McLaurin v. Warden McCormick Corr. Inst.

• Decision Date: 25 October 2022
• Docket Number: Civil Action 6:21-3936-JFA-KFM
• Parties: Brent Christopher McLaurin, Jr., also known as Brent Christopher McLauren, Jr., Petitioner, v. Warden McCormick Correctional Institution, Respondent.
• Court: U.S. District Court — District of South Carolina

1

Brent Christopher McLaurin, Jr., also known as Brent Christopher McLauren, Jr., Petitioner, v. Warden McCormick Correctional Institution, Respondent.

Civil Action No. 6:21-3936-JFA-KFM

United States District Court, D. South Carolina, Greenville Division

October 25, 2022

REPORT OF MAGISTRATE JUDGE

Kevin F. McDonald United States Magistrate Judge

The petitioner, a state prisoner proceeding pro se seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review posttrial petitions for relief and submit findings and recommendations to the district court.

I. BACKGROUND

The petitioner is presently incarcerated at McCormick Correctional Institution in the South Carolina Department of Corrections. During its June 2014 term, the Pickens County Grand Jury indicted the petitioner for grand larceny (2014-GS 39-0499), entering a bank with the intent to steal (2014-GS-39-0497), and armed robbery (2014-GS-39-0498). On February 17, 2015, the petitioner moved to relieve counsel and proceed toward trial pro se. After an extensive colloquy and motion hearing, the Honorable R. Scott Sprouse granted the petitioner's motion (app. 1-15). On April 19 2015, the Solicitor's Office dismissed the charge of armed robbery. On May 18-19, 2015, the petitioner proceeded to trial as a pro se defendant with former counsel, John W. DeJong, serving as standby counsel (app. 17-508). Assistant Solicitor for the Thirteenth Judicial Circuit Brandi Batson Hinton prosecuted the case. The trial was presided over by the Honorable John C. Hayes, III. A jury convicted the petitioner on his remaining charges of grand larceny and entering a bank with the intent to steal. Judge Hayes sentenced the petitioner to thirty years for entering a bank with the intent to steal and to ten years for grand larceny, with the two sentences running concurrently (app. 507-08).

A. Direct Appeal

Robert M. Pachak of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a brief on the petitioner's behalf pursuant to Anders v. California on October 25, 2016 (doc. 22-2). Counsel raised a single issue for review: “Whether the trial court erred in failing to grant a directed verdict to the charge of entering a bank with intent to steal and grand larceny when the State failed to present any substantial evidence beyond a reasonable doubt [sic] the identity of the person who entered the bank?” (id. at 4).

On March 21,2017, the petitioner filed a pro se response to the Anders brief, wherein he chiefly complained about the condition of the trial transcript, questioned the transcript's verbatim accuracy, admonished the destruction of the recordings after the transcript was created, and stated:

[T]he office of so called Appellate Defense, meanwhile, did get around to affording appellate with what appeared to be a copy of some trial transcript, however, upon careful perusal, the purported “transcript” was clearly nothing but a sanitized, poorly altered; revised “version” [sic] and one, sadly which can be of no use to the Court of Appeals, or anyone else for that matter. ...

Appellants nor their lawyers can ever be certain that any so called transcript is actually a verbatim representation. In my own case, I am able to clearly see that major portions of the so called transcript have been cleaned up, so to speak. Bench conferences are not on the record, nor are motions I made and neither is dialog between myself and the solicitor or others in the court room.

(Doc. 22-3 at 2-3). The petitioner then argued for formal charges against the State and that spoliation prevented the Court of Appeals from conducting meaningful appellate review (id. at 4-5). The South Carolina Court of Appeals dismissed the appeal by unpublished opinion No. 2017-UP-376 on October 11,2017 (doc. 22-4). The petitioner sought certiorari from the South Carolina Supreme Court, which was denied on November 2, 2017 (doc. 22-5).

B. Post-Conviction Relief

The petitioner filed a pro se application for post-conviction relief (“PCR”) on August 6, 2018 (app. 510). The State served a return, partial motion to dismiss, and motion for more definite statement on March 19, 2019 (app. 521). As summarized by the return, the petitioner raised the following claims in his PCR application:

1. Constitutional Violations

a. Fifth Amendment to the United States Constitution

b. Sixth Amendment to the United States Constitution

c. Fourteenth Amendment to the United States Constitution

d. Article 1, Section 3 of the South Carolina Constitution

e. Article 1, Section 14 of the South Carolina Constitution

f. Ineffective Assistance of (Trial) Counsel

2. Ineffective Assistance of (Trial) Counsel.

a. “My attorney failed to conscientiously discharge his professional responsibilities while handling my case.”

b. “My attorney failed to act as a diligent conscientious advocate on my behalf.”

c. “My attorney did not have my best interest in mind while he was employed as my professional advocate.”

d. “My attorney failed to serve my cause in good faith.” e. “My attorney neglected to do the necessary investigations to properly prepare for my case.”

f. “My attorney did not try to have my case settled in a manner that would have been to my best advantage.”

g. “My attorney, knowing that I was illiterate to the legal process and complexities of a trial as well as the fact that I was an elderly man with numerous health issues, and that I did not fully understand the consequences involved.”

h. “My attorney never consulted with me about the possible consequences of proceeding to trial.”

i. “My attorney failed to file any effective pretrial motions on my behalf.”

j. “My attorney failed to inform me of the dangers associated with self-representation.”

k. “Because of my attorney's gross neglect and numerous mistakes and legal errors, Applicant has been subjected to unjust trial and conviction.”

3. Ineffective Assistance of (Appellate) Counsel

a. Failed to raise issues on appeal

4. Prosecutorial Misconduct

(App. 522-23). A PCR evidentiary hearing was conducted on October 22, 2019, before the Honorable Edward W. Miller (app 531-51). The petitioner was represented by Rodney Richey, and the State was represented by Assistant Attorney General Taylor Smith (app. 531). At the outset of the hearing, the petitioner, through counsel, abandoned all of the allegations of his application with the exception of the claim that his former attorney, Mr. DeJong, was constitutionally ineffective for failing to conduct an adequate pretrial investigation, which the petitioner argued forced him to relieve counsel and represent himself at trial (app. 536). The PCR court heard testimony from the petitioner and Mr. DeJong (app. 540, 547). The PCR court found no merit to the allegation, ruling from the bench that the application should be dismissed and filing a subsequent order to the same effect on February 18, 2020 (app. 550, 552-65).

C. Post-Conviction Relief Appeal

On January 22, 2021, Wanda H. Carter, Deputy Chief Appellate Defender of the South Carolina Commission on Indigent Defense, filed and perfected a Johnson^[1]petition on the petitioner's behalf, seeking certiorari to appeal the decision of the PCR court (doc. 22-7). The petitioner raised a single issue on PCR appeal: “Trial counsel erred in failing to object to petitioner's motion to appear pro se because the motion was arguably one to obtain counsel of his choice for trial” (id. at 3). The petitioner filed a pro se response to the Johnson petition on April 1, 2021 (doc. 22-8). Therein, the petitioner argued: 1) a directed verdict should have been granted in his favor; 2) Mr. DeJong violated the order of the court and continued to represent the petitioner; 3) Mr. DeJong gave false testimony at the PCR hearing; and 4) the petitioner's initial PCR attorney, Mr. Thompson, informed the petitioner he could not help him in any way and that such attorney allegedly instructed the judge not to let the petitioner out of prison (id. at 1). The matter was transferred to the South Carolina Court of Appeals on April 14, 2021 (doc. 22-9), and on September 14, 2021, the Court of Appeals issued an order denying certiorari and dismissing the appeal (doc. 2210). The remittitur was issued on October 12, 2021 (doc. 22-11).

D. Federal Petition

On December 6, 2021, the petitioner filed a petition for writ of habeas corpus relief under § 2254 in this court (doc. 1). In his petition, the petitioner raises the following ground for relief: “The State did not prove beyond a reasonable doubt that I entered the bank. Only 1 witness stated that it was I who entered. I did not enter the bank” (id. at 6; doc. 11-1 at 5). On May 18, 2022, the respondent filed a return and motion for summary judgment (docs. 22, 23). On May 19, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately (doc. 24). After requesting and receiving three extensions of time (docs. 26, 27, 29, 30, 32, 33), the petitioner filed a response in opposition to the motion for summary judgment on September 1, 2022 (doc. 35). The respondent then filed a reply on September 8, 2022 (doc. 37). Accordingly, this matter is now ripe for review.

II. APPLICABLE LAW AND ANALYSIS

A. Legal Standards

1. Summary Judgment

Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”...