounds to pursue mental health as a defense. As such, Applicant has failed to meet his burden to prove Counsel was deficient or that he was prejudiced by any alleged deficiency with regard to his mental health allegations. Therefore, these allegations are denied and dismissed.

Toxicology Allegations
Applicant alleged Counsel was ineffective for failing to subpoena the victim's toxicology records and inform the court that both Applicant and the victim were under the influence of methamphetamine at the time of the killing. Counsel articulated reasons for not requesting a toxicology report and not presenting evidence of intoxication. First, she did not think Applicant's story of being high was one that would benefit him if presented to a jury. She did not think it would benefit him in sentencing either because Judge Couch has strong feelings against drugs. The intoxication was also not a defense to murder. Although Counsel conceded that generally intoxication can address the state of mind element of a self-defense claim, Counsel strongly believed Applicant's case was not a good case to pursue a defense of self-defense - because the medical reports showed the victim was shot in the back. This Court finds Counsel's decisions not to use intoxication as a defense or in mitigation to be a reasonable one based on professional judgment. Not only has Applicant failed to prove by a preponderance of the evidence that Counsel was deficient

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