REPORT AND RECOMMENDATION Petitioner Melvin Nelson ("Petitioner") is a state prisoner who filed this pro se 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)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 24, 25. On July 8, 2014, 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. 27. On August 7, 2014, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 33. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 24, be granted.
Petitioner is currently incarcerated in the South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 2005, Petitioner was indicted at the January term of the YorkCounty Grand Jury for Possession of Crack Cocaine with Intent to Distribute ("PWID") (2005-GS-46-1061). App. 220.1 Stephen D. Schusterman represented Petitioner in a jury trial that convened from June 22-23, 2005, and E.B. Springs and Jenny Desh represented the State. App. 1. Petitioner was tried in his absence before the Honorable Marc Westbrook. Id. After the trial, the jury found Petitioner guilty of PWID, and Judge Westbrook imposed a sealed sentence and ordered Petitioner be picked up on a bench warrant. App. 151-52; 155-56, 159. On January 10, 2007, the Honorable Edward W. Miller opened the sealed sentence previously imposed and announced that Petitioner had received a twenty-year sentence for the PWID conviction. App. 162-67.
Deputy Chief Appellate Defender Wanda H. Carter represented Petitioner on direct appeal. ECF No. 25-3. In his appellate brief, Petitioner argued: "The trial judge erred in allowing the testimony of a narcotics officer into evidence at trial." Id. at 4. Assistant Attorney General Julie Thames filed a brief on behalf of the State. ECF No. 25-4. The South Carolina Court of Appeals affirmed Petitioner's conviction in an unpublished opinion, finding that the issue argued was both abandoned and not preserved for appellate review. ECF No. 25-5. On December 31, 2008, the Court of Appeals issued a Remittitur. ECF No. 25-6.
Petitioner filed an application for Post-Conviction Relief ("PCR") on October 6, 2009 (2009-CP-46-4300). App. 168-173. When asked in his PCR Application to state the grounds onwhich he based his allegation that he was being held unlawfully, Petitioner wrote "See Page 3(a)." Page 3(a) is a "Motion for Appointment of Counsel" where Petitioner requested he be appointed PCR counsel and leave to amend his PCR Application. ECF No. 25-2. The State filed a Return to Petitioner's Application on March 18, 2010. App. 174-78. There, the State indicated that Petitioner made the following allegations in his PCR Application: "Constitutional Violations" and "Sentence exceeds the maximum prescribed by law." Id. at 175. A motions hearing convened on February 2, 2011, before the Honorable Paul M. Burch. App. 179-210. Petitioner was present and represented by Attorney Matthew Niemiec, and Karen Rattigan, of the South Carolina Attorney General's Office, appeared on behalf of the State. See id. In an Order filed April 27, 2011, the PCR court denied Petitioner's PCR Application in full, making the following findings of fact and conclusions of law:
This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility and weigh their testimony accordingly. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. Code Ann. § 17-27-80 (2003).
Ineffective Assistance of Counsel
In a post-conviction relief action, the applicant has the burden of proving the allegations in the application. Rule 71.1(e), SCRCP; Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where ineffective assistance of counsel is alleged as a ground for relief, the applicant must prove "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692 (1984); Butler, 286 S.C. 441, 334 S.E.2d 813 (1985). The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler, 286 S.C. 441, 334 S.E.2d 813 (1985). The applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
Courts use a two-pronged test in evaluating allegations of ineffective assistance of counsel. First, the applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its "reasonableness under professional norms." Cherry, 300 S.C. at 117, 385 S.E.2d at 625, (citing Strickland). Second, counsel's deficient performance must have prejudiced the applicant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. This Court finds the Applicant's claims concerning counsel are without merit and must be denied and dismissed.
As to the allegations trial counsel failed to adequately prepare for trial and failed to conduct any meetings with him, this Court finds Applicant's testimony not credible, while also finding counsel's testimony credible. Counsel testified the Applicant knew he was his attorney, and testified he made numerous unsuccessful attempts to contact Applicant. Further, counsel testified the Applicant never once called him or came to see him. Therefore, this Court finds any testimony on the Applicant's behalf regarding counsel's preparation is baseless, and that claim is without merit. Counsel further testified he reviewed the State's evidence and was as prepared as he could be without having his client to consult. This Court finds counsel reviewed all discovery material and was fully prepared under the circumstances. Further, this Court finds the Applicant has failed to present any evidence that he never met or consulted with counsel due to some error, omission, or fault of counsel. Therefore, the Applicant has failed to show that any resulting prejudice was caused by counsel's deficient performance. This claim is therefore denied and dismissed.
With regards to the allegation trial counsel failed to object to the admission of the drugs in this case, this Court finds this allegation is also without merit. The Applicant testified the drugs found on him should have been excluded at trial because the officers in this case did not have a reasonable suspicion to ask him out of the car and frisk him, and further testified the officers did not have probable cause to arrest him. After a review of the testimony presented at trial and relevant case law, this Court finds counsel was not ineffective for failure to object to the admission of the drugs in this case.
This Court first finds Applicant has not met his burden of proving counsel had a legitimate basis for challenging the stop of the automobile, his subsequent pat-down, or his eventual arrest. "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe a traffic violation has occurred." Whren v. U.S., 517 U.S. 806, 810, 116 S.Ct. 1769, 1772 (1996). Officer Marshall testified he stopped the vehicle Applicant was a passenger in because it was raining, state law requires the use of headlights and tail lights in the rain, and on one side of the vehicle the rear tail light and brake light were not functioning. (Tr. p. 60-61). Therefore, Officer Marshall properly stopped the vehicle for a traffic violation.
Further, "once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable search and seizures." Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333 n.6 (1977). The Supreme Court extended this rule to passengers of a lawfully detained motor vehicle based on the reasoning that "the danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car." Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 886 (1997). Officer Marshall testified the driver of the vehicle did not have a license, and he proceeded to arrest the driver after a computer check revealed the driver's license was suspended. (Tr. pp. 63-64). Officer Parker then arrived as backup, and he testified he asked Applicant to step out of the vehicle because he appeared nervous and was constantly looking over his shoulder. (Tr. p. 84). Officer Parker testified he asked Applicant for consent to search his person, and Applicant consented. (Tr. p. 84-85). Officer Parker testified that as he went to check Applicant's left pocket he felt something crumpled up like a ball, and Applicant immediately lowered his left hand in a manner that suggest he was "kind of scared." (Tr. p. 85). Officer
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