Estrada v. Witkowski, Civ. A. No. 3:91-2113-3BD.

Decision Date10 March 1993
Docket NumberCiv. A. No. 3:91-2113-3BD.
Citation816 F. Supp. 408
CourtU.S. District Court — District of South Carolina
PartiesOrlando ESTRADA, Petitioner, v. Stanley WITKOWSKI and T. Travis Medlock, Attorney General of South Carolina, Respondents.

COPYRIGHT MATERIAL OMITTED

T. Travis Medlock, Donald J. Zelenka, Office of the South Carolina Atty. Gen., Columbia, SC, for petitioner.

Joseph W. Gibson, Jr., Miami, FL, Stephen J. Henry, Greenville, SC, for respondents.

GEORGE ROSS ANDERSON, Jr., District Judge.

This matter is before the court for review of the magistrate's Report and Recommendation made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 19.00 for the District of South Carolina.

The magistrate makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 554-55, 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, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).

This order addresses respondent's motion for summary judgment and to dismiss pursuant to Rule 12(b)(6) and 56(b) of the Federal Rules of Civil Procedure. The petitioner, Orlando V. Estrada, is presently confined at the Perry Correctional Institution of the South Carolina Department of Corrections, having been convicted of trafficking in cocaine, conspiracy, and carrying a firearm. The petitioner asserts that he was deprived of his right to effective assistance of counsel. Specifically, the petitioner contends that his trial counsel was incompetent, failed to engage in any discovery or investigation, failed to preserve issues for appeal, failed to interview or provide witnesses and was "totally unprepared with respect to the investigation and trial of Petitioner's cause, which was conducted in absentia."

BACKGROUND

The petitioner was indicted and tried for conspiracy to distribute crack cocaine, trafficking cocaine, and carrying a firearm. The petitioner contends that he failed to appear for his trial at the request of his trial attorney, Charles E. Smith. On December 5, 1988, the petitioner was convicted by a jury on all three charges and subsequently sentenced by the Honorable James E. Moore to twenty-five years and a $100,000 fine for trafficking in cocaine, ten years and a $12,500 fine for the crime of conspiracy, and one year for carrying a pistol. This conviction was not appealed.

On September 19, 1989, the petitioner filed an application for post-conviction relief (PCR)1. This application alleged that the petitioner was denied due process and effective assistance of counsel during his trial. On February 15, 1990, South Carolina Circuit Judge Daniel Laney held an evidentiary hearing to determine the merits of the petitioner's claims. The petitioner was present at this hearing and was represented by Stephen Henry, Esquire, of the Greenville County Bar. After hearing the parties' arguments and proffered testimony, Judge Laney entered an order on March 26, 1990 denying the application for PCR in its entirety.

The court concluded inter alia that the trial counsel's representation of the petitioner was effective. It is important to note, however, that the court's findings were based, at least in part, on the testimony of the petitioner's trial attorney, Charles E. Smith. Smith appeared as the state's only witness in the PCR hearing.

Following the denial of his PCR application, the Petitioner petitioned the South Carolina Supreme Court for certiorari to review the decision of the PCR judge. The petitioner was represented by Joseph W. Gibson, Esquire, of Miami, Florida in his petition. In support of certiorari, the petitioner alleged:

1. That the trial court proceeding in the absence of the defendant violated his due process rights;
2. That the defendant's trial counsel was ineffective inasmuch as:
"(a) Counsel was a witness against his client;
(b) Counsel totally failed to prepare for trial;
(c) That the trial performance of the trial counsel fell below the range of competence demanded of attorneys in criminal matters and performed below the wide range of reasonable professional assistance."

The respondents filed their Return on October 18, 1990 contending, among other arguments, that the petitioner's petition for certiorari should be dismissed for failure to comply with South Carolina Supreme Court Rule 50(9)(c)(i) requiring the petitioner to file and serve an appendix containing the transcript of the lower court proceedings. Supreme Court Rule 50(9)(c)(i) is now codified as Rule 227(e)(1) of the South Carolina Appellate Court Rules.

On November 13, 1990, the petitioner filed a motion to supplement the record on appeal, requesting that a wiretap recording of an alleged conversation between the petitioner and a cooperating witness/co-defendant be obtained from the Solicitor for Greenville County and made a part of the record on appeal. On November 26, the respondents filed a return to this motion, stating that the petitioner was still not in compliance with Supreme Court Rule 50(9) (S.C.Ap.Ct.R. 227). The return also objected to having the tape made a part of the record when the complete transcript of the lower court proceedings had not yet been filed. On January 10, 1991, the South Carolina Supreme Court denied the petitioner's petition and motion in the following one sentence Order: "The Petition for Writ of Certiorari and Motion to add to the record are denied."

The petitioner subsequently filed this petition for habeas under 28 U.S.C. § 2254 and the respondents filed their return and memorandum of law in support of summary judgment. The respondent's motion was argued before Magistrate Bristow Marchant on October 9, 1992 and a report recommending summary judgment was issued on October 27, 1992.

On December 21, 1992, the petitioner's trial attorney, Charles E. Smith, was disbarred by the South Carolina Supreme Court2. Smith's disbarment resulted from twenty-three separate incidents of unethical conduct. These ethical violations included twelve instances of grossly inadequate client representation and twenty-three incidents of flagrant dishonesty.

DISCUSSION OF LAW

It is well established that federal courts will not review a question of federal law decided by a state court if that decision relies on a state law ground that is both independent of the federal question and adequate to support the judgment. Coleman v. Thompson, ___ U.S. ___, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This general rule applies regardless of whether the state ground is substantive or procedural. Id. In addition, this doctrine is applicable to direct federal review of state court judgments and federal review of state prisoners' habeas corpus petitions alike. Id.

The Supreme Court has held that there is a conclusive presumption that no independent and adequate state ground exists when a state decision "fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and ... the adequacy and independence of any possible state law ground is not clear from the face of the opinion." Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). An omission of a clear expression that a state court decision is based on an adequate and independent state ground does not, in and of itself, create the presumption that the state court's decision was based on the merits of a petitioner's federal claims. Coleman, ___ U.S. at ___ ___, 111 S.Ct. at 2557-58, 115 L.Ed.2d at 660-61. Rather, the decision of the last state court to which the petitioner presented his federal claims must fairly appear to rest primarily on, or to be interwoven with, federal law. Coleman, ___ U.S. at ___, 111 S.Ct. at 2557-58, 115 L.Ed.2d at 660. Accordingly, the state supreme court's one sentence opinion denying certiorari, does not create a presumption that the court's decision relied on the merits of the petitioner's habeas claims. In fact, absent other considerations no conclusion can be drawn from such.

Where, however, as in the instant case, there has been one reasoned state judgment rejecting a federal claim, later unexplained orders that either uphold or reject that judgment are presumed to rest upon the same ground, absent "strong evidence" to the contrary. Ylst v. Nunnemaker, ___ U.S. ___, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Thus, if the earlier PCR opinion "fairly appears" to rest primarily on, or to be interwoven with, federal law and the adequacy and independence of any possible state law ground is not clear from the face of the opinion, this court must presume, absent "strong evidence" to the contrary, that the latest state court's decision was not based on an adequate and independent ground. In short, this court shall presume that there has been no procedural default on the part of the petitioner by failing to file the transcripts of the lower court proceedings.

This approach has been referred to as the "look through" doctrine and it was developed to deal with the reality that unexplained orders in essence say nothing. In other words, "a presumption that gives unexplained orders no effect — which simply `looks through' them to the last reasoned decision — most nearly reflects the role they are ordinarily intended to play." Ylst, ___ U.S. at ___, 111 S.Ct. at 2595, 115 L.Ed.2d at 717.

The court which heard the petitioner's application for PCR issued an order on March 26, 1990 denying the application in its entirety. This order expressly stated that petitioner's allegation of the state's violation of his due process rights was denied upon state procedural grounds. Consequently, this court has no jurisdiction to...

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