Leaphart v. Eagleton

• Decision Date: 29 March 2017
• Docket Number: Civil Action No.: 2:15-cv-04910-JMC
• 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

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

March 29, 2017

ORDER AND OPINION

Petitioner Kareem Jabbar Leaphart ("Petitioner"), a state prisoner, filed through counsel a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging five numbered grounds for relief. (ECF No. 1.) Respondent, Warden Willie L. Eagleton ("Respondent"), filed a return (ECF No. 8) and a motion for summary judgment on all five of Petitioner's grounds for relief (ECF No. 9).

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c) (D.S.C.), the matter was referred to United States Magistrate Judge Mary Gordon Baker for pre-trial handling. On January 23, 2017, the Magistrate Judge issued a Report and Recommendation ("Report") recommending the court grant Respondent's motion for summary judgment and dismiss the Petition with prejudice on all five grounds raised therein. (ECF No. 21.) Petitioner filed objections to the Report (ECF No. 25), which the court now considers. For the reasons that follow, the court ACCEPTS IN PART and REJECTS IN PART the Magistrate Judge's Report, GRANTS IN PART and DENIES IN PART Respondent's motion for summary judgment, DISMISSES all but a portion of Ground Two of the Petition, and RECOMMITS the matter to the Magistrate Judge for further proceedings consistent with this order.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The court concludes, upon its own careful review of the record, that the Magistrate Judge's factual synopsis is accurate and incorporates it herein by reference.¹ The court's recitation of the background will thus focus on the facts pertinent to the analysis of Petitioner's objections, citing to the record only when it is particularly useful to do so. The relevant facts, viewed in a light most favorable to Petitioner, are as follows.

Petitioner was indicted and charged with possession with intent to distribute crack cocaine, possession with intent to distribute cocaine, distribution of crack cocaine, and resisting arrest. A two-day jury trial was held in January 2007, and Petitioner was convicted of the latter two counts and sentenced, in the aggregate, to 23 years in prison.

At trial, George Douglas Curry, a narcotics agent of the Sheriff's Office in Lexington County, South Carolina, testified that the Sheriff's Office had received complaints of drug-related activity in the area of a mobile home park in West Columbia, South Carolina. In response, he and other officers commenced an undercover drug buy in the area on March 15, 2006. Agent Curry testified that the officers went to a bank and withdrew two $20 bills from an account used for undercover operations such as this one and that he issued the two bills to another agent, John Moore. Agent Moore then drove to the mobile home park where he encountered Petitioner. Agent Moore testified that he gave Petitioner $40 of narcotics funds and that Petitioner handed him some crack cocaine² (see ECF No. 8-1 at 105, 108, 111-12), after which Agent Moore signaled the otherofficers involved to effect an arrest.

Agent Curry testified that he drove up on the scene with the blue lights affixed to his vehicle turned on, stopped, and exited the vehicle. He testified that Petitioner "took off between two trailers right on the roadway. And as he did, he took what was in his pocket, threw it on the ground, and continued to run with [other officers] in pursuit." (ECF No. 8-1 at 54.) Agent Curry lost sight of Petitioner, re-entered his vehicle, drove to where he expected to find Petitioner, found Petitioner in a struggle with other officers, and helped effect Petitioner's arrest.

Agent Curry was questioned about the two $20 bills used in the undercover drug buy. Upon testifying that he had issued the two bills to Agent Moore, Agent Curry was shown a photocopy of two $20 bills and asked by the solicitor to "[p]lease tell me what this is if you know." (ECF No. 8-1 at 51; see id. at 61 (clarifying that the item shown to Agent Curry was a photocopy of the bills).) Agent Curry responded that "[t]his is a portion of the money that we had taken out of the bank and that was issued to [Agent Moore]. This is the money that was used to make a controlled purchase." (Id. at 51.) Later, the solicitor asked Agent Curry, "You said that you picked up the money that [Petitioner] threw. [The photocopy that] has been marked as State's 1, is that the money or some of the money that you picked up?" (Id.) Agent Curry responded in the affirmative, and the prosecution moved to admit the photocopy into evidence. (See id.) Over Petitioner's trial counsel's objection under the best evidence rule in S.C.R. Evid. 1002 or 1003, the photocopy was admitted into evidence. (See id.)

During cross-examination, trial counsel asked Agent Curry how he kept track of the bills so that he knew that the bills he had found were the same bills he had issued to Agent Moore. (Seeid. at 62.) Agent Curry responded that "[w]e had this money. This is the money that I had handed to [Agent] Moore a couple of minutes earlier." (Id. at 62-63.) When asked whether there were any distinguishing marks on the bills so that they could be identified, Agent Curry responded that there was "[n]othing really . . . It looks like a $20 bill." (Id. at 63.) During cross-examination, Agent Curry also clarified that the two bills had been recovered from off the ground and that they had been thrown on the ground by Petitioner. (See id. at 63-64.) Agent Curry also testified that the two bills had been re-deposited into the account from which they had been withdrawn. (See id. at 62.)

Following the trial, the jury found Petitioner guilty of distribution of crack cocaine, and he was convicted and sentenced as previously explained. Petitioner appealed, arguing that there had been insufficient evidence for a conviction. The South Carolina Court of Appeals dismissed the appeal.

Petitioner filed an application for post-conviction relief ("PCR") in state court. During a hearing in the PCR court, trial counsel testified that his "overall trial strategy" was to emphasize the weakness of any evidence that a money-for-drugs transaction occurred:

[Agent] Curry testified that [Petitioner] dropped the drugs, but he didn't actually ever say specifically he saw it. And there was that. I tried to harp on the fact that they might not be able to connect it necessarily. There [were] complaints of drug activity. It's not unreasonable to think that—[y]ou know, they found it quite a distance away from him. There was nobody that specifically said they eyeballed him drop it; they just said it was dropped in an area where they thought he dropped it and said that he dropped it, but they didn't say that they actually saw it happen. I pointed that out in my closing argument I believe. Additionally, it was not clear that an actual sale occurred. I tried to address that problem at trial, that there was no audio even though they said they [had an audio recording].

(ECF No. 8-2 at 125-26.) Trial counsel also testified that he had cross-examined Agent Curry regarding what had happened to the two $20 bills after the undercover drug buy and that his questions were "in anticipation of using [Agent Curry's testimony] in closing, [to argue] that [theofficers] were . . . unconcerned as to return the money to the bank." (Id. at 130.) Trial counsel was asked whether that line of questioning "was part of [his] strategy with regards to the money used in the control[led] buy." (Id.) Trial counsel responded:

It is my experience—and it was something that I've been taught and I've found to be true throughout my career—it's better to get the information and argue about why it's a bad thing at closing rather than try to argue with the witness. As a trial attorney, I'm a firm believer that you can never win an argument with a witness and, once you've started, you've already lost. So, once you get the information that can allow you to make the argument to the jury, you don't go into it further and tell them that they're wrong or try to berate them for the information you've gotten. You get the information and move on.

(Id.)

On cross-examination, Petitioner's PCR counsel questioned trial counsel regarding his understanding of S.C. Code Ann. § 44-53-582 (2016).³ On redirect examination, trial counsel testified that he did not believe the statute addressed anything regarding the admissibility at trial of monies used by law enforcement during a controlled buy. Later, trial counsel, clarifying an apparent misapprehension of PCR counsel, stated "As to whether . . . , if I had used [§ 44-53-582] . . . and got the bills excluded, it would have made a difference, I can't testify that it wouldn't have made a difference." (ECF No. 8-2 at 144.)

The PCR court denied Petitioner's PCR application and dismissed the petition. The PCR court also denied Petitioner's subsequent motion to reconsider, alter, or amend. Petitioner appealed to the South Carolina Court of Appeals, filing a Johnson petition for a writ of certiorari.⁴ The Court of Appeals denied the petition for a writ of certiorari and remitted the matter to the court below.

On December 10, 2015, Petitioner filed his § 2254 petition, asserting five grounds for relief. In Ground One, Petitioner asserts trial counsel rendered ineffective assistance by failing to object to the sufficiency of the indictment for distribution of crack cocaine. In Ground Two, Petitioner asserts trial counsel rendered ineffective assistance by failing to object to the admission of the photocopy of the two $20 bills into evidence. In Ground Three, Petitioner asserts that trial counsel rendered ineffective assistance by failing to object to remarks made by the solicitor during opening statements. In Ground Four, Petitioner asserts trial counsel rendered ineffective assistance by failing to...