Patrick v. Warden

• Decision Date: 27 January 2016
• Docket Number: C/A No. 5:14-cv-4367-BHH-KDW
• Court: U.S. District Court — District of South Carolina
• Parties: Tyrone Patrick, #233697, Petitioner, v. Warden, Perry Correctional Institution, Respondent.

Tyrone Patrick, #233697, Petitioner, v. Warden, Perry Correctional Institution, Respondent.

C/A No. 5:14-cv-4367-BHH-KDW

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

January 27, 2016

REPORT AND RECOMMENDATION

Tyrone Patrick ("Petitioner"), a state prisoner, filed this pro se Petition for 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) (D.S.C.), for a Report and Recommendation ("Report") on Respondent's Motion for Summary Judgment and Return. ECF Nos. 20, 21. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 22. Petitioner filed a Response in opposition to Respondent's Motion. ECF No. 26. Respondent did not file a reply to Petitioner's Response. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment be granted.

I. Procedural History

Petitioner is currently incarcerated at Perry Correctional Institution, part of the South Carolina Department of Corrections prison system. Pet. 1, ECF No. 1. On October 13, 2009, a Pickens County Grand Jury indicted Petitioner on one count of trafficking cocaine base (crack cocaine). App. 98-99.¹ Also on October 13, 2009, the Pickens County grand jury indicted Petitioner on one count of possession of cocaine base with intent to distribute one-half mile from a school, App. 100-01, and one count of possession of a weapon during the commission of a crime. App. 102-03. On April 13, 2011, a jury trial was begun before Honorable Judge G. Edward Welmaker ("the plea court") with the State of South Carolina represented by Assistant Solicitor Sam Tooker and Petitioner represented by Attorney Frank Eppes ("plea counsel"). App. 1. The jury was sworn in and the direct testimony of one witness was presented when plea counsel indicated to the plea court that Petitioner wished to enter an Alford plea to all three pending charges.² App. 3. Upon early questioning by the plea court, Petitioner said that he was only entering a plea because of his mother, App. 4, and at a later point, Petitioner asked the plea court whether "prior bad acts" and his "mere presence at the scene of a crime" would be enough to convict him. App. 6. At that point, Petitioner's attorney told the plea court that he had explained the law of constructive possession to Petitioner and had told him that it was a factual issue that the jury would have to decide. App. 7. The plea court also stated that the issue was for the jury to "decide . . . based on the full law that I give them." App. 8. Then, Petitioner spoke to his mother, who was at the hearing with him,³ indicating that the jury would be instructed and then he would "have a chance, because this ain't right." Id. Petitioner thought that with the proper instruction the jury would not find him guilty of drug-related criminal offenses when thedrugs were "claimed by another person." App. 8. After an approximately 30 minute break in the proceedings, Petitioner told the plea court that he wanted to enter a guilty plea. App. 9. Petitioner then answered "Yes, sir" to each of the plea court's questions about whether he wanted to give up the trial-related rights that the court had explained to him and that he was satisfied with his attorney's services. Petitioner also declined the plea court's offer of an opportunity to discuss anything further with counsel and answered the court's inquiry as to his understanding of the discussions he had with counsel, stating "I've understood everything, sir." App. 10. However, immediately thereafter Plaintiff spoke directly to his mother and told her that he was pleading, but that he wanted to ask the plea court a question about the sufficiency of some of the State's evidence. At that point, the plea court responded "Mr. Patrick, do you want to enter your plea or not." App. 10-11. Petitioner responded, "I'm pleading, I'm pleading, I'm pleading. I just wanted to ask you this." App. 11. The plea court responded that it did not want to force Petitioner to plead "in anyway," but reminded him that there was "a jury waiting" if he wanted to proceed with the trial. The plea court then asked Petitioner again if he understood the rights he was giving up by pleading guilty and Petitioner responded, "Yes, sir." App. 11. After hearing from the State and plea counsel that the guilty plea included a negotiated sentence of 20 years, the plea court asked Petitioner if he still wanted to enter an Alford plea, to which Petitioner responded "I'm entering this plea of guilty, sir, because it is led [sic] to me that if I'm found guilty that I will get way more time than this twenty-year offer." App. 12 (emphasis added). The plea court then explained to Petitioner that the court, not the prosecutor, would decide any sentence after a jury verdict and then explained the potential maximum sentences for each charge and asked Petitioner if he understood. Petitioner responded, "Yes, sir." App. 13. The plea court then asked Petitioner if he had been truthful and whether he understood each of the three charges to which he was pleading. Petitioner responded that he had been truthful and understood thecharges. App. 14-15. Petitioner then testified before the plea court about his difficult background and his desire to have a chance for a better existence. He also directly asked the plea court if, having heard everything about his background, it would have given him "another chance." App. 21. The court responded that it could not answer that question, but encouraged him to make good of his time in prison by mentoring younger prisoners and undertaking drug rehabilitation, which the judge said he would recommend. App. 22. Petitioner again questioned whether his "mere presence of [sic] a house" was worth 20 years, again speaking directly to his mother as well as to the court. App. 23. After hearing from the State and plea counsel that some other undisclosed charges then-pending against Petitioner were going to be dropped in connection with the plea, the plea court imposed a 20-year sentence on the trafficking charge, and five-year concurrent sentences on the remaining two charges. App. 23-24.

Petitioner, through plea counsel, filed a timely direct appeal from the guilty plea and sentences. ECF No. 21-2; State v. Patrick, No. 2011190628 (S.C. Ct. App.). In compliance with South Carolina Rules of Appellate Procedure ("SCRAP") Rule 203(d)(1)(B)(iv), plea counsel included on the notice of appeal a statement informing the court that he did "not believe there [were] any issues which can be reviewed on appeal." ECF No. 21-2. On May 6, 2011, plea counsel wrote a letter to Petitioner informing him that he had "twenty (20) days from the date on this letter to inform the South Carolina Court of Appeals in writing of any arguable basis that there are issues preserved for appeal." ECF No. 21-4. On May 19, 2011, Petitioner filed a five-five-page letter to the Court of Appeals, raising the following issues (restated): 1) the affidavit for the search warrant did not support a finding of probable cause because the confidential informant was unreliable and the affidavit contained false information; 2) plea counsel was ineffective for failing to subpoena a witness who could have exonerated Petitioner by saying that the drugs found during the search were not his, by failing to raise issues before trial thatPetitioner wanted raised, and by "tricking" Petitioner into pleading guilty by saying he could raise these issues on appeal but then not raising them; 3) the plea court committed prejudicial error by refusing to release the confidential informant's statements before trial; 4) the trial court committed prejudicial error by admitting evidence of irrelevant prior bad acts; 5) the trial court should have suppressed eyewitness identification testimony; 6) whether mere presence in a house where drugs were found was sufficient evidence to convict; 7) whether guns seized, but not listed on a search warrant, should have been suppressed, and 8) whether the entire search should have been found illegal because law enforcement did not knock on the door to announce their presence before knocking it down.

Although he included legal argument regarding some issues, with the exception of the second issue (ineffective assistance of counsel) ⁴ and the third issue relating to the statement of the confidential informant,⁵ Petitioner did not specifically discuss any efforts that were made byhimself or plea counsel to preserve each of the issues in the plea court. However, he concluded his pro se brief by stating that he only pleaded guilty because he did not have his witnesses and he was told he could raise the issue of the unreliability of the confidential informant and reasonableness of the search on appeal. He also informed the court that he could not present his whole argument in his letter because he could not go to the law library at his place of incarceration. ECF No. 21-5. On June 3, 2011, the South Carolina Court of Appeals dismissed the direct appeal, holding that Petitioner had not shown that the issues he attempted to raise had been "raised to or ruled upon by the circuit court judge" and his counsel had asserted no "issues that can be reviewed on appeal." ECF No. 21-6; see supra notes 4 and 5. The remittitur was sent to the Pickens County Clerk of Court on June 21, 2011. ECF No. 21-7. Petitioner filed a post-post-conviction relief ("PCR") application on January 20, 2012, ECF No. 21-8, raising the following grounds for relief (summarized and restated) in a 184-page application:

(a) ineffective assistance of counsel for failing to object to an improper jury instruction and to the plea court's failure to "fully

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