Johnson v. McFadden

• Decision Date: 30 October 2015
• Docket Number: C/A No.: 4:14-cv-4272-RMG-TER
• Citation: Johnson v. McFadden, C/A No.: 4:14-cv-4272-RMG-TER (D. S.C. Oct 30, 2015)
• Court: U.S. District Court — District of South Carolina
• Parties: ROY JOHNSON, JR., Petitioner, v. WARDEN JOSEPH MCFADDEN, Respondent.

ROY JOHNSON, JR., Petitioner, v. WARDEN JOSEPH MCFADDEN, Respondent.

C/A No.: 4:14-cv-4272-RMG-TER

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

October 30, 2015

Report and Recommendation

Petitioner, Roy Johnson, Jr. (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254¹ on November 5, 2014. Respondent filed a motion for summary judgment on May 27, 2015, along with a return and memorandum. (Docs. #31 and #32). The undersigned issued an order filed May 28, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4^th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #35). Petitioner filed a response on July 8, 2015. (Doc. #39).

PROCEDURAL HISTORY

The procedural history as set forth by the Respondent has not been seriously disputed by the Petitioner. Therefore, the undersigned will set out the undisputed procedural history, in part, as set forth by the Respondent.

Petitioner is currently confined at the Lieber Correctional Institution in the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Court for Newberry County. Petitioner was indicted by the Newberry County Grand Jury during the April 2008, Term of the Newberry County Court of General Sessions for burglary, armed robbery, kidnapping, assault and battery of a high and aggravated nature, and possession of firearm or knife during the commission of a violent crime. Petitioner was represented by Chad Jenkins, Esquire. The State was represented by Assistant Solicitor Mindy Zimmerman. Petitioner proceeded to trial by jury before the Honorable Garrison Hill on June 15, 2009. On June 17, 2009, Petitioner was found guilty as charged. (App. 207-08). Judge Hill sentenced Petitioner to incarceration for twenty-five years for burglary first, for twenty-five years for armed robbery, twenty years for kidnapping, ten years for assault and battery of a high and aggravated nature (ABHAN), and five years for the possession of weapon conviction. All of the sentences were to run concurrently. (App. 293).

Direct Appeal

Trial counsel filed a notice of appeal on Petitioner's behalf. On October 14, 2010, Elizabeth A. Franklin-Best, Appellate Defender with the Couth Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a final brief on Petitioner's behalf. The only issued raised by appellate counsel was as follows:

Did the trial court judge err by overruling appellant's objection to a state's witness' testimony speculation about why appellant's clothing appeared odd?

On September 24, 2010, Assistant Attorney General Mark R. Farthing filed a final brief on behalf of the State. On October 21, 2011, the South Carolina Court of Appeals affirmed Petitioner's conviction. The remittitur was issued on November 8, 2011.

PCR

On April 10, 2012, Petitioner filed an Application for Post-Conviction Relief (2010-CP-37-531), asserting the following claims:

(a) Ineffective assistance of counsel

(b) Insufficiency of evidence

(c) Conflict of interest

Petitioner attached a memorandum wherein he set out the details of his claims. (See tr. 305-315).

An evidentiary hearing in this action was held on June 4, 2012, before the Honorable Eugene C. Griffith, Jr. (App. 327-379). Petitioner was present and was represented by Nicole Singletary, Esquire. The State was represented by Assistant Attorney General J. Rutledge Johnson. On July 22, 2013, the PCR Court filed its Order of Dismissal denying the application. (App. 380-87).

PCR Appeal

Petitioner timely served and filed a Notice of Appeal on July 29, 2013. (Attachment No. 4). On appeal, Petitioner was represented by John Tripp, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Petitioner's appeal to the denial of relief from the PCR Court was perfected with the filing of a Johnson Petition for Writ of Certiorari raising the following issue:

Did the PCR court err in holding Petitioner failed to show prejudice by not calling his favorable witness at the PCR hearing where the witness had already testified at Petitioner's first trial that resulted in a hung jury?

( Attachment 5).

Appellate counsel filed a petition to be relieved as counsel. After being advised that he could file a pro se response to the PCR appellate counsel's petition, Petitioner submitted the following issues:

1) Petitioner argues that his rights was violated when his trial lawyerallowed prosecutors to read his testimony to the Court, during his 2nd trial. Trial lawyer had infact indicated to petitioner that the jury was not to know he had testified in a previous trial. Petitioner was infact violated under the South Carolina Code Section 19-1150, in which was repealed 2012.

2) Petitioner argues that trial lawyer failed to be deficient in Petitioner's case by not subpenoing his key witness Hasting Moore. Petitioner asserts to the Court trial lawyer was infact ineffective when indicating to petitioner that key witness couldn't be located and he wouldn't make a difference if he (key witness) testified or not. Petitioner states he was prejudiced. - State v. Thomas 154 W. Va 640; 230 S.E.2d 445 (1974).

3) Petitioner argues that trial Counsel was deficient by not giving him proper plea arrangements by entertaining the plea agreements with petitioner.-Trial Counsel provided erroneous sentencing advice, when infact petitioner was agreeing to plea to a 15 year plea bargain in the range of co-defendants. Trial Counsel advised Petitioner to withdraw 30 year plea & take chances of acquittal by trial strategy. Petitioner aggreed with Trial being overwhelmed by sentencing advice. Petitioner asserts he was violated by trial Counsel under his erroneous advice prejudiced him by Counsel coercing him. Judge v. State, 471 S.E.2d 146 S.C. (1996)

4) Petitioner asserts that he also was prejudiced when infact he imformed his trial Counsel of his condition being diagnosed with MRSa. Petitioner argues that trial Counsel erred by giving Petitioner several (meds) several different occasions, leaving Petitioner highly sedated and disoriented. Petitioner argues that he was prejudiced by the acts because he could not have possibly understood anything during that point and time, and trial Counsel should have asked the Courts for continuance. Records even proved infact that Petitioner was infact in distress due to trial being ended a day to give petitioner medical attention. (PCR application pg. 4, sect. 10).

5) Petitioner further argues that he is infact entitled to a new trial based on the records of him being accused by trial Counsel of shooting at his house. Petitioner argues that it was infact an Conflict of interest -based on the grounds of the trial Counsel being verbal suggestive on warning the petitioner that he owns a gun and he will use it by any means. Petitioner asserts to the courts that infact that verbal gesture from trial Counsel was infact a threat and should have been brung to the Courts attention and moved to have the trial Counsel removed from case. Petitioner argues there jury may have overheard the commotion in the open courtroom during their deliberations. Petitioner argues that he was prejudiced by this act within the courtroom by trial Counsel not giving an proper representation to the Petitioner after this point of trial. Petitioner argue on the bases of conflict of interest by trial Counsel and is entitled to a new trial. Cuyter v. Sullivan, Supra, 446 U.S., at 350, 348, 100 S.C.T

6) Petitioner asserts to the Courts that it was infact insufficently of evidence to convict during trial. He relies upon the direct verdict presented at the closing of the state's case. The state infact failed to produce any evidence that which was sufficient to convict the petitioner on each charge being presented. The State's evidence failed to meet it's burden and failed to prove each and every element of each charge beyond a reasonable doubt. - "Mere presence at the scene of a crime is insufficient to convict one as a principal on a theory of aidding and abetting." - State failed to prove petitioner was infact acting, participating, aiding or abetting in the prescence of committing a crime of kidnapping, arm robbery, burglary, assault, using an unlawful firearm in possession. Therefore, when infact co - defendants admits to roles of involvement which excludes Petitioner from committing any crime actual involvement. 1) Kidnapping requires proof of an unlawful act such as seizure, confinement, inveglement, decoy, abduction, or carrying away of a person. Code 1976 § 16 -3-910, State v Bersten, 367 S.E.2d152, 295, S.C. 52 2). Arm Robbery state must prove robbery by establishing the commission of a robbery by either ofthe two additional elements. Petitioner must be armed with an deadly weapon/or the Petitioner alleged the he was armed with an deadly weapon, either by actions or words; while using a representation of a deadly weapon or an object which a person presents during the crime committed. State v. Kelvin Jones 342 S.C. 248, 536 S.E.2d 396 (App. 2000) reversed. 3) Assault and battery requires an unlawful act of violent injury accompanied by circumstances of aggravation. Such aggravation circumstances include the use of a deadly weapon, the infliction of serious bodily injury, the intent to commit a felony; a great disparity between the ages and physical conditions of the parties involved and differences in sexes. State v. Spouse 325 S.C. 275, 286, n2. 478 S.E.2d 871, 877 n2 (Ct. App.1996). State v. Murphy, 322 S.C. 321, 324-25, 471 S.E.2d 739, 740-41 (Ct. App. 1996).

Petitioner asserts that the failed to prove any of the accused charges by elements. Petitioner further asserts that to be aidder or abetter the petitioner must be chargeable with knowledge of the principal Criminal conduct, mere presence at the scene is not sufficient to

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