Leaphart v. Eagleton

• Decision Date: 23 January 2017
• Docket Number: Civil Action No.:2:15-cv-04910-JMC-MGB
• Court: U.S. District Court — District of South Carolina
• Parties: Kareem Jabbar Leaphart, Petitioner, v. Warden Willie L. Eagleton, Respondent.

Kareem Jabbar Leaphart, Petitioner, v. Warden Willie L. Eagleton, Respondent.

Civil Action No.:2:15-cv-04910-JMC-MGB

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

January 23, 2017

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 9; see also Dkt. No. 8.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court. The Petitioner, through counsel, filed the instant action on December 10, 2015. (Dkt. No. 1.) On March 24, 2016, Respondent filed a Motion for Summary Judgment. (Dkt. No. 9; see also Dkt. No. 8.) On June 30, 2016, Petitioner filed a Response in Opposition to the Motion for Summary Judgment, to which Respondent filed a Reply. (See Dkt. No. 19; Dkt. No. 20.)

PROCEDURAL HISTORY

The Petitioner is currently confined within the South Carolina Department of Corrections ("SCDC"). In December of 2006, the Lexington County Grand Jury indicted Petitioner for distribution of crack cocaine (2006-GS-32-4051) and resisting arrest (2006-GS-32-4053). (Dkt. No. 8-3 at 392-395.) Petitioner was represented by Arie D. Bax, Esquire, and Matthew Buchanan, Esquire. (Dkt. No. 8-1 at 3.) Petitioner proceeded to a jury trial before the Honorable R. Knox McMahon on January 9-10 of 2007. (Id. at 3-204; 8-2 at 1-45.) The jury convicted Petitioner on both charges,¹ and Judge McMahon sentenced Petitioner to eighteen years on theconviction for distribution of crack cocaine and five years, consecutive, on the conviction for resisting arrest. (Dkt. No. 8-1 at 12-13.)

Immediately after sentencing, the solicitor brought it to Judge McMahon's attention that one of the witnesses against Petitioner indicated that Petitioner "made a gesture towards [her] . . . by placing his finger to his temple and acting like a gunshot." (Dkt. No. 8-2 at 26.) After conferring with Mr. Bax, Petitioner proceeded with the contempt hearing. Judge McMahon found Petitioner to be in contempt and sentenced him to six months, consecutive to the previous sentences. (Id. at 246-47)

Petitioner appealed and was represented by Eleanor Duffy Cleary, Esquire. (See Dkt. No. 8-6.) On April 22, 2008, Petitioner filed a Final Anders Brief of Appellant,² wherein he raised the following issue: "Whether appellant is entitled to a directed verdict of acquittal because the state's evidence only raised a suspicion of guilt?" (Dkt. No. 8-6 at 4.) Ms. Cleary also filed a petition to be relieved as counsel. (Id. at 8.)

In an unpublished opinion filed on November 5, 2009, the South Carolina Court of Appeals dismissed the appeal and granted counsel's request to be relieved. (Dkt. No. 8-7.) The matter was remitted to the lower court on November 23, 2009. (Dkt. No. 8-8.)

On March 15, 2010, Petitioner filed an application for post-conviction relief ("PCR"). (Dkt. No. 8-2 at 47-57.) The following questions and answers appeared in his PCR application (verbatim):

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

(a) Prosecutorial Misconduct

(b) Ineffective Assistance of Counsel

(c) Subject Matter Jurisdiction

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

(a) Improperly filed indictments in violation of Rules 3(b) and (c)-see attached.

(b) Failure to quash indictments and arrest warrants-see attached.

(c) Improperly filed indictments in violation of Rules 3(b) and (c) of the SCRCrim P. The court lacked jurisdiction because the Applicant's warrants are not signed by the arresting officer, or the issuing magistrate judge.

(Id. at 48.) Petitioner also asserted that counsel was ineffective in failing to "object to the indictment language"; that he had a "constitutional right to review grand jury impanelment docket"; and that counsel was ineffective in failing to "object to [Petitioner's] illegal sentence." (Id. at 52, 55-56.)

On August 20, 2010, Petitioner supplemented his application for PCR to include the following allegations of ineffective assistance of counsel:

(a) counsel failed to "properly investigat[e] and challeng[e] purjury [sic] testimony";

(b) counsel failed "to investigate standard procedure of the submitting narcotic bill used in the transaction of a control buy by officer operating a sting operation";

(c) counsel failed "to object to the chain of custody throughout [the] trial";

(d) counsel failed "to object to the use of videotape where the testimony contradicts the showing of video";

(e) counsel failed "to challenge chemist testimony of experience while committing purjury [sic]";

(f) counsel "allow[ed] the solicitor to give a false and misleading opening statement"; and

(g) counsel failed to "properly investigat[e] the proper procedure of a control buy by the officers conducting a sting operation.

(Id. at 58-61.)

On August 29, 2011, an evidentiary hearing was held before the Honorable William P. Keesley. (Id. at 66.) Petitioner was present and represented by Henry H. Taylor, Esq. In an order dated October 18, 2011, Judge Keesley denied the application for post-conviction reliefand dismissed the petition. (Dkt. No. 8-3 at 15-291.) On November 8, 2011, Petitioner filed a Motion to Reconsider, Alter or Amend. (Id. at 3-6.) In an order filed September 13, 2012, Judge Keesley denied Petitioner's Motion to Reconsider, Alter or Amend. (Id. at 11-14.)

Petitioner appealed, and on May 30, 2013, through Attorney LaNelle Cantey DuRant of the South Carolina Commission on Indigent Defense, he filed a Johnson Petition for Writ of Certiorari.³ (Dkt. No. 8-10.) Therein, Petitioner raised the following issue:

Did the trial court err in failing to find trial counsel ineffective for not objecting to the state returning the money used for the purchase of the drugs to the bank without having the court make a determination that these were the actual monies used pursuant to S.C. Code Section 44-53-582?

(Dkt. No. 8-10 at 3.) Ms. DuRant also filed a petition to be relieved as counsel. (Dkt. No. 8-10 at 9.) Petitioner filed a pro se response to the Johnson petition. (See Dkt. No. 8-11.)

In an order filed January 22, 2015, the South Carolina Court of Appeals denied the petition for a writ of certiorari and granted counsel's request to withdraw. (Dkt. No. 8-12.) The matter was remitted to the lower court on February 9, 2015. (Dkt. No. 8-13.)

Petitioner, through counsel, then filed the instant habeas petition, wherein he raises the following grounds for review:

GROUND ONE: Trial Counsel violated Petitioner's Sixth Amendment right to effective assistance of counsel by failing to object to the sufficiency of the Indictment against him for Distribution of Crack Cocaine.

GROUND TWO: Trial Counsel failed to provide Petitioner effective assistance of counsel in that he failed to object to the introduction of a photographic copy of currency which the State claimed could be tied to Petitioner as the "buy money" in the drug transaction attributed to Petitioner.

GROUND THREE: Trial Counsel was ineffective for failing to object to inaccurate and misleading remarks by the prosecution in its opening statement to the jury where said statements erroneously informed to [sic] the jury that the evidence to be presented by the State was far more conclusive than the evidence actually available to the State in this case.

GROUND FOUR: Trial Counsel was ineffective for failing to challenge the admissibility of the drug evidence in this case where the State failed to establish a proper Chain of Custody through the submission of notarized Chain of Custody forms.

GROUND FIVE: Trial Counsel provided Petitioner ineffective assistance of counsel in violation of his rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution where Counsel failed to adequately investigate proper police procedure for conducting an undercover drug buy and failed to use knowledge of such procedures to adequately challenge the manner in which the drug transaction with which Petitioner was charged was handled and documented.

(Dkt. No. 1-1.)

APPLICABLE LAW

Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).

Habeas Standard of Review

Because the Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir.1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:

1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

2. resulted in a

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