Johnson v. Stephon

• Decision Date: 06 March 2019
• Docket Number: C/A No. 0:18-2139-MGL-PJG
• Court: U.S. District Court — District of South Carolina
• Parties: Kadeem Johnson, Petitioner, v. Warden Stephon, Respondent.

Kadeem Johnson, Petitioner, v. Warden Stephon, Respondent.

C/A No. 0:18-2139-MGL-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

March 6, 2019

REPORT AND RECOMMENDATION

Petitioner Kadeem Johnson, a self-represented state prisoner, filed a 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) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. (ECF No. 15.) 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. 16.) Petitioner filed a response in opposition (ECF No. 23), and Respondent replied (ECF No. 24). Having carefully considered the parties' submissions and the record in this case, the court finds that Respondent's motion should be granted and the Petition denied.

BACKGROUND

Petitioner was indicted in March 2011 in Sumter County for armed robbery while armed with a deadly weapon and possession of a weapon during a violent crime (2011-GS-43-0469), and for attempted murder, attempted armed robbery, and possession of a weapon during the commission of a violent crime (2011-GS-43-0481). (App. at 332-40, ECF No. 14-1 at 335-43.) In July 2011, Petitioner was indicted in Sumter County for another count of armed robbery while armed with a deadly weapon (2011-GS-43-0939). (App. at 341-43, ECF No. 14-1 at 344-46.) Petitioner was represented by Charles Brooks, Esquire. (App. at 1, ECF No. 14-1 at 4.) On April 16, 2012, the Honorable R. Jeffrey Young, Circuit Court Judge, heard pretrial motions in Petitioner's case, and the parties selected a jury. (App. at 1-29, ECF No. 14-1 at 4-32.) The following day, Petitioner pled guilty as charged. (App. at 30-60, ECF No. 14-1 at 33-63.) The court sentenced Petitioner to twenty-five years' incarceration for each of the armed robbery convictions, to five years' incarceration for each of the possession convictions, and to twenty years' incarceration for attempted murder, all to be served concurrently with credit for time served. (App. at 57-59, ECF No. 14-1 at 60-62.)

On April 27, 2012, plea counsel filed a motion to reconsider Petitioner's sentence. (App. at 61, ECF No. 14-1 at 64.) The court denied the motion. (App. at 63, ECF No. 14-1 at 66.)

Petitioner timely appealed. On March 18, 2013, Robert M. Pachak, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed an Anders¹ brief on Petitioner's behalf, raising the issue of "[w]hether appellant's guilty plea complied with the mandates set forth in Boykin v. Alabama[.]" (App. at 65-76, ECF No. 14-1 at 68-79.) Petitioner's appeal was dismissed by the South Carolina Court of Appeals in an unpublished, per curiam opinion filed on July 31, 2013. (State v. Johnson, Unpublished Opinion No. 2013-UP-331,App. at 77-78, ECF No. 14-1 at 80-81.) The remittitur was issued on August 23, 2013. (App. at 79, ECF No. 14-1 at 82.)

On April 25, 2014, Petitioner filed a pro se application for post-conviction relief ("PCR"). (Johnson v. State, 2014-CP-43-794, App. at 80-86, ECF No. 14-1 at 83-89.) In his PCR application, Petitioner alleged the following issues:

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

(a) My constitutional Right to effective assistance of counsel was violated.

(b) My constitutional Right to speedy trial was violated.

(c) My constitutional Right to Equal protection was violated.

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

(a) Counsel failed to (conduct adequate) investigation and prepare for trial. Therefor providing me inadequat legal advice.

(b) Between the filing of speedy trial motion and trial (the delay). It was helpful to the State.

(c) Discrimination in sentencing between me and codefendant.

(App. at 82, ECF No. 14-1 at 85) (errors in original). The State filed a return. (App. at 87-93, ECF No. 14-1 at 90-96.) Thereafter, on February 11, 2016, Tricia A. Blanchette, Esquire, filed an amended PCR application on Petitioner's behalf, alleging the following claims:

1. Ineffective Assistance of trial/plea counsel for failure to prepare and investigate Applicant's case during the two years leading up to trial, which resulted in a failure to review the evidence with Applicant and properly prepare Applicant for trial culminating in an involuntary guilty plea. Specifically, but not limited to:

a. Ineffective assistance of counsel for failure to move for dismissal at the preliminary hearing or anytime thereafter since the arrest warrant was issued based upon the statements of Randy Lowery, which do not name Applicant.b. Ineffective assistance of counsel for failure to either obtain the statements of Higgins and Gordon in time to prepare for trial and investigate the statements or make a Brady motion regarding the State's disclosure of the statements. Pre-trial Transcript pp. 21-24.

c. Ineffective assistance of counsel for failure to have knowledge of and/or review the SLED findings with Applicant and make sure such findings were properly reflected in the record.

d. Ineffective assistance of counsel for failure to address the differing language in the indictments and for failure to clarify if Applicant was being charged as a principal or under the theory of hand of one is the hand of all.

e. Ineffective assistance of counsel for failure to prepare to cross-examine and impeach the testimony of co-defendant Upchurch.

f. Ineffective assistance of counsel for failure to act on Applicant's request for a speedy trial.

2. Ineffective assistance of counsel for appearing to not know what charges the State planned to proceed with at trial and for not preparing Applicant for the charges he would face at trial, which resulted in an involuntary guilty plea. Pre-trial Transcript Pp. 25-6.

3. Ineffective assistance of counsel for failure to object to the Court's opening comments to the jury regarding a true and just verdict. Pre-trial Transcript p. 6, lns. 8-12. SeeState v. Daniels, 401 S.C. 251, 737 S.E.2d 473 (2012).

4. Ineffective assistance of counsel for inducing Applicant's guilty plea on advice that the court would sentence him close to the fifteen year sentence of his co-defendant and failing to put such information on the record during the plea and reconsideration phase.

5. Pursuant to United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984) and Nance v. Ozmint, 367 S.C. 547, 626 S.E.2d 878 (2006), Applicant alleges that counsel rendered ineffective assistance in violation of the Sixth Amendment's requirement that Applicant have counsel acting in the role of an advocate and in violation of the adversarial process the Sixth Amendment protects when counsel failed to subject the State's case to a meaningful adversarial testing.

6. Pursuant to Rule 15(b), SCRCP, Applicant would move to amend to conform to the evidence and testimony presented at the evidentiary hearing.

(App. at 94-95, ECF No. 14-1 at 97-98.)

On March 16, 2016, the PCR court held an evidentiary hearing at which Petitioner appeared and testified. (App. at 97-238, ECF No. 14-1 at 100-241.) Petitioner was represented by PCR counsel during the hearing. (App. at 97, ECF No. 14-1 at 100.) Petitioner also called trial counsel to testify during the hearing. (App. at 170-218, ECF No. 14-1 at 173-221.) At the conclusion of the hearing, the PCR court announced that it

agree[d] with the position of and the argument made by the state as to each of the issues before the Court today, except for the following: . . . I do not think there should be a finding of overwhelming evidence of guilt; and (2) I'm going to take under advisement the issue of whether or not the advice given relating to sentencing was sufficient to warrant a new trial.

(App. at 234-35, ECF No. 14-1 at 237-38.) Following post-hearing briefing, the PCR court denied and dismissed with prejudice the PCR application in an order dated October 18, 2016. (App. at 289-306, ECF No. 14-1 at 292-309.) On November 3, 2016, PCR counsel filed a motion for reconsideration pursuant to Rule 59(a) & (e), SCRCP. (App. at 307-12, ECF No. 14-1 at 310-15.) The PCR court denied that motion in an order filed on December 1, 2016. (App. at 331, ECF No. 14-1 at 334.)

Petitioner appealed. On September 5, 2017, Susan B. Hackett, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a petition for writ of certiorari on Petitioner's behalf. (Johnson v. State, App. Case No. 2017-000028, ECF No. 14-3.) The following issue was presented in the petition:

Was Petitioner's guilty plea involuntary where plea counsel provided ineffective assistance in derogation of the Sixth and Fourteenth Amendments to the Constitutionby inducing Petitioner to pled [sic] guilty by advising him that pursuant to information plea counsel obtained during a chambers conference, the judge would impose a sentence between sixteen and twenty years, but the judge imposed a twenty-five year sentence and where plea counsel failed to place this information on the record during the guilty plea or in the motion for reconsideration?

(ECF No. 14-3 at 3.) The State filed a return. (ECF No. 14-1.) On April 19, 2018, the Supreme Court of South Carolina denied the petition. (ECF No. 14-5.) The remittitur was issued on May 7, 2018, and was filed in the Sumter County Court on May 9, 2018. (ECF No. 14-6.)

FEDERAL HABEAS ISSUES

The Petition for a writ of habeas corpus raises the following issues, quoted verbatim:

Ground One: Trial Counsel was ineffective for failing to investigate; failed to Do any Pretrial investigation; Trial Counsel was ineff for delay of speedy trial motion

Supporting Facts: Trial Counsel did absolutely No pre-trial

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