Gaines v. Cothram, C/A No. 5:14-04652-JMC-KDW

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: Kaymani D. West United States Magistrate Judge
• Docket Number: C/A No. 5:14-04652-JMC-KDW
• Parties: Montavis Kentrail Gaines, #323168, Petitioner, v. Warden Richard Cothram, Respondent.
• Decision Date: 03 February 2016

Montavis Kentrail Gaines, #323168, Petitioner,
v.
Warden Richard Cothram, Respondent.

C/A No. 5:14-04652-JMC-KDW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

February 3, 2016

REPORT AND RECOMMENDATION

Petitioner Montavis Kentrail Gaines ("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 Petitioner's Motion for Default Judgment, ECF No. 20, and Respondent's Return and Motion for Summary Judgment, ECF Nos. 21, 22. On March 31, 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. 24. On July 2, 2015, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment after receiving a 60-day filing extension. ECF No. 37. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 22, be granted, and Petitioner's Motion for Default Judgment, ECF No. 20, be denied.

I. Background

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Petitioner is currently incarcerated in the Turbeville Correctional Institution of the South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 2006, Petitioner was indicted at the November term of the Saluda County Grand Jury for armed robbery (2006-GS-41-419), criminal conspiracy (2006-GS-41-420), and assault and battery with intent to kill (2006-GS-41-421). App. 311-16.¹ Attorney Michael Ray Ellisor represented Petitioner in a jury trial that convened from July 24-26, 2007, and Assistant Solicitors H. Franklin Young and Ervin J. Maye represented the State. App. 1. Petitioner was tried before the Honorable William P. Keesley. Id. After the trial, the jury found Petitioner guilty of armed robbery, criminal conspiracy, and the lesser-included offense of assault and battery of a high and aggravated nature ("ABHAN"). App. 208. Judge Keesley sentenced Petitioner to twenty-years imprisonment for the armed robbery conviction, five-years imprisonment for the criminal conspiracy conviction, and ten-years imprisonment for the ABHAN conviction. App. 209. The trial court ordered that the sentences run concurrent. App. 209.

Appellate Defender Katherine H. Hudgins represented Petitioner on direct appeal and filed an Anders² Brief on his behalf on July 21, 2008. ECF No. 21-3. In his Anders brief, Petitioner presented the following issue on appeal: "Did the judge err in allowing a police officer to testify that he recognized an individual in the videotape of a robbery as the appellant, Montavious [sic] Gaines, because the officer had contact with Gaines in the past?" Id. at 6, 8. In a pro se brief, Petitioner raised the following issues: "Did the trial court err in allowing the Solicitor to exercise a peremptory challenge in a discriminatory manner?" and "Did the trial court abuse its discretion in admitting identification testimony that was suggesting in nature and

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defective under Neil v. Bigers [sic]?" ECF No. 21-7 at 4-11. Additionally, Petitioner filed an amendment to his pro se brief and raised the following issue: "the trial court erred by failing to conduct a suppression hearing regarding the reliability of subjects allege show—identification that subject was never identified by the victim of the allege robbery-see transcript pages." ECF No. 21-8. The South Carolina Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished opinion filed October 2, 2009. ECF No. 21-3 at 15-16. On October 21, 2009, the Court of Appeals issued a Remittitur. ECF No. 21-9.

II. Procedural History

Petitioner filed an application for Post-Conviction Relief ("PCR") on November 6, 2009, (2009-CP-41-176), and asserted a general claim for "Ineffective Assistance of Trial Counsel." App. 212-17. Assistant Attorney General A. West Lee filed a Return on behalf of the State. App. 218-21. Subsequently, Richard G. Gleissner, Esquire, ("Attorney Gleissner") filed an Amended Application for PCR on Petitioner's behalf on March 16, 2010. App. 223-228. There, Petitioner expanded upon his general claim for ineffective-assistance-of-counsel and argued that trial counsel was ineffective because "he failed to discovery (sic) and disclose to the court and the jury an agreement between the State of South Carolina and [Jerome] Rhoads [the individual who allegedly conspired with Petitioner] in which Rhoads was to receive favorable treatment in exchange for his testimony against [Petitioner]." Id. at 223. Additionally, Petitioner argued that "the prosecution committed misconduct in failing to disclose the agreement between the prosecution and Rhoads for his testimony." Id. at 223-24.

A PCR hearing convened on January 31, 2012, before the Honorable Eugene C. Griffith, Jr. App. 236-289. Petitioner was present and represented by Attorney Gleissner and Assistant Attorney General Kaelon E. May appeared on behalf of the State. Id. Jerome Rhoads, Petitioner,

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Assistant Solicitor Young, and Assistant Solicitor Maye testified during the PCR hearing. Id. In an Order filed April 11, 2012, the PCR court denied Petitioner's PCR Application in full, making the following findings of fact and conclusions of law:

This Court has reviewed the testimony presented at the evidentiary hearing, observed the witnesses presented at the hearing, passed upon their credibility, and weighed the testimony accordingly. Further, this Court reviewed the Clerk of Court records regarding the subject convictions, the Applicant's records from the South Carolina Department of Corrections, the application for post-conviction relief, the transcripts and documents from the prior proceedings, the exhibits introduced into evidence at the hearing, and legal arguments of counsel. Pursuant to S.C. Code Ann. §17-27-80 (2003), this Court makes the following findings of fact based upon all of the probative evidence presented.

1. Ineffective Assistance of Counsel

At the PCR hearing Applicant withdrew his claim that counsel was ineffective for failing to object to the officer's testimony that he recognized Applicant by the way Applicant walked because of the officer's previous encounters with Applicant. The Applicant withdrew this claim based on the South Carolina Court of Appeals ruling in State v. Fripp, Op. No. 4928 (filed January 18, 2012). This Court finds that Applicant affirmatively waived said allegations set forth in his application at the PCR hearing. A waiver is a voluntary and intentional abandonment or relinquishment of a known right. Janasik v. Fairway Oaks Villas Horizontal Property Regime, 307 S.C. 339, 415 S.E.2d 384 (1992). Therefore, this allegation is denied and dismissed.

Applicant asserts that counsel was ineffective for failing to discover and disclose to the court and the jury an agreement between the state and Jerome Rhoads in which Rhoads was to receive favorable treatment in exchange for his testimony against Applicant. The record reflects that Mr. Rhoads testified at Applicant's trial that law enforcement did not make a deal with him and that Mr. Rhoads did not have any deal at that time. At the PCR hearing Mr. Rhoads testified consistent with his trial testimony that he did not have a deal with law enforcement or the solicitor's office in which he was to receive favorable treatment in exchange for his testimony against Applicant. Additionally, assistant solicitor Ervin Maye testified that he did not engage in any plea negotiations with Jerome Rhoads prior to or during Applicant's trial. Solicitor Maye testified that it is not unusual for a co-defendant, who testifies at trial, to later receive a lesser sentence. Solicitor Young testified that he did not make any offers or deals for Mr. Rhoads's testimony against Applicant with Mr. Rhoads prior to or during Applicant's trial. Solicitor Young testified that he has never in his tenure as a solicitor offered a deal to anyone prior [to] that person testifying at trial. This Court finds that Applicant has failed to present any evidence or offer any testimony supporting

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Applicant's allegation that the state had a deal in place with Mr. Rhoads for his testimony against Applicant prior to or during Applicant's trial. The Court finds that Applicant has failed to show that counsel's performance was deficient. Even, if this Court found counsel's performance deficient, Applicant cannot prove resulting prejudice as there is no evidence that Mr. Rhoads was given a deal by the state prior to or during Applicant's trial in exchange for his testimony. This Court finds that no deal between Mr. Rhoads and the state existed and that counsel cannot be held ineffective for failing to disclose and/or discover a deal that did not exist; therefore Applicant's allegations based on counsel's failure to discover a deal between the state and Mr. Rhoads are denied and dismissed.

Applicant asserts that counsel was ineffective for failing to object to the solicitor's closing statement. Specifically, Applicant directs this Court's attention to the statement that "Jerome Rhoads is gonna have to face his music and it's coming. Today Montavis Gaines is facing his music. We played his song." (Tr. p. 193, lines 3-4). The Applicant also directs this Court's attention to the statement that "Jerome Rhoads is a thug, Pure and simple. The man ...I don't have a problem with Mr. Ellisor calling him a career criminal. That's what he is." (Tr. p. 192, lines 7-13). The solicitor's closing arguments must be viewed in the context of the entire record. McLaughlin v. State, 352 S.C. 476, 575 S.E.2d 841 (2003). While the State's closing arguments must be confined to evidence in the record and the reasonable

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