Holley v. Padula

• Decision Date: 19 July 2012
• Docket Number: Civil Action No. 5:11-1814-CMC-KDW
• Parties: Russell L. Holley, #286362, Petitioner, v. Anthony J. Padula, Warden, Respondent.
• Court: U.S. District Court — District of South Carolina

Russell L. Holley, #286362, Petitioner,

v.Anthony J. Padula, Warden, Respondent.

Civil Action No. 5:11-1814-CMC-KDW

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

Dated: July 19, 2012

REPORT AND RECOMMENDATION

Petitioner, Russell L. Holley ("Petitioner" or "Holley"), a state prisoner, 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 Respondent's 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. Petitioner filed a response in opposition to Respondent's motion. 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. 26, be granted.

I. Factual Background

Petitioner was indicted by the York County Grand Jury during the March 2002 term of court for Murder (#2002-GS-46-0698) and Assault and Battery of a High and Aggravated Nature ("ABHAN") (#2002-GS-46-0700) relating to the stabbing death of his long-time girlfriend,Sylvia Floyd ("Victim"). App. 539-42.¹ On August 5-7, 2002, a jury trial was conducted before the Honorable Lee S. Alford in York, South Carolina. App. 1-407. Attorney Adrian E. Cooper represented Petitioner, and Assistant Solicitors Daniel Hall and Phil Smith represented the State. App. 1. Petitioner was convicted on both charges, receiving a sentence of life without parole on the murder charge and ten years concurrent on the ABHAN charge. App. 397-98, 406-07.

II. Procedural History

After trial counsel timely filed and served the notice of appeal, Petitioner, represented by Robert M. Dudek, Esq., of the South Carolina Office of Appellate Defense, filed an Anders² brief arguing that "the judge erred by refusing to charge involuntary manslaughter where he reasoned self-defense and involuntary manslaughter were always mutually exclusive legal concepts, and where there was evidence the appellant was defending himself against the decedent and evidence the decedent may have been accidentally stabbed with the knife she was wielding during her fight with the appellant." Supp. App. 14-26. Thereafter, and pursuant to the Anders procedure, Petitioner submitted a pro se brief asserting the following issues: (1) "[t]rial [j]udge err[ed] in not granting [d]efense motion for a direct[ed] verdict of guilty of murder and ABHN in that the State failure in its whole case to establish any elements of the charge of murder and ABHN[;]" (2) "[a]ppellant should be granted a new trial on the basis that the that (sic) chain of custody of the items taken from Appellant for blood test was fatally defective in the processing of these items[;]" (3) "[a]ppellant should be granted a new trial on the basis on the fact that [a]ppellantwas not charge[d] with the use of a deadly weapon but the use of a weapon was included in the [j]udge's instruction on the malice charge[;]" and (4) "[t]he trial [c]ourt erred by failing to grant the defense's motion to have the ABHAN charge severed from the charge of murder." ECF No. 27-8.

On September 16, 2004, the South Carolina Court of Appeals dismissed Petitioner's appeal, and pursuant to Anders, granted appellate counsel's petition to be relieved. Supp. App. 13. Petitioner filed a Petition for Rehearing, Supp. App. 3-12, that the Court of Appeals denied on November 18, 2004, Supp. App. 2. The remittitur was issued on December 28, 2004. Supp. App. 1. Petitioner failed to seek discretionary review to the South Carolina Supreme Court.

On February 25, 2005, Petitioner filed an application seeking post-conviction relief ("PCR"). App. 409-50. In his application, Petitioner argued he was entitled to relief on the following grounds:

Issue A: Did the trial court lack subject matter jurisdiction due to the fatal variance between the evidence produced at trial and the allegations of the indictment for murder?

Issue B: Was defense counsel ineffective in failing to move to suppress the White-T-Shirt involved in this case?

Issue C: Was defense counsel ineffective in failing to strike two jurors for cause? (Jurors Nos. 164 and 189)?

Issue D: Was defense counsel ineffective in failing to object to inflammatory and prejudicial opening statements by the Solicitor?

Issue E: Was defense counsel ineffective in failing to object to the Solicitor's blostering (sic) of the case?

Issue F: Was defense counsel ineffective in failing to object to the trial court's malice charge?

Issue G: Was the Applicant's Sixth Amendment Right to a fair trial violated by the trial court's refusal to give defense counsel's requested charge?

App. 421.

In response, the State filed its return on August 17, 2005, requesting an evidentiary hearing on Petitioner's ineffective assistance of counsel claims. App. 451-57. Almost two years later, on August 16, 2007, an evidentiary hearing was conducted in York before the Honorable G. Edward Welmaker. App. 458. At the hearing Petitioner was represented by W. James Flynn, Esq., while the State was represented by Assistant Attorney General Ashley McMahan. Id. Petitioner's former defense attorney, Adrian Cooper, testified, along with Petitioner; his former girlfriend, Amanda Mobley Hemphill; and his brother, Jay Massey. App. 459. On October 9, 2007, the PCR court issued an order denying Petitioner relief and making the following findings of fact 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 further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility and weigh their testimony accordingly. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. Code Ann. §17-27-80 (2003).

Ineffective Assistance of Counsel

The 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. 2052, 2064, 80 L.Ed.2d 674, 692 (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. TheApplicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).

Courts use a two pronged test in evaluating allegations of ineffective assistance of counsel. 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, 385 S.E.2d at 625, 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, 386 S.E.2d at 625.

Summary of Testimony

Applicant testified as to a number of complaints against trial counsel, however the thrust of his complaint is that trial counsel did not put up witnesses (including the Applicant) to support an involuntary manslaughter charge, did not object to the Solicitor's closing statement, failed to object to the indictment because it included the word "beating" and all evidence reflected death by stabbing, and failed to object to the trial court's malice charge to the jury. Applicant also testified that trial counsel didn't call two witnesses, Amanda Mobley, and his brother Jay Massey; that trial counsel told the Applicant he didn't call them because he didn't want to "get into character stuff." Applicant also asserted that since the jury asked for the malice charge to be re-read, that the charge was erroneous.

Jay Massey, the Applicant's brother, testified that the Applicant did not live with the victim but would testify at the trial that the victim and the Applicant were together. Amanda Mobley Hemphill testified that she was the second girlfriend, while the Applicant was dating the victim, and that she had a child with the Applicant. Ms. Mobley also said that she knew the Applicant was dating and living off and on with the victim and that she did not get along with the victim. She also stated that she was aware that the victim cut the Applicant years before and that during the trial, trial counsel told her he was not going to call her because she would get out too much information that could be dangerous.

Trial counsel testified that he was prepared for the trial and that he did not call Ms. Mobley or the Applicant's brother because he was concerned about what their testimony would be. Trial counsel also said that he asked for an involuntary manslaughter charge but it was denied and that his theory of the case was that there was a domestic argument, a fight and a struggle took place, the victim fell and had a knife, and the Applicant ran away. Trial counsel stated that "beating" probably could have been left out of the indictment since

...