Jones v. McFadden

• Decision Date: 20 January 2016
• Docket Number: C/A No.: 4:15-cv-1401-BHH-TER
• Citation: Jones v. McFadden, C/A No.: 4:15-cv-1401-BHH-TER (D. S.C. Jan 20, 2016)
• Court: U.S. District Court — District of South Carolina
• Parties: DONALD SCOTT JONES, Petitioner, v. JOSEPH MCFADDEN, WARDEN, Respondent.

DONALD SCOTT JONES, Petitioner, v. JOSEPH MCFADDEN, WARDEN, Respondent.

C/A No.: 4:15-cv-1401-BHH-TER

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

January 20, 2016

Report and Recommendation

Petitioner, Donald Scott Jones, appearing pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 30, 2015.¹ Respondent filed a return, motion for summary judgment, and memorandum in support on June 15, 2015. (Docs. #10 & #11). The undersigned issued an order filed June 16, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #12). Petitioner filed a response in opposition to the motion for summary judgment on July 24, 2015. (Doc. #17). Respondent filed areply to the response on August 3, 2015. (Doc. #18).

PROCEDURAL HISTORY

Petitioner is currently confined at the Lieber Correctional Institution in the South Carolina Department of Corrections pursuant to an order of commitment from the Cherokee County Clerk of Court. Petitioner was indicted by the Cherokee County Grand Jury during the August 2009 term of the Cherokee County Court of General Sessions for assault and battery with intent to kill (ABWIK) (2009-GS-11-0924). (App. 318-19). Petitioner was represented by Thomas Shealy, Assistant Public Defender. (App. 1). The State was represented by Kimberly L. Leskanic, Assistant Solicitor. Id. Petitioner proceeded to trial on September 14, 2009, before the Honorable J. Mark Hayes, II, Circuit Court Judge. Id. The jury found Petitioner guilty as charged and the trial judge sentenced Petitioner to twenty years' imprisonment, suspended to the service of twelve years' imprisonment and five years' probation. (App. 242, 250).

Direct Appeal

On September 21, 2009, trial counsel filed a notice of appeal in the South Carolina Court of Appeals. (Attachment No. 2). On May 24, 2010, Petitioner filed his final brief in the Court of Appeals, raising the following issue, quoted verbatim: "Whether trial court erred in refusing to give a jury instruction on the defense ofothers when there was evidence to support the charge?" (Attachment No. 3). The Court of Appeals filed a per curiam opinion on June 13, 2011, affirming Petitioner's convictions and sentences, and issued a Remittitur on June 29, 2011. (Attachment Nos. 5-6).

PCR

On February 13, 2012, Petitioner filed an application for post-conviction relief (PCR) (2012-CP-11-0111), asserting a claim of ineffective assistance of trial counsel for failing to investigate. (App. 253, 256). The State filed a return to the PCR application on November 30, 2012. (App. 261-63).

An evidentiary hearing was held on October 4, 2013, before the Honorable J. Derham Cole, Circuit Court Judge. (App. 265). Petitioner was present and represented by Alexander Hray, Jr., Esquire. Id. The State was represented by Suzanne H. White, Assistant Attorney General. Id.

At the PCR evidentiary hearing, counsel for Petitioner informed the court that there were three issues being raised for review. PCR counsel stated that the three issues they were presenting as ineffective assistance of trial counsel were as follows: failure to make a motion to quash the indictment, failure to properly investigate by interviewing key witnesses in the case prior to going to trial, and failure to motion for a change of venue due to trial publicity in another case involving Petitioner thatoccurred in May of 2009. (App. 269). On February 24, 2014, the PCR judge issued an order of dismissal. (App. 309).

PCR Appeal

Petitioner served a notice of appeal from the PCR judge's order of dismissal on March 26, 2010. (Attachment No. 7). On appeal, Petitioner was represented by Lara M. Caudy, Appellate Defender, South Carolina Commission on Indigent Defense, Division of Appellate Defense. (Attachment No. 8). Appellate PCR counsel filed a Johnson² petition for a writ of certiorari, asking to be relieved as counsel, and raising the following issue, quoted verbatim:

"Whether Petitioner's Sixth and Fourteenth Amendment rights to the effective assistance of counsel were violated when trial counsel failed to investigate and interview a key eyewitness, Tammy Byars, before trial since if trial counsel would have properly investigated Byars and learned what she planned to testify about at trial Petitioner would not have proceeded to trial but instead would have accepted the solicitor's twenty year plea offer and pled guilty to this charge and other unrelated charges pending against him?"

(Id.).

Petitioner filed a pro se response in which he raised the following issues, quoted verbatim:

Whether petitioner's due process and Sixth Amendment right wasviolated when trial counsel failed to motion for a fast and speedy trial?

Whether the fact that the state took over (3) three years to give petitioner a trial violates Federal Rules of Criminal Procedure and other Federal statutes that protect defendants from undue post accusation delay?

Whether Petitioner's Sixth and fourteenth Amendment rights to the effective assistance of counsel were violated when trial council failed to investigate the direct indictment of assault and battery with intent to kill that was inhanced from an indictment of assault and battery with high and aggravated nature, that was (2) two years and (11) eleven months old, to validate and find motive for inhansement, The facts of the case had not changed at all,

Whether petitioner Sixth and fourteenth Amendment rights were violated when trial counsel failed to prepare an adequate defense with a clear and proper strategy during the (3) three year delay and performing an ineffective assistance toward the case.

Whether petitioner's due process was violated when trial counsel failed to test or have any concern of publicity of the case that arose during (3) three year delay of trial. We must remember that there were charges brought up against petitioner of assault and battery with intent to kill, and CSC by petitioner's vindictive aunt, 4 months before this trial. And this issue is brought up in PCR proceeding.

Whether petitioner's due process right was violated when Judge Derham Cole presided in PCR hearing after that Judge Cole had sentenced petitioner to (2) two natural life sentences without parole in a proceeding that took place (1) one year after petitioner was sentenced to (20) twenty years, suspended to (12) twelve years and (5) five years probation.

Whether petitioner's due process right was violated when prosecutor Kim Leskanic used criminal charges in an attempt to penalize a defendant's valid exercise of constitutional or statutory rights?

Whether prosecutor Kim Leskanic used false testimony against defendant at trial by way of co-defendant turned states witness?

Whether the prosecution was improperly motivated by other charges?

Whether solicitor Kim Leskanic or any other officer of the court made any deals with witnesses for defense?

Whether solicitor Kim Leskanic was bias and prejudice against petitioner in that a Family Court Judge influenced solicitor's professional duties?

Whether petitioner's Sixth Amendment right was violated when Post-conviction relief counsel was ineffective at the initial-review collateral proceedings held on February 20, 2014. Counsel Alexander Hray, Jr. denied petitioners issues that petition wanted to raise at proceeding of PCR.

Whether petitioner's rights were violated by PCR counsel failed to call key witness to testify her recanting of statements Ms. Byars made at trial, and to state the deal made by the prosecution at trial proceedings in Sept. 14, 2009.

Whether petitioner's rights were violated due to the denial of a 59(e), the petitioner requested so that the issues that were not raised, could be put on record?

Whether PCR counsel was a criminal Lawyer?

(Attachment No. 10). The South Carolina Supreme Court denied the petition for writ of certiorari and granted PCR appellate counsel's request to withdraw. (Attachment No. 11). The remittitur was issued on February 10, 2015. (Attachment No. 12).

HABEAS ALLEGATIONS

Petitioner raises the following allegations in his petition, quoted verbatim:

Ground One: DENIAL OF DEFENSE OF OTHERS JURY INSTRUCTION by the trial judge.

Supporting Facts: Trial judge was improperly informed of the petitioner's intent by the three different testimonies co-defendant falsely stated on record that trial counsel or prosecution never corrected. Solicitor made false statements as well. Matthews v. U.S., 485 U.S. 58 (1988).

Ground Two: Ineffective Assistance of Counsel.

Supporting Facts: Counsel failed to investigate, quash that indictment of ABWIK; Counsel failed to investigate key eyewitnesses; Counsel failed to investigate the publicity and motion for a change of venue; Counsel had a conflict of interest; Counsel sided with prosecution due to conflict of interest: Cumulative Error, see Chambers v. Mississippi 410 U.S. 284 (1949); Strictland v. Washington Wigggins v. Smith 539 U.S. 510 (2003).

Ground Three: Vindictive Prosecution Blackledge v. Perry 417 U.S. 21 27-28, 94.

Supporting Facts: Deputy Solicitor inhanced the original charge three years after altercation, and no facts of the charge are different, ABHAN a misdemeanor to ABWIK most serious. This direct indictment was made when petitioner used his rights to proceed to trial instead of plea to 20 years. PCR transcript page 14-15 Blackledge v. Perry, 417 U.S. 21, 27-28, 94; U.S. v. Goodwin, 457 U.S. 368 (1982).

Ground Four: PCR judge Derham Cole should have recused himself from proceedings. Abuse of discretion was used.

Supporting facts: Judge Cole was the trial judge that sentenced petitioner with two (2) natural life sentences; Judge Cole misrepresented the petition with false statement in Dismissal; Judge Cole prevented the petitioner from testifying about the facts of Ineffective assistance of counsel by failure to investigate, which was on PCR

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