McGee v. Warden of Lieber Corr. Inst.

• Decision Date: 15 July 2022
• Docket Number: C. A. 5:21-2777-RMG-KDW
• Parties: Frankie Lee McGee, Petitioner, v. Warden of Lieber Correctional Institution, Respondent.
• Court: U.S. District Court — District of South Carolina

1

Frankie Lee McGee, Petitioner, v. Warden of Lieber Correctional Institution, Respondent.

C. A. No. 5:21-2777-RMG-KDW

United States District Court, D. South Carolina

July 15, 2022

REPORT AND RECOMMENDATION

Kaymani D. West United States Magistrate Judge

Frankie Lee McGee(“Petitioner”) is a state inmate who filed this 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 Civ. Rule 73.02(B)(2)(c)(D.S.C.) for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment.ECF Nos. 26, 27.On January 25, 2022, pursuant to Roseboro v Garrison, 528 F.2d 309(4th Cir.1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion.ECF No. 28.On February 3, 2022, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment, ECF No. 31 and Respondent filed a Reply to Petitioner's Response on February 10, 2022.ECF No. 36.

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 27, be granted, and this Petition be denied.

I.Background

The South Carolina Court of Appeals(“Court of Appeals”) summarized the facts of this case as follows:

On the night of May 3, 2009, Temika Ashford was visiting Reverend Tryon Eichelberger at his home in Columbia.They heard a noise in another part of the home, and Eichelberger went to investigate.Ashford heard Eichelberger ask, “[H]ow did you get in here?” and then a “commotion” and “hollering.”Because Ashford was afraid, she left the home, got in her car, and drove away.She drove around the block, and when she could not reach Eichelberger by phone, she returned to his house.She saw a husky man with a potbelly and receding hairline standing on the porch.He was dressed in a white shirt and jeans, wearing white gloves, and holding a metal pipe.She called 911, left the house, and drove down Farrow Road to wait on the police.While she was waiting, she noticed the man she had seen on the porch walking along the road, no longer carrying the pipe nor wearing the gloves.Once the police arrived at the home, Ashford returned there.

Officer Chauncey Duckett of the Columbia Police Department was dispatched to the scene.On his way there, while traveling on Farrow Road, he saw a light-skinned black man walking, wearing a white or light gray t-shirt and jeans.Once at the scene, he found Eichelberger lying on the floor bleeding heavily.Eichelberger's skull was cracked, he had a brain injury, and he lost a lot of blood.He died three months later as a result of his injuries.The police determined a metal tool had been used to pry open a side door to Eichelberger's home.Officer Duckett found a steel rod across the street from Eichelberger's home, in Larry Harp's yard.Officer Duckett also found a pair of white tube socks next to a light pole about twenty-five to thirty yards from the steel rod in the direction of Farrow Road.The socks and rod had blood on them.DNA analysis initially identified the blood on the items as Eichelberger's.Further testing revealed McGee's DNA inside the socks as well.The rod was consistent with the tool marks found at Eichelberger's home.

On the day of the attack, Harp saw a man he later identified as McGee in Eichelberger's yard at 3:00 p.m., talking on the phone and pacing.He saw him again in the yard at about 5:30 p.m. with a plate, napkin, and cup in his hand and eating, while Eichelberger worked in his garden.Harp testified McGee was wearing an athletic jersey and denim shorts and had a medium heavy build and light brown skin.Around midnight on the night of the attack, the police woke Harp because they discovered the rod in his yard.Harp informed the police the rod was not his and he did not know how it got there.The police later determined the rod was a winch rod, which is commonly used to tighten straps on a flatbed trailer.

After Ashford gave the police a description of the man she observed on the front porch, the police began looking for the suspect.Police found two men walking together, and one of them matched the description Ashford had given.Ashford said the man looked like the person she saw but he was not wearing the same clothes.However, the man was eliminated as the perpetrator through more police investigation and DNA testing.Later, Ashford was shown a series of photographic line-ups.In them, she saw two pictures she believed looked like the suspect; one of the two pictures was of McGee.She identified McGee's picture as the one that most resembled the man she saw on Eichelberger's porch.

In March 2010, officers visited Michelle Perry, who was a dispatcher with the cab company at which Eichelberger had worked.Eichelberger held church services in a building attached to the cab company's office.Officers showed Perry a picture of McGee and asked if she recognized him.She told them she had seen him two different times about a year before Eichelberger was attacked.The first time she saw him, he came to one of Eichelberger's church services too early one morning and waited about twenty-five minutes outside the office.She saw him again a few days later when he returned for a Bible study.

On May 2, 2009, the day before Eichelberger was attacked, a red Peterbilt tractortrailer truck was stolen from a business in Camden, where McGee lived.The truck was found the following day about one mile from Eichelberger's home.The theft was recorded by video surveillance, which was later broadcast on local news programs.Officer Sandra Thomas of the Columbia Police Department, McGee's sister, saw the video, recognized McGee, and contacted Crime Stoppers' anonymous tip line.The owner of the truck testified it was used to haul a flatbed trailer and would have contained a winch bar in its tool box.^[1] Police learned McGee had a commercial license to operate a tractor trailer that could pull a flatbed trailer, like the one stolen.

On March 17, 2010, officers interrogated McGee while he was incarcerated on an unrelated offense.McGee denied attacking Eichelberger but admitted he had been in that area of Columbia that night.He also said he had gone by Eichelberger's house that day and been on the porch of the house.He told the police that due to an athlete's foot condition, he had taken his socks off while in the area and left them by a dumpster at a store.He then said he left the socks by a light pole.McGee denied stealing the truck from Camden but said he moved a red Mack tractor-trailer truck^[2] while in Columbia.McGee told police he did not know what a winch rod was.He also admitted he had told his wife that after a drug dealer pointed a pistol at him, he hit the drug dealer with it on the night of Eichelberger's attack.The police were unable to locate the drug dealer McGee said that he hit.

¹An inventory was never performed to determine if the winch rod was missing from the truck.

² Peterbilt and Mack are both makers of trucks that are used to pull tractor trailers.

---------

App. 1393-95.[1]

Petitioner is currently incarcerated at the Lieber Correctional Institution of the South Carolina Department of Corrections.ECF No. 1at 1.He was indicted at the April 2010 term of the Richland County Grand Jury for murder and first degree burglary.App. 1607-1610.Petitioner proceeded to a jury trial on August 1-3, 8-10, 2011, before the Honorable Clifton Newman, Circuit Court Judge.App. 27 et. seq.The State was represented by Assistant Solicitors Kathryn Luck CampbellDolly J. Garfield, and Nicole Simpson, and Douglas Strickler Esq., Fielding Pringle, Esq., and Jennifer Davis, Esq. represented Petitioner.App. 27.The jury found Petitioner guilty of murder and first degree burglary.App. 1395.Judge Newman sentenced Petitioner to 30-years imprisonment on the burglary charge and life imprisonment for murder.App. 1318.

Petitioner appealed his convictions and sentences to the Court of Appeals.On appeal, Petitioner was represented by Appellate Defender Kathrine H. Hudgins, Esq. of the South Carolina Commission on Indigent Defense, Division of Appellate Defense.App. 1320-36.Petitioner filed a Final Brief of Appellant raising the following issues:

1.Did the trial judge err in admitting identification testimony based on a single photo line-up that was unduly suggestive and inherently unreliable?

2.Did the trial judge err in admitting evidence in regard to the theft of a truck in Camden when the theft does not meet an exception pursuant to Rule 404(b) and is not sufficiently linked to the charged crime to constitute res gestae?

App. 1323.Attorney Hudgins filed an Amended Final Brief on September 9, 2013, raising additional legal arguments.App. 1339-55.

The Court of Appeals issued a decision affirming Petitioner's conviction on April 13, 2014.App. 1392-99.Attorney Hudgins filed a petition for rehearing that the Court of Appeals denied on June 19, 2014.App. 1400-1402, 1404.Attorney Hudgins filed a Petition for Writ of Certiorari raising the following issue:

Did the Court of Appeals err in refusing to find that the trial judge erred in admitting identification testimony based on a single photo line-up that was unduly suggestive and inherently unreliable?

App. 1408.On December 4, 2014, the South Carolina Supreme Court denied the petition.App. 1446.

Petitioner filed an application for Post-Conviction Relief(“PCR”) on May 18, 2014.App. 1447-54.Petitioner asserted he was being held in custody unlawfully due to ineffective assistance of trial counsel.App. 1449-51.The State filed a Return and...