Mixon v. ATTORNEY GENERAL OF STATE OF SC

• Decision Date: 13 April 1982
• Docket Number: Civ. A. No. 81-682-8.
• Citation: 538 F. Supp. 190
• Court: U.S. District Court — District of South Carolina
• Parties: Gloria Ann MIXON, Petitioner, v. The ATTORNEY GENERAL OF the STATE OF SOUTH CAROLINA, Respondent.

538 F. Supp. 190

Gloria Ann MIXON, Petitioner, v. The ATTORNEY GENERAL OF the STATE OF SOUTH CAROLINA, Respondent.

Civ. A. No. 81-682-8.

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

April 13, 1982.

Deborah A. Lindberg, Columbia, S. C., for petitioner.

Daniel R. McLeod, Atty. Gen., of S. C., Columbia, S. C., for respondent.

ORDER

BLATT, District Judge.

This habeas corpus action, brought pursuant to 28 U.S.C. § 2254, is before the court upon respondent's motion for summary judgment, to which petitioner has responded after an appropriate warning under Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Petitioner challenges her incarceration by South Carolina authorities on the grounds that she is being held in violation of the Constitution, laws, or treaties of the United States. The record includes a report and recommendation of the United States Magistrate made in accordance with the local rule of this District concerning reference of prisoner cases under 28 U.S.C. § 636(b)(1)(B). In the Matter of Authority of United States Magistrates, Rule 3(a) (May 9, 1977) (local rule). See, e.g., Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974); Mitchell v. Beaubouef, 581 F.2d 412 (5th Cir. 1978), reh. denied, 586 F.2d 842 (5th Cir. 1978), cert. denied, 441 U.S. 966, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979); Schleicher v. Wyrick, 529 F.2d 906 (8th Cir. 1976); Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir. 1975). Under 28 U.S.C. § 636,

a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

28 U.S.C. § 636(b). E.g., Blasingame v. Estelle, 604 F.2d 893 (5th Cir. 1979); Orand v. United States, 602 F.2d 207 (9th Cir. 1979); United States v. Raddatz, 592 F.2d 976 (7th Cir. 1979). See also Rule 8(b)(4), Rules Governing Section 2254 Cases. Absent timely objection from a dissatisfied party, however, the scope of this court's review of the magistrate's report is more limited. Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). See 28 U.S.C. § 636(b)(1)(B); Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir. 1975). Cf. United States v. Walters, 638 F.2d 947 (6th Cir. 1981) (failure to object to magistrate's report constitutes a waiver of right to appeal from district court's order adopting that report). Nonetheless, while the level of scrutiny entailed by the district court's review of the report and recommendation of the magistrate depends on whether objections thereto have been filed, e.g., Webb v. Califano, 468 F.Supp. 825 (D.C.E.D.Cal. 1979), in either case "the district judge is free, after review, to accept, reject or modify any of the magistrate's findings or recommendations." United States ex rel. Henderson v. Brierley, 468 F.2d 1193 (3rd Cir. 1972). See Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir. 1975). In the instant case, plaintiff did not advance any objections to the magistrate's report.

After a careful review of the record, this court finds the magistrate's report to be an accurate summary of the facts in the instant case, and that report is incorporated into this order by specific reference thereto. In September, 1979, petitioner and two other individuals, Cecil Collins and Larry Smith,¹ were indicted by the Florence County Grand Jury on the charge of possession of phencyclidine (PCP) with intent to distribute. On October 5, 1979, petitioner, through her retained counsel, Frederick K. Jones, filed a pretrial motion for the production of evidence favorable to her under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Petitioner's case went to trial before the Honorable John Hamilton Smith beginning on December 5, 1979; she was convicted on the possession with intent to distribute charge and sentenced to custody for five (5) years. On December 10, 1979, however, petitioner moved for a new trial based upon the State's failure to provide her with a copy of a statement by Collins that she asserted fell within the scope of her Brady motion;² that motion was granted by Judge Smith. The State appealed that order to the South Carolina Supreme Court, which reversed the trial court's decision. State v. Mixon, 274 S.E.2d 406 (S.C.1981). Subsequently, petitioner filed the present action, based solely on the withholding of "exculpatory information following a Brady motion ...." Application for Writ of Habeas Corpus at 4.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that, irrespective of good or bad faith, suppression by the prosecution of evidence favorable to a defendant who has requested it violates due process where such evidence is material to either guilt or punishment. Brady imposes an affirmative duty on the prosecution to produce at the appropriate time requested evidence that is materially favorable to the accused, either as direct or impeaching evidence. Brady is not a rule of discovery; it is a rule of fairness and minimum prosecutorial obligation. United States v. Beasley, 576 F.2d 626, 630 (5th Cir. 1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979) citing United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). See also United States v. Campagnuolo, 592 F.2d 852, 859 (5th Cir. 1979). The obligation to disclose is measured by the "character of the evidence, not the character of the prosecutor." Agurs, 427 U.S. at 110, 96 S.Ct. at 2400.

The Agurs decision, following Brady, articulated three distinct situations to which the Brady doctrine may be applicable. 427 U.S. at 103-106, 96 S.Ct. at 2397-2398. The defense need only demonstrate that the prosecutor suppressed material evidence favorable to the defendant in order to establish a violation of one of the three categories of nondisclosure cases set forth in Agurs. Each category requires a separate analysis, however, and has a distinct test for materiality to determine whether the alleged suppression was so fundamentally unfair as to deny the due process right of a fair trial. If the suppressed evidence is then found to be material, the conviction cannot stand.

Under the first category of nondisclosure discussed in Agurs, where the prosecution knew or should have known that its case contained perjured testimony, e.g., Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), the test of materiality is so applied that the conviction will be set aside if there is "any reasonable likelihood" that the false testimony "could have affected" the jury's judgment. Agurs 427 U.S. at 103, 96 S.Ct. at 2397; United States v. Anderson, 574 F.2d 1347, 1352-53 (5th Cir. 1978); United States v. Hedgeman, 564 F.2d 763, 766 (7th Cir. 1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978); United States v. Brown, 562 F.2d 1144, 1150 (9th Cir. 1977).

Under the second category of nondisclosure set forth in Agurs, where the prosecution fails to respond to a defendant's specific request for information, e.g., Brady v. Maryland, a new trial must be granted if the suppressed evidence "might have affected the outcome." Agurs 427 U.S. at 104, 96 S.Ct. at 2397. Monroe v. Blackburn, 607 F.2d 148, 151-52 (5th Cir. 1979); United States v. Goldberg, 582 F.2d 483, 489-90 (9th Cir. 1978); cert. denied, 440 U.S. 973, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1971); United States v. Sutton, 542 F.2d 1239, 1242-43 (4th Cir. 1976). The mere possibility that undisclosed information might have helped the defendant is, however, insufficient to establish "materiality." United States v. Jackson, 579 F.2d 553 (10th Cir. 1978) cert. denied, 439 U.S. 981, 99 S.Ct. 569, 58 L.Ed.2d 652 (1978). Further, for the defense request under this category to be considered sufficiently specific, it must provide the prosecutor with notice of exactly what the defense desires. Agurs 427 U.S. at 106, 96 S.Ct. at 2398; United States v. DiCarlo, 575 F.2d 952, 959-60 (1st Cir. 1978); cert. denied 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 129 (1978); Marzeno v. Gengler, 574 F.2d 730, 736 (3rd Cir. 1978); United States v. Mackey, 571 F.2d 376, 389 (7th Cir. 1978); United States v. McCrane, 547 F.2d 204, 207-08 (3rd Cir. 1976).

In the third category of nondisclosure set out in Agurs, where the defendant fails to request, or only generally requests, exculpatory evidence, e.g., United States v. Agurs, reversal is necessary only if the undisclosed evidence "creates a reasonable doubt that did not otherwise exist." Agurs 427 U.S. at 112, 96 S.Ct. at 2401; United States v. Alberico, 604 F.2d 1315 (10th Cir. 1979); cert. denied, 444 U.S. 992, 100 S.Ct. 524, 62 L.Ed.2d 422 (1979); Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978); Ostrer v. United States, 577 F.2d 782, 786 (2nd Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1018, 59 L.Ed.2d 73 (1979); United States v. DiCarlo; United States v. Mackey. Thus, a greater showing of materiality is required when the request is absent or is general than when the request is specific.

Circuits vary on what constitutes a general request. A request for any material bearing adversely on the character and reputation of named witness has been deemed a general request. Ostrer at 786; also, a request for information relating to material inconsistencies between statements given by any person has been deemed a general request. Mackey at 389. In order to be deemed specific, the request must, minimally, focus on a particular witness. Id. Furthermore, it has been held that a defense request for "all Brady material or for anything exculpatory is equivalent to no request at all." United States v. Weiner, 578 F.2d 757, 767 (9th Cir. 1978), cert. denied, 439 U.S. 981...