Mattison v. Cartledge

• Decision Date: 21 January 2016
• Docket Number: C/A No. 0:15-2323-TLW-PJG
• Parties: Anthony L. Mattison, Petitioner, v. Warden Larry Cartledge, Respondent.
• Court: U.S. District Court — District of South Carolina

Anthony L. Mattison, Petitioner, v. Warden Larry Cartledge, Respondent.

C/A No. 0:15-2323-TLW-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

January 21, 2016

REPORT AND RECOMMENDATION

Petitioner Anthony L. Mattison, a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes 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 the respondent's motion for summary judgment. (ECF No. 14.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Mattison was advised of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 15.) Mattison filed a response in opposition to the respondent's motion. (ECF No. 17.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondent's motion for summary judgment should be granted and Mattison's Petition be denied.

BACKGROUND

Mattison was indicted in July 2007 in Anderson County for possession with intent to distribute ("PWID") crack cocaine (2007-GS-04-1889). (App. at 292-93, ECF No. 13-2 at 144-45.) Mattison was represented by Kurt Tavernier, Esquire, and on January 11 and January 13-14, 2010 was tried before a jury and found guilty as charged. (App. at 201, ECF No. 13-2 at 53.) The circuit court sentenced Mattison to twenty-five years' imprisonment. (App. at 205, ECF No. 13-2 at 57.)

Mattison timely appealed and was represented by Kathrine H. Hudgins, Esquire, of the South Carolina Commission on Indigent Defense, Office of Appellate Defense, who filed an Anders¹ brief on Mattison's behalf that raised the following issue:

Did the trial judge err in refusing to suppress the drugs when the chain of custody form was notarized five days before the drugs were actually delivered to SLED for testing?

(ECF No. 13-4.) Mattison filed a pro se response to the Anders brief in which he raised the following issue:

Did the trial judge err in refusing to suppress all evidence based on unlawful arrest and search of Defendant.

(ECF No. 13-5.) On February 22, 2012 the South Carolina Court of Appeals dismissed Mattison's appeal. (State v. Mattison, Op. No. 2012-UP-084 (S.C. Ct. App. filed Feb. 22, 2012), App. at 295, ECF No. 13-2 at 147.) The remittitur was issued on March 12, 2012. (App. at 296, ECF No. 13-2 at 148.)

Mattison filed a pro se application for post-conviction relief ("PCR") on March 12, 2012 in which he raised the following claims:

1) My conviction and sentence was in violation of the Constitution of the United States and the Constitution and laws of this state.

2) Trial Court lacked subject natter jurisdiction. Counsel failed to object to the defective indictment #2007-GS-04-01889[.]

3) Applicant was denied effective assistance of Appellate Counsel in violation of the 6th Amendment. See Anders Brief/Record on Appeal.

4) Appellate Counsel failed to raise my amended indictment issue on appeal.

5) Appellate Counsel failed to raise my illegal and excessive sentence claim on appeal/and Motion to Suppress.

6) Counsel ineffective for conceding guilt on applicant's behalf, without consent.

7) Counsel failed to put the state's case through adversarial testing.

8) Counsel failed to challenge the alleged drugs in the state's possession. Tampering/chain of custody/admissibility.

9) Counsel failed to object to the Reasonable Doubt jury charge.

10) Counsel's failure to object to trial judges comments which invited jury to prematurely discuss case.

11) Counsel failed to object to the pitting of witnesses.

12) Counsel ineffective for denying applicant a full and fair consideration of his Fourth Amendment claims at trial and on direct review.

13) Counsel ineffective for vouching for a police officer.

14) Counsel failed to object to solicitor bolstering of Captain Marsee.

(See Mattison v. State of South Carolina, 2012-CP-04-1045; App. at 207-28, ECF No. 13-2 at 59-80) (errors in original). The State filed a return. (App. at 235-39, ECF No. 13-2 at 87-91.) On October 3, 2012, the PCR court held an evidentiary hearing at which Mattison appeared and testified and was represented by Daniel L. Draisen, Esquire.² By order filed December 3, 2012, the PCR court deniedand dismissed with prejudice Mattison's PCR application. (App. at 276-85, ECF No. 13-2 at 128-37.) Mattison filed a motion to alter or amend the judgment (App. at 287-89, ECF No. 13-2 at 139-41), which was denied by order filed February 15, 2013. (App. at 291, ECF No. 13-2 at 143.)

On appeal, Mattison was represented by LaNelle Cantey DuRant, Esquire, Appellate Defender with the South Carolina Commission on Indigent Defense, who filed a Johnson³ petition for a writ of certiorari that presented the following issue:

Did the PCR court err in failing to find trial counsel ineffective for not having the blue cup (open container) independently tested for alcohol because Petitioner was arrested for an open container violation which led to the discovery of the crack cocaine on his person during booking for the arrest of the open container?

(ECF No. 13-7.) Mattison filed a pro se response to the Johnson petition in which he raised the following issues:

1). Did the PCR Court violate Applicant's due process rights by not requiring Trial Counsel to testify in Applicant's PCR Hearing?

2). Did the PCR Court abuse his discretion when he allowed the case to go forward without testimony from Applicant's Trial Counsel?

3). Did the PCR Judge err by not affording the Applicant a full bite of the apple as mandated with all the PCR Rules of Protection?

4). Was the PCR Court's decision an unreasonable determination of the facts in light of the evidence presented?

5). Was the PCR Court's decision an unreasonable determination contrary to the U.S. Supreme Court's precedent and by applying a legal context that should not have applied and decisions that were objectively unreasonable?

6). Did the PCR Court err by dismissing Applicant's Motion to Alter/Amend Judgement?

7). Did Applicant's Trial Attorney violate his Sixth Amendment right to the effective assistance of counsel when he conceded during the closing argument without Petitioner's knowledge or approval, and despite Petitioner taking a jury trial and clothing himself with the role of innocence? Applicant contended that his attorney argued to the jury in closing argument without Petitioner's knowledge or consent.

8). Was Counsel ineffective for failure to put the State's case through adversarial testing? Counsel failed to renew Motion for Probable Cause to preserve for appellate review.

9). Did the Trial Court lack Subject Matter Jurisdiction to convict Applicant for an offense when there was no indictment charging him with that offense at the time jury was sworn? Counsel should have objected to indictment.

10). Was Counsel ineffective for allowing Trial Court to amend Indictment # 2007-GS-04-1889?

11). Did the Trial Judge err in refusing to suppress all evidence based on unlawful arrest and search of Defendant?

12). Was Counsel ineffective for failure to review my Probable Cause Motion? Counsel failed to argue Probable Cause properly.

13). Was Counsel ineffective for failure to challenge the admissibility of the alleged drugs?

14). Was Counsel ineffective for failure to object to the reasonable doubt charge?

15). Was Counsel ineffective for failure to object to "pitting" of witness?

(ECF No. 13-8) (errors in original). On April 23, 2015, the South Carolina Supreme Court issued an order denying Mattison's petition for a writ of certiorari. (ECF No. 13-9.) The remittitur was issued on May 12, 2015. (ECF No. 13-10.) This action followed.

FEDERAL HABEAS ISSUES

Mattison's federal Petition for a writ of habeas corpus raises the following issues:

Ground One: Violation of the United States Constitution Fourth AmendmentSupporting Facts: The trial judge failed to suppress all evidence based on a unlawful arrest and search of Petitioner.

Ground Two: Denial of effective assistance of Trial Counsel in violation of the United States Constitution Sixth Amendment & violation of the Fourth Amendment.

Supporting Facts: Petitioner's arrest was allegedly a result of a "open container" charge, concerning some substance (unknown & untested) in a blue cup. Upon being booked into the county jail some crack cocaine was discovered on his person & he was charged with it. If there was no probable cause to stop petitioner & then no proof of a open container violation, anything discovered after that was in violation of Petitioner's 4th Amendment Rights.

Ground Three: Ineffective Assistance of Trial Counsel in violation of the United States Constitution & Ineffective Assistance of Appellate Counsel.

Supporting Facts: Petitioner raised the following claims: His conviction & sentence was in violation of the U.S. Constitution; S.C. Constitution & laws of S.C.; he [a] failed to object to a defective indictment; [b] conceded Applicant's guilt; [c] failed to put the States case thru adversarial testing; [d] failed to challenge the chain of custody & admissibility of the drugs; [e] failed to object to the reasonable doubt charge; [f] failed to object to trial judges comments & jury prematurely discussed case; [g] failed to object to pitting of witnesses; [h] denied the Applicant a full & fair consideration of his 4th Amendment claim; [i] vouched for a police officer; [j] failed to object to the Solicitor bolstering of Captain Marsee; [k] failed to raise the issue of an amended indictment & failed to raise the issue of an illegal and excessive sentence (Appellate Counsel).

Ground Four: Denial of Due Process of Law & Equal Protection of the law in violation of the United States Constitution

Supporting Facts: Petitioner's PCR application contended his trial counsel (Kurt Tavernier) was ineffective & that his Appellate defense counsel (K. Hudgins) was ineffective. Neither of

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