Eppenger v. McFadden

• Decision Date: 31 July 2014
• Docket Number: C/A 2:13-1958-TMC-WWD
• Court: U.S. District Court — District of South Carolina
• Parties: Stanley Eppenger, Petitioner, v. Joseph McFadden, Respondent.

Stanley Eppenger, Petitioner, v. Joseph McFadden, Respondent.

C/A 2:13-1958-TMC-WWD

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

July 31, 2014

REPORT AND RECOMMENDATION

The Petitioner, Stanley Eppenger, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment filed on December 16, 2013. (Dkt. 16, 17).

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.

Eppenger brought this habeas corpus action on July 17, 2013. (Dkt. 1). Respondent moved for summary judgment and by order filed on December 17, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Eppenger was advised of the summary judgment dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt.18). Eppenger moved before the court for additional time to respond three (3) times, which motions were granted. On June 5, 2014, the matter was assigned to the undersigned, and on June 27, 2014, Eppengerfiled his response in opposition to the Respondent's summary judgment motion. Hence, it appears appropriate to consider the motion.

PROCEDURAL HISTORY

The Petitioner, Stanley Eppenger, # 298136, is presently housed at Tyger River Correctional Institution, a facility of the South Carolina Department of Corrections, pursuant to orders of commitment of the Beaufort County Clerk of Court¹. Eppenger was indicted at the January 2003 term of the Beaufort County Grand Jury for assault and battery of a high and aggravated nature (ABHAN) (2003-GS-07-81), criminal sexual conduct (CSC)-1st degree (2003-GS-07-83), and kidnapping (2003-GS-07-84). Eric Erickson, Esquire, represented Eppenger. On November 17-21, 2003, Eppenger proceeded to trial, after which the jury found him guilty as indicted. The Honorable Jackson V. Gregory sentenced him to confinement for twenty-six (26) years each for CSC-1st degree and kidnapping and ten (10) years for ABHAN. The sentences were to run concurrently.

A timely Notice of Appeal was filed on Eppenger's behalf and an appeal was perfected. Robert M. Dudek of the South Carolina Office of Indigent Defense filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) on August 15, 2005. In theFinal Anders Brief of Appellant, counsel Dudek asserted as the sole arguable ground: Whether the court erred by allowing testimony about a prior volatile sexual encounter appellant had since it was irrelevant to the issue of whether the alleged victim in the case consented? (Final Anders Brief of Appellant, p. 3). The South Carolina Court of Appeals dismissed Applicant's appeal. State v. Eppenger, Op. No. 2006-UP-090 (S.C.Ct. App. filed February 14, 2006). The Remittitur was issued on March 3, 2006.

STATE PCR PROCEEDINGS

Eppenger made an application for post-conviction relief (PCR) filed March 10, 2006. App.p. 353. The Respondent made its Return on June 16, 2006. An evidentiary hearing into the matter was convened on September 3, 2009, at the Beaufort County Courthouse before the Honorable Alexander S. Macaulay, presiding judge. The Petitioner was present at the hearing and was represented by Donald Colongeli, Esquire.

Eppenger alleged he was being held in custody unlawfully for the following reasons:

1. Ineffective assistance of trial counsel in that counsel:

a. Failed to engage in valid plea negotiations.

b. Failed to object to trial court's charge that constructively amended the kidnapping indictment.

c. Conceded Applicant's guilt during closing argument.

d. Failed to object when judge impermissibly commented on facts of Applicant's case while giving examples to the jury during his charge.

e. Failed to adequately prepare or spend enough time with Applicant.

f. Did not hire a private investigator or an expert witness.

g. Did not request Jackson v. Denno hearing.

h. Did not make directed verdict motion.

i. Did not review discovery material with Applicant.

j. Did not provide mitigation during sentencing.

2. Ineffective assistance of appellate counsel in that counsel failed to raise a meritorious issue on appeal.

Eppenger testified on his own behalf at the PCR hearing, along with trial counsel. The PCR Court had before it the records of the Beaufort County Clerk of Court, Eppenger's records from the South Carolina Department of Corrections, the Record on Appeal and Supplemental Record on Appeal, the direct appeal records, the PCR application and Eppenger's pro se brief, and Respondent's Return thereto. On October 22, 2009, Judge Macaulay entered his written order of dismissal. App.p. 473-481.

Eppenger made a timely appeal from the denial of PCR relief to the Carolina Supreme Court in which he was represented by Joseph L. Savitz, Senior Appellate Defender of the South Carolina Division on Appellate Defense. On October 18, 2010, he made a Petition for A Writ of Certiorari on the merits raising the following issue:

I. Appellate counsel failed to provide petitioner effective assistance, in violation of Smith v. Robbins, 528 U.S. 259 (2000), and Bennett v. State, 383 S.C. 303, 680 S.E.2d 273 (2009), by failing to raise on direct appeal the trial judge's supplemental charge on the immaterial relationship between the allegations of the indictment and the State's evidence at trial and that the criminal sexual conduct charge "did occur."

Petition for Writ of Certiorari, p, 2.

On September 8, 2012, the South Carolina Court of Appeals entered its order denying the petition for writ of certiorari. Stanley Eppenger v. State of South Carolina, Appellate Case No. 2009-148808 (S.C. Ct. App. September 8, 2012) (order denying certiorari). The remittitur was issued on September 27, 2012.

Eppenger's habeas corpus petition raised the following claims:

I. Trial counsel was ineffective for failing to object to the trial court's charge that constructively amended the kidnapping charge.a. Trial court charges the jury the element of knowingly and knowledge for the indictment in the instant case omitted any reference to these elements. A trial judge could not amend the indictment (set forth by the grand jury itself)., either by striking or adding material language. These theories are not fairly embraced in the charges made in the indictment.

II. Trial counsel was ineffective for conceding petitioner's guilt to the jury during closing arguments, that was to be determined by the jury.

a. Trial counsel overrode petitioner's plea of not guilty and told the jury that there was no doubt that his client was in fact guilty, thus telling the jury that they should find the petitioner guilty and not feel bad about it. The petitioner pled not guilty, so that puts the burden on the state to prove the defendant's guilt.

III. Trial counsel was ineffective for not objecting when the judge commented upon facts in this case during jury instructions.

a. The trial judge in his jury instructions to the jury reflected facts of the petitioner's case in such a seminal way that these instructions , in effect were an impermissible comment of the facts of the case.

IV. Appellate counsel was ineffective for failing to raise a meritorious issue that was properly preserved for appellate review.

a. Appellate counsel cannot provide an explanation of the claims omission and its failure to be appealed was prejudicial to the applicant; for even the trial court suggested that this issue needed to be passed on as a m atter of law by the higher court.

APPLICABLE LAW

Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "Facts are 'material' when they might affect the outcome ofthe case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).

Habeas Standard of Review

Since Eppenger filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir.1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:

1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding.

28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 398 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 410. "A state court's...