Jackson v. Kendall

• Decision Date: 28 December 2022
• Docket Number: C. A. 5:22-402-MGL-KDW
• Parties: Tre'Vaughn Jackson, Petitioner, v. Brian Kendall, Warden Lieber Correctional Institution, Respondent.
• Court: U.S. District Court — District of South Carolina

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Tre'Vaughn Jackson, Petitioner,
v.
Brian Kendall, Warden Lieber Correctional Institution, Respondent.

C. A. No. 5:22-402-MGL-KDW

United States District Court, D. South Carolina

December 28, 2022

REPORT AND RECOMMENDATION

KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE

Tre'Vaughn Jackson (“Petitioner”) is a state prisoner who filed this counseled 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. 14, 15. Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment on June 9, 2022, ECF No. 20, and Respondent filed a Reply on June 16, 2022. ECF No. 21.

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment be granted, and this Petition be denied.

I. Background

Petitioner is currently incarcerated in Lieber Correctional Institution of the South Carolina Department of Corrections. He was indicted at the November 2013 term of the Sumter County Grand Jury on two counts of attempted murder, one count of possession of a firearm during the commission of a violent crime, one count of unlawfully carrying a pistol, and one count of

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discharging a firearm in a dwelling. App. 505-506.^[1] Petitioner proceeded to a jury trial on August^[2]25-28, 2014, before the Honorable W. Jeffrey Young, Circuit Court Judge, on attempted murder, possession of a weapon, and discharging a firearm charges. App. 1 et. seq. Petitioner was represented by Tiffany Butler, Esquire and Assistant Solicitor John P. Meadors represented the State. App. 1. The jury found Petitioner guilty of the attempted murder and weapon charges. App. 390. Judge Young sentenced Petitioner to 60 years imprisonment. App. 404-406.

Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals (“Court of Appeals”). App. 408. On appeal, Petitioner was represented by Chief Appellate Defender Robert M. Dudek, Esq., of the South Carolina Office of Appellate Defense, who filed an Anders^[3] Brief of Appellant on September 18, 2015, raising the following issue:

Whether the court erred by allowing hearsay testimony from law enforcement that other alleged eyewitnesses named appellant as the shooter since this hearsay testimony was highly prejudicial, and denied appellant his right to a fair trial on the present charges

App. 411. Attorney Dudek certified the appeal was without legal merit and asked to be relieved as counsel. App. 419. On March 2, 2016, the Court of Appeals filed an unpublished decision dismissing Petitioner's appeal. App. 422-23.

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II. Procedural History

Petitioner filed an Application for Post-Conviction Relief (“PCR”) on April 11, 2016. App. 424-57. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of counsel and denial of due process claims. App. 425-26, 429-57. The State filed a return on or about September 30, 2016. App. 459-63. A PCR motion hearing convened on November 8, 2016, before the Honorable Brian M. Gibbons, Circuit Court Judge. App. 464-91. Petitioner was present and represented by Attorney Timothy L. Griffith, and Assistant Attorney General Julie A. Coleman appeared on behalf of the State. See id. Petitioner's trial counsel Tiffany Butler testified at the hearing; Petitioner did not testify. Id. The PCR court denied and dismissed Petitioner's PCR Application in an order filed on May 4, 2017, making the following findings of fact and conclusions of law:

V. 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 (1985)

As a matter of general impression, this Court finds Trial Counsel's testimony to be credible and persuasive. This credibility finding has been applied to the Court's findings and conclusions set forth below.

INEFFECTIVE ASSISTANCE OF COUNSEL

Applicant has asserted several allegations of ineffective assistance of counsel. This Court finds these claims to be meritless and they should be denied and dismissed with prejudice.

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Failure to object to accomplice liability instructions and “hand of one hand of all” charge

Applicant alleges that Trial Counsel was ineffective for failing to object to accomplice liability instructions and a “hand of one, hand of all” charge. This allegation is meritless. There was evidence presented that another person was involved in the shooting, although law enforcement never identified who it was. Trial Counsel testified that there was no reason to object to these instructions, and this Court agrees. Applicant has failed to meet his burden of proving either prong of the Strickland test, and this allegation is denied and dismissed with prejudice.

Failure to request the lesser-included offense

Applicant alleges that Trial Counsel was ineffective for failing to request an instruction on the lesser included offense of Assault and Battery of a High and Aggravated Nature. This allegation is meritless.

Although Trial Counsel could not recall her reasoning for choosing not to request the lesser included offense, she expressed that it was possible that she did not want Applicant to be convicted of a lesser included offense when there was a chance he would be found not guilty of attempted murder. In this case, he would not have any convictions. It is reasonable to assume that this is a valid strategy that Trial Counsel could have been choosing. Where counsel articulates a valid strategic reason for his action or inaction, counsel's performance should not be found ineffective. Roseboro v. State, 317 S.C. 292, 454 S.E.2d 312 (1996); Underwood v. State, 309 S.C. 560, 425 S.E.2d 20 (1992); Stokes v. State, 308 S.C. 546, 419 S.E.2d 778 (1992). Courts must be wary of second guessing counsel's trial tactics; and where counsel articulates a valid reason for employing such strategy, such conduct is not ineffective assistance of counsel. Whitehead v. State, 308 S.C. 119, 417 S.E.2d 529 (1992). Recognize, however, that a strategic or tactical decision does not have to be articulated by counsel on the record; counsel doesn't to [sic] have to personally identify his or her thinking. Federal courts have held that it is enough that the record show a basis for strategy, not that counsel announce that strategy on the record. Wood v. Allen, 558 U.S. 290,___, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010).

This Court finds that Trial Counsel was not ineffective for choosing not to request an instruction for the lesser-included offense. Applicant has failed to meet his burden of proof, and this allegation is denied and dismissed with prejudice.

Failure to object to hypothetical examples of express malice in jury instructions

Applicant alleges that Trial Counsel was ineffective for failing to object to the trial judge's use of hypothetical examples when explaining express malice to

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the jury. This allegation is meritless. This Court finds there was no reason to object to these instructions, as they were part of the standard jury charges used to compare express and implied malice. Furthermore, any objection that might have been made to this would not have changed the outcome of the trial. Since Applicant has failed to prove either prong of the Strickland test, this allegation is denied and dismissed with prejudice.

Failure to object to consecutive sentences

Applicant alleges that Trial Counsel was ineffective for failing to object to the trial court's consecutive sentences. This allegation is meritless.

South Carolina law states:

In determining the number of offenses for the purpose of imposition of sentence, the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the law they constitute separate and distinct offenses.

S.C. Code Ann. § 17-25-50. Applicant was sentenced to two consecutive thirty-year sentences based on his two charges of attempted murder. Here, there were two victims shot. These people were the victims of two separate and distinct crimes - -both of them were shot and injured. This was the basis for the trial court's sentence, and this Court agrees with its reasoning. This Court finds that the trial court properly sentenced Applicant within its discretion and within the statutory limits of the sentence. Trial Counsel credibly testified that she asked for concurrent sentences in her mitigation at sentencing. This Court finds that Trial Counsel was not ineffective for failing to object to the sentence.

Furthermore, Applicant has not shown that the implication of this sentence changed the outcome of the trial. Any objection to the sentence would only have potentially altered the sentence, not the jury's verdict. Regardless, Applicant has not proven that any objection would have been successful.

Because Applicant has failed to prove either prong of the Strickland test, and this allegation is denied and dismissed with prejudice.

Failure to object to general intent instruction

Applicant alleges that Trial Counsel was ineffective for failing to object to the trial court's jury instruction that general intent, not specific intent, was

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