Owens v. Stirling

• Decision Date: 29 May 2018
• Docket Number: Case No. 0:16-cv-02512-TLW
• Parties: Freddie Owens, PETITIONER v. Bryan P. Stirling, Commissioner, South Carolina Department of Corrections; Willie D. Davis, Warden, Kirkland Correctional Institution, RESPONDENTS
• Court: U.S. District Court — District of South Carolina

Freddie Owens, PETITIONER v. Bryan P. Stirling, Commissioner, South Carolina Department of Corrections;Willie D. Davis, Warden, Kirkland Correctional Institution, RESPONDENTS

Case No. 0:16-cv-02512-TLW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

May 29, 2018

Order

This is a capital habeas corpus action brought pursuant to 28 U.S.C. § 2254 by Petitioner Freddie Owens against Respondents Bryan P. Stirling and Willie D. Davis (collectively, the State). For the reasons set forth below, the Court grants the State's motion for summary judgment and denies Owens' habeas petition.

I. Factual and Procedural History

A. Trial and First Sentencing

Irene Graves was murdered on November 1, 1997 during an armed robbery of the Speedway convenience store where she worked in Greenville County, South Carolina. Owens was indicted in October 1998 for murder, armed robbery, possession of a firearm during the commission of a violent crime, and criminal conspiracy. He was represented by John M. Rollins Jr. and Karl B. Allen in a jury trial that began on February 8, 1999. The jury returned a guilty verdict on all counts.

During the trial's sentencing phase, after hearing evidence and argument, the jury returned a recommendation of death on the murder conviction, finding as an aggravating circumstance that the murder was committed while in the commission of a robbery while armed with a deadly weapon. The presiding judge sentenced Owens to death for murder, thirty years consecutive for armed robbery, five years concurrent for possession of a weapon during a violent crime, and five years concurrent for criminal conspiracy.

B. First Direct Appeal

Owens timely appealed and was represented on appeal by Rollins, Allen, and Katherine Carruth Link, Assistant Appellate Defender with the South Carolina Office of Appellate Defense. On appeal, he raised issues relating to the trial court's jurisdiction, evidentiary rulings, the denial of a new trial, and sentencing. On September 4, 2001, the South Carolina Supreme Court affirmed his convictions, but vacated his sentence for possession of a firearm during commission of a violent crime, reversed his death sentence, and remanded for a new sentencing proceeding. State v. Owens (Owens I), 552 S.E.2d 745, 759-61 (S.C. 2001), overruled on other grounds by State v. Gentry, 610 S.E.2d 494 (S.C. 2005).

C. Second Sentencing

On remand, Owens was represented by Alex Kinlaw Jr. and Steve W. Sumner. At this sentencing, he waived his right to a jury and proceeded with a bench sentencing. After hearing evidence and argument, the presiding judge sentenced Owens to death.

D. Second Direct Appeal

Owens timely appealed and was represented on appeal by Joseph L. Savitz III, Acting Chief Attorney with the South Carolina Office of Appellate Defense. The sole issue on appeal involved the propriety of the circuit judge's colloquy with Owens regarding his jury waiver. OnDecember 20, 2004, the South Carolina Supreme Court again reversed his death sentence and remanded for a new sentencing proceeding. State v. Owens (Owens II), 607 S.E.2d 78, 80 (S.C. 2004).

E. Third Sentencing

On remand, Owens was represented by Everett P. Godfrey Jr. and Kenneth C. Gibson.¹ This time, he proceeded before a jury, and after hearing evidence and argument, the jury returned a recommendation of death as to the murder conviction, finding as aggravating circumstances that the murder was committed while in the commission of a robbery while armed with a deadly weapon and that the murder was committed while in the commission of a larceny with the use of a deadly weapon. On November 11, 2006, the presiding judge once again sentenced Owens to death.

F. Third Direct Appeal

Owens timely appealed and was represented on appeal by Savitz and LaNelle C. DuRant, both with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Appellate counsel raised the following issues:

1. The trial judge abused his discretion when he summarily disqualified a potential juror, Sonya Ables (Juror Number 1), solely because she "went to [her] pastor and talked to him about [the death penalty]," as he incorrectly believed "there is a case right on point, that if a woman talks to her priest after she's been called as a juror about capital punishment, she is disqualified under the law."

2. The trial judge committed reversible error by admitting Owens' prison disciplinary records, as they violated the rule against hearsay, as well as theSixth and Fourteenth Amendments.

3. The trial judge committed reversible error by allowing the Solicitor to argue in closing that the conditions of life imprisonment in general justified a death sentence for Owens, as this argument injected an arbitrary factor into the jury sentencing considerations in violation of S.C. Code Section 16-3-25(C)(1).

ECF No. 16-4 at 222. On July 14, 2008, the South Carolina Supreme Court affirmed his death sentence. State v. Owens (Owens III), 664 S.E.2d 80, 82 (S.C. 2008). He then submitted a petition for rehearing, which was denied.

After the denial of Owens' petition for rehearing, his new counsel, John H. Blume and Keir M. Weyble, filed a petition for a writ of certiorari from the United States Supreme Court. On January 21, 2009, the Supreme Court denied the petition. Owens v. South Carolina, 555 U.S. 1141 (2009).

G. First PCR Action

Owens then submitted a pro se petition for post-conviction relief (PCR) on January 29, 2009. Weyble and Emily C. Paavola were appointed to represent Owens in the PCR proceeding. They submitted on his behalf an amended petition and then a second amended petition raising the following claims:

10(a) Applicant was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution during jury selection at his 2006 capital re-sentencing proceeding.

11(a) Supporting Facts: Trial counsel's performance during jury selection was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel's acts or omissions included the following:

1) Counsel failed to object to statements by the solicitor, and similar instructions by the trial court, that the State may only seek death where aggravating circumstances are present, which improperly suggested to potential jurors that the aggravating circumstances hadalready been found.

2) Counsel failed to object when the trial judge erred by disqualifying a potential juror, Sonya Ables (Juror Number 1), solely because she "went to [her] pastor and talked to him about [the death penalty]," as the trial judge incorrectly believed "there is a case right on point, that if a woman talks to her priest after she's been called as a juror about capital punishment, she is disqualified under the law."

10(b) Applicant was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution, during his 2006 capital sentencing proceeding.

11(b) Supporting Facts: Trial counsel's performance during jury selection was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel's acts or omissions included the following:

1) Counsel failed to object and/or request proper instructions from the court when the State played a crime scene video without further explanation or analysis. 2006 Tr. at 1076. The crime scene video shows two masked men, but their faces are not identifiable. One of the masked men is primarily shown in the video. He stands behind the counter, points a gun at the clerk, and appears to shoot the clerk before the two men run out of the convenience store. Applicant's codefendant, Steven Golden, testified at Applicant's previous trials that it was he (Golden) who is primarily visible in the video. The State then offered an analysis as to why it believed the fatal shot came from the other man standing off-camera. The jury at Applicant's 2006 resentencing heard no analysis about who appears in the video. They were simply instructed that Applicant had already been found guilty of murder, and then they were shown the video without explanation. The trial judge at the 2006 re-sentencing instructed the jurors that they could consider whether Applicant had "minor participation" in the crime as a mitigating circumstance. 2006 Tr. at 1592. But, without further instruction, the video misled the jury to believe that there was conclusive video-graphic evidence that Applicant fired the fatal shot, thereby foreclosing consideration of both the "minor participation" mitigating circumstance, and the related possibility that Applicant, though perhaps present, had not been the triggerman.

2) Counsel failed to object to improper and prejudicial opinion testimony from Officer Joe Wood that Applicant gave him "cold chills," and the solicitor's reliance on that testimony in closing argument. 2006 Tr. at 1093 and 1559.3) Counsel failed to object to victim impact testimony regarding the effect of the victim's death on the victim outreach coordinator. 2006 Tr. at 1274. Such testimony was outside the scope of proper victim impact evidence, and counsel's failure to lodge an appropriate objection was unreasonable and prejudicial. Counsel also failed to object to hearsay testimony from the victim outreach coordinator concerning statements that the victim's children made to her after the victim's death. 2006 Tr. at 1268-1271. These statements violated the evidentiary rules of South Carolina, as well as the confrontation and the due process clauses of the state and federal constitutions.

4) Counsel failed to preserve the state and federal constitutional issues related to the admission of a list of disciplinary infractions by failing to object on the basis of the Confrontation Clause and due process. On appeal, the South Carolina Supreme

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