Hagood v. Cartledge

• Decision Date: 15 November 2016
• Docket Number: Civil Action No.:2:15-cv-04163-RBH-MGB
• Court: U.S. District Court — District of South Carolina
• Parties: John Allen Hagood, #123067, Petitioner, v. Larry Cartledge, Warden, Respondent.

John Allen Hagood, #123067, Petitioner, v. Larry Cartledge, Warden, Respondent.

Civil Action No.:2:15-cv-04163-RBH-MGB

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

November 15, 2016

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 12; see also Dkt. No. 11.)

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.

The Petitioner filed the instant action on October 2, 2015. (See Dkt. No. 1 at 14 of 15; see also Dkt. No. 1-2.) On April 4, 2016, Respondent filed a Motion for Summary Judgment. (Dkt. No. 12; see also Dkt. No. 11.) By order filed April 4, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 13.) On or about June 17, 2016, Petitioner filed a Response in Opposition to the Motion for Summary Judgment, to which Respondent filed a Reply. (See Dkt. No. 23; Dkt. No. 24.)

PROCEDURAL HISTORY

The Petitioner is currently confined within the South Carolina Department of Corrections ("SCDC") at Perry Correctional Institution. In May of 2010, the Greenville County Grand Jury indicted Petitioner for first-degree burglary and grand larceny, third property offense. (R. at 274-77.) Petitioner was represented by Amanda Lackland, Esquire. (See R. at 1.) Petitioner proceeded to a jury trial before the Honorable C. Victor Pyle, Jr. on February 9, 2011. (R. at 1-224.) On February 9, 2011, the jury convicted Petitioner as charged. (R. at 218.) Judge Pyle sentenced Petitioner to life without parole¹ on the conviction for burglary and to ten years on the conviction for grand larceny. (R. at 222.)

Petitioner appealed and was represented by Elizabeth A. Franklin-Best, Esquire. (See Dkt. No. 11-3.) On February 22, 2011, Petitioner filed a Final Brief of Appellant, wherein he raised the following issue:

Did the trial court judge err when he allowed the state to introduce a statement made by Hagood, purporting to be a "confession" to the crimes, when Hagood neither reads nor writes well, law enforcement failed to audio or videotape the interview, and when the state did not meet their burden to show that the statement was given knowingly and voluntarily?

(Dkt. No. 11-3 at 4 of 12.)

In an unpublished opinion filed on July 11, 2012, the South Carolina Court of Appeals affirmed the decision of the lower court. (See Dkt. No. 11-4.) The court found the issue raised was not preserved for review because a ruling on a motion in limine is not final, and "unless an objection is made at the time the evidence is offered and a final ruling procured, the issue is not preserved for review." (Dkt. No. 11-4 at 2 of 2.) The matter was remitted to the lower court on July 27, 2012. (Dkt. No. 11-5.)

On August 29, 2012, Petitioner filed an application for post-conviction relief ("PCR"). (R. at 225-32.) The following questions and answers appeared in his PCR application (verbatim):

10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:

Ineffective Assistance of Counsel

11. State concisely and in the same order the facts which support each of the grounds set out in (10):

Counsel failed to argue correct probable cause for traffic stop. Counsel failed to hire hand writing expert to prove of confession and Miranda signatures were false

(R. at 227.)

On June 21, 2013, through Caroline Horlbeck, Esquire, Petitioner amended his PCR application to include the following allegations of ineffective assistance of counsel:

1. Counsel was ineffective by allowing the State to introduce an involuntary statement by Applicant purporting to be a confession to the crimes and failing to object to the admission of same;

2. Counsel was ineffective by failing to put the State's case through adversarial testing;

3. Counsel was ineffective by failing to challenge probable cause in Applicant's case;

4. Counsel was ineffective by failing to preserve Applicant's Fourth Amendment issue for appeal;

5. Appellate counsel was ineffective in that counsel raised an issue that was not preserved for appeal;

6. Counsel was ineffective by failing to argue section 17-25-45 violated the Equal Protection Clause;

7. Counsel was ineffective by failing to argue that the discretion given to the Solicitor's Office by Section 17-25-45 regarding service of Notice of Intent to Seek Life Without Parole is arbitrary and capricious;

8. Counsel was ineffective by failing to request a jury instruction that Applicant faced a mandatory sentence of Life Without Parole;

9. Counsel was ineffective by failing to argue that his 6th Amendment Rights were violated in that he was not advised of the possibility of Life Without Parole at the time of his prior conviction;

10. Counsel was ineffective by failing to argue that Applicant's conviction and sentence are in violation of the U.S. Constitution and laws of the State of South Carolina[; and]

11. Counsel was ineffective by failing to object to the use of his prior unclassified convictions to enhance his sentence to Life Without Parole[.]

(Dkt. No. 11-6.)

On December 17, 2013, Petitioner-through Attorney Horlbeck-amended his PCR application once more, adding the following allegations:

1. Counsel was ineffective in that Counsel failed to adequately and effectively argue that Applicant's statement was not knowingly and voluntarily made;

2. Counsel was ineffective in that Counsel failed to preserve Applicant's objection to the introduction of Applicant's statement during the trial of this case;

3. Counsel was ineffective in that Counsel failed to adequately and effectively challenge the existence of reasonable suspicion to stop Applicant and probable cause to arrest Applicant;

4. Counsel was ineffective in that Counsel failed to make a Motion to Suppress;

5. Counsel was ineffective in that Counsel failed to request that the Court instruct the jury that Applicant faced a sentence of Life Without Parole if convicted at trial; [and]

6. Counsel was ineffective in that Counsel failed to argue that Applicant was not informed of LWOP eligibility by previous attorneys[.]

(Dkt. No. 11-7.)

On December 17, 2013, an evidentiary hearing was held before the Honorable G. Edward Welmaker. (R. at 238-64.) Petitioner was present and represented by Caroline Horlbeck, Esquire. (See R. at 238.) In an order dated January 30, 2014, Judge Welmaker denied the application for post-conviction relief and dismissed the petition. (R. at 265-73.)

Petitioner appealed, and on July 8, 2014, through Attorney Robert M. Pachak of the South Carolina Commission on Indigent Defense, he filed a Johnson Petition for Writ of Certiorari. (Dkt. No. 11-9.)² Therein, Petitioner raised the following issue:

Whether defense counsel was ineffective in failing to adequately convey the dangers of proceeding to trial with an automatic life without parole sentence should he be found guilty as opposed to accepting a guilty plea offer with a sentence of twenty-five (25) years?

(Dkt. No. 11-9 at 3 of 10.) Mr. Pachak also filed a petition to be relieved as counsel. (Dkt. No. 11-9 at 9 of 10.)

In an order dated October 23, 2014, the Supreme Court of South Carolina denied the petition for a writ of certiorari and granted counsel's request to withdraw. (Dkt. No. 11-10.) The matter was remitted to the lower court on November 10, 2014. (Dkt. No. 11-11.)

Petitioner then filed the instant habeas petition, wherein he raised the following grounds for review (verbatim):

GROUND ONE: Ineffective Assistance of Counsel Regarding Self-Incrimination in Violation of U.S. Const., Amend(s) V & VI

Supporting facts: Because Petitioner's case dealt primarily with the voluntariness of his alleged written confession, trial counsel's performance was deficient by failing to obtain a handwriting analyst as [an] expert witness to challenge law enforcement's assertion that Petitioner signed and initialed [the] statement typed by police.

GROUND TWO: Search and Seizure Violation Due to Lack of Probable Cause for Traffic Stop; U.S. Const., Amend. IV

Supporting facts: Although, prior to trial, counsel challenged law enforcement's alleged probable cause for traffic stop, trial court erred in ruling there was sufficient probable cause for stop because evidence showed no moving violation could have occurred since there was no stop sign upon road Petitioner's car was traveling; officer's allegation was that Petitioner ran a stop sign.

GROUND THREE: Ineffective Assistance of Counsel by failing to object and preserve issue for appeal; U.S. Const., Amend. VI

Supporting facts: Although trial counsel moved for Jackson v. Deno hearing in limine, counsel failed to preserve the issue for appellate review by failing to make contemporanious objection when Petitioner's alleged confession was entered into evidence later during trial.

(Dkt. No. 1 at 5-8 of 15.)

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). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's...