Parker v. Cartledge

• Decision Date: 10 June 2015
• Docket Number: CIVIL ACTION NO. 9:14-4331-RMG-BM
• Court: U.S. District Court — District of South Carolina
• Parties: TRAVIS PARKER, #240822, Petitioner, v. L. CARTLEDGE, WARDEN, Respondent.

TRAVIS PARKER, #240822, Petitioner, v. L. CARTLEDGE, WARDEN, Respondent.

CIVIL ACTION NO. 9:14-4331-RMG-BM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

June 10, 2015

REPORT AND RECOMMENDATION

Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed pro se on November 3, 2014.¹

The Respondent filed a return and motion for summary judgment on January 26, 2015. As the Petitioner is proceeding pro se, a Roseboro order was filed on January 27, 2015, advising the Petitioner that he had thirty-four (34) days to file any material in opposition to the motion for summary judgment. Petitioner was specifically advised that if he failed to respond adequately, the motion for summary judgment may be granted, thereby ending his case. After receiving extensions of time, Petitioner filed a response in opposition on May 14, 2015.

This matter is now before the Court for disposition.²

Procedural History

Petitioner was indicted in Cherokee County in October 2007 for murder [Indictment No. 07-GS-11-1212]. (R.pp. 566-567). Petitioner was represented by Assistant Public Defender Thomas Shealy, and after a trial by jury on August 11-13, 2008, was convicted on the murder charge. (R.pp. 1-485). The trial judge sentenced Petitioner to life without parole. (R.p. 493).

Petitioner filed a timely direct appeal. Petitioner was represented on appeal by Joseph L. Savitz, III, of the South Carolina Office of Appellate Defense, who filed an Anders³ brief seeking to be relieved as counsel and raising the following issue:

The trial judge committed reversible error when he neglected to instruct the jury on the defense of alibi.

See Petition, p. 3 (Court Docket No. 19-5, p. 4).

Petitioner did not file a pro se brief. The South Carolina Court of Appeals denied Petitioner's direct appeal and granted his counsel's motion to be relieved as counsel on February 23, 2010. See Parker v. State, Appellate Case No. 2010-UP-144 (Order filed February 23, 2010); Court Docket No. 19-7. The Remittitur was sent down on March 12, 2010. See Court Docket No. 19-8.

On November 2, 2010, Petitioner filed an application for post-conviction relief ("APCR") in state circuit court; Parker v. State of South Carolina, No. 2010-CP-11-860; raising the following issues:

Ineffective Assistance of Counsel

a. Counsel failed to present any witnesses on my behalf.

b. Counsel failed to prepare case for trial; and

c. Counsel failed to raise crucial objections during the trial.

(R.p. 497).

Petitioner was represented in his APCR by Ernest Hamilton, Esquire, and an evidentiary hearing was held on Petitioner's application on September 4, 2012. (R.pp. 506-557). In an order filed December 17, 2012 (dated December 7, 2012), the PCR judge denied relief on the APCR in its entirety. (R.pp. 558-565).

Petitioner then filed a timely appeal of the PCR court's order. Petitioner was represented on appeal by David Alexander, Esquire, of the South Carolina Office of Appellate Defense, who raised the following issue:

Whether trial counsel rendered ineffective assistance in derogation of Petitioner's Sixth Amendment right to counsel and Sixth Amendment right to confront the witnesses against him by failing to properly object to and preserve for appeal the inadmissibility of testimonial hearsay statements by the decedent ["Maraine Foote"] allegedly identifying Petitioner as his murderer where these statements were tainted by police suggestion?

See Petition, p. 2 (Court Docket No. 19-10, p. 3).

On September 24, 2014, the South Carolina Supreme Court denied Petitioner's writ of certiorari. See Court Docket No. 19-12. The Remittitur was sent down on October 10, 2014. See Court Docket No. 19-13.

In his Petition for writ of habeas corpus filed in this United States District Court, Petitioner raises the following issues:

Ground One: Ineffective Assistance of Trial Counsel where Trial Counsel failed toobject to the admission of Foote's statements.

Supporting Facts: I was prejudiced by the admission of Foote's statements. The State will likely point to the testimony of Jarvis [Thompson] and Nicole [Thompson] and claim that any error is harmless, but as pointed out, these witnesses were far from unimpeachable, and Haney's testimony not only corroborated Parker's [Petitioner] but showed that Nicole and Jarvis told an identical lie about a key portion of their testimony.

Ground Two: Ineffective assistance of Appellate Counsel for failing to argue Petitioner's Sixth Amendment right to confront his accuser.

Supporting Facts: Appellate counsel was ineffective for filing an Anders brief. When there was supportive facts that petitioner was denied due process and the right to confront his accusers hearsay testimony.

Ground Three: Trial counsel was ineffective for failing to object to the police officer given Petitioner's name to the victim from a prior incident.

Supporting Facts: The victim only knew the Petitioner by the name "Dick" he did not know the Petitioner by the name "Travis" until the police officer suggested the name "Travis" as a criminal whom they were pursuing. Counsel's failure in objecting to this omission prejudiced the Petitioner, and rendered the trial fundamentally unfair, and denied the Petitioner due process to effective assistance of counsel.

Ground Four: Trial counsel was ineffective for failing to object to hearsay statements.

Supporting Facts: Trial counsel performed deficiently in two ways. First he failed to preserve the issue of whether Foote's alleged hearsay statements were tainted by the police for appellate review. Second, Trial Counsel failed to raise any objection based on the Confrontation Clause. U.S. Const. Amend. VI. Had Trial Counsel properly raised and preserved the objections, which would have required suppression of Foote's alleged statements.

Ground Five: Denial of Due Process and Fundamental Fairness.

Supporting Facts: Parker was prejudiced because Foote's alleged statements were tainted by police suggestion, had Petitioner been able to raise the issue of the suppression of Foote's alleged statements on appeal, his conviction would be reversed. The police's suggestion of the name "Travis" was impermissible and required suppression of the statements regardless of any exceptions to the hearsay rule. Petitioner was denied equal protection of the law and due process.

Ground Six: Post-conviction relief counsel was ineffective for failing to raise the Applicant's Right to Confrontation.

Supporting Facts: The Confrontation Clause should be considered as part of the totality of the circumstances. The Petitioner's Sixth Amendment Right to Confront Foote as a witness was violated by the admission of Foote's statements. U.S. Const. Amend. VI. The PCR court failed to consider the impact of the Confrontation Clause because it stopped its analysis after finding that Trial Counsel performed adequately by raising the admissibility of Foote's statements in a pretrial motion.

Stopping its analysis at the point was error by the PCR court. Appellate Counsel candidly admits that PCR counsel did not assist his client in raising the Confrontation Clause, but since the Sixth Amendment analysis is inextricably intertwined with the taint flowing from the police interrogation and Parker himself raised the issue that his attorney failed to object to this evidence, the court must consider its impact on this case. Thus, this issue fits right along with the decision in the U.S. Supreme Court opinion pursuant to, Martinez v. Ryan, 132 S.Ct. 1309 (2012); accordingly, Petitioner is entitled to a hearing.

See Petition, pp. 5-10 & Attachment.

Discussion

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, while the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case; See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972); the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).

I.(Ineffective Assistance of Counsel Claims)

Petitioner argues that his trial counsel was ineffective for failure to object to the admission of Foote's statements (Ground One), for failing to object to the police officer giving Petitioner's name to Foote from a prior incident (Ground Three), and for failing to object to hearsay statements (Ground Four). Petitioner also contends that his direct appeal counsel was ineffective for failing to argue Petitioner's Sixth Amendment right to confront his accuser (Ground Two), and that his PCR counsel was ineffective for failing to raise Petitioner's right to confrontation (Ground Six).

a.

(Ground One and Part One of Ground Four⁴)

Petitioner raised Ground One and the first part of Ground Four (dealing with whether his trial counsel was ineffective for failing to preserve whether Foote's statements were tainted by the police) in his APCR, where Petitioner had the burden of proving the allegations in his petition. Counsel also raised these same claims in the PCR appeal to the State Supreme Court. Butler v. State, 334 S.E.2d 813, 814 (S.C. 1985), cert. denied, 474 U.S. 1094 (1986); see also Court Docket No. 19-10, p. 5. Therefore, these claims are properly exhausted for purposes of federal habeas review.

The PCR court rejected these claims, making relevant findings of fact and conclusions of law in accordance with S.C.Code Ann. §...