Perry v. Warden Broad River Corr. Inst.

• Decision Date: 01 February 2012
• Docket Number: C/A No. 5:10-2346-TMC
• Parties: Ernest Dwight Perry, Petitioner, v. Warden Broad River Correctional Institution, Respondent.
• Court: U.S. District Court — District of South Carolina

Ernest Dwight Perry, Petitioner,

v.Warden Broad River Correctional Institution, Respondent.

C/A No. 5:10-2346-TMC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ORANGEBURG DIVISION

Dated: February 1, 2012

OPINION & ORDER

Petitioner Ernest Dwight Perry ("Petitioner"), a state prisoner proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 2, 2010, raising numerous grounds for relief. (Dkt. # 1).¹ On March 30, 2011, Respondent filed a Motion for Summary Judgment. (Dkt. # 18). Because Petitioner is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), on March 31, 2011, advising Petitioner of the motion for summary judgment procedures and the possible consequences if he failed to adequately respond. (Dkt. # 20). Petitioner thereafter timely filed responses in opposition to Respondent's Summary Judgment Motion. (Dkt. # 22 and 23).²

Facts

The following underlying facts in this case were set forth by the South CarolinaCourt of Appeals in Petitioner's direct appeal:

On July 21, 2000, the Newberry County Sheriff's Office conducted an eradication flight over different areas of the county in an attempt to locate marijuana. During this flight, Investigator Wesley Boland spotted eight to ten plots of what appeared to be marijuana growing near Prosperity. He also saw hoses running through the woods to each of the plots. The hoses ran from a pump house behind Perry's residence. Officers with the Newberry County Sheriff's Department and the Newberry Police Department approached the house and found Perry at the pump house. Based on their investigation, the officers arrested Perry. As Officer Lawson was attempting to get Perry into the police car, Perry became belligerent and kicked Lawson in the right shin.

Subsequently, the officers obtained a search warrant and executed it on Perry's house and property. The water hoses from the pump house led to fourteen different plots on the adjacent property. Officer Robert Dennis testified he recovered several bags of marijuana from inside the house. Wayne Nichols owned the property where all the plants were growing. However, he testified he knew nothing about the marijuana and had not given Perry permission to grow marijuana on his property. While conducting the search of the property, the officers pulled up 456 marijuana plants. During the search, the officers inventoried, tagged, and processed the plants for future testing. Shortly thereafter, the officers transported the plants to a secure location.

At trial, Investigator Max Pickelsimer was qualified as an expert to analyze marijuana. He testified that he received 456 stalks of marijuana and analyzed thirty-four of the stalks. He explained the stalks were wet when they were bundled together and, as a result, they became stuck together as they dried. In attempting to separate them, he was able to get thirty-four plants that were strong enough to analyze, and that all thirty-four plants tested positive for marijuana.

State v. Perry, 595 S.E.2d 883, 884-85 (S.C.App. 2004).

Procedural History

In September 2000, Petitioner was indicted for assaulting an officer whileresisting arrest. In January 2002, Petitioner was also indicted for trafficking in marijuana, manufacturing marijuana, and cultivating marijuana on land of another. (App. 472). Petitioner was represented by Public Defender William Pyatt. On January 15, 2002, he was tried on all four charges before a jury with the Honorable James W. Johnson, Jr., presiding. Petitioner was convicted of resisting arrest, trafficking in marijuana, manufacturing marijuana, and cultivating marijuana on land of another. (App. 285). Judge Johnson sentenced Petitioner to twenty-five years for the trafficking in marijuana charge, five years for the manufacturing marijuana charge, and five years for the charge of entering on another's land for the purpose of cultivating marijuana, all to run concurrently, and one year for the resisting arrest charge to run consecutively. (App. 290-91).

Petitioner timely filed a direct appeal. Petitioner, who was represented by Senior Assistant Appellate Defender Wanda H. Haile on appeal, raised the following issues, quoted verbatim:

I. The lower court erred in denying appellant's motion for a directed verdict of acquittal on the charge of trafficking in marijuana;

II. The lower court erred in denying appellant's motion to require the state to elect to prosecute on either the offense of manufacturing marijuana or the offense of manufacturing marijuana on the land of another;

III. The lower court erred in denying appellant's motion for a directed verdict of acquitting on the charge of manufacturing marijuana;

IV. The lower court's denial of appellant's motion to require the state to elect resulted in double jeopardy violation in the case; and

V. The lower court erred in denying appellant's motion to quash the indictment charging him with assault on a police officer while resisting arrest.

(App. 297). On April 26, 2004, the South Carolina Court of Appeals affirmed in apublished opinion, State v. Perry, 595 S.E.2d 883. (App. 337-349). On May 13, 2004, the remittitur was sent down. (App. 350).

On April 19, 2005, Petitioner filed an application for post-conviction relief ("PCR") raising the following grounds for relief: 1) subject matter jurisdiction; 2) double jeopardy; and 3) ineffective assistance of trial and appellate counsel. (App. 353). On December 5, 2005, Petitioner filed a pro se amendment to his PCR application raising the following grounds for relief, quoted verbatim:

A) Was applicant denied a fair trial by the introduction of evidence seized in violation of the Fourth Amendment?

B) Was appellate counsel ineffective in failing to argue a Fourth Amendment violation on Direct Appeal?

C) Was applicant denied a fair trial by the introduction of evidence that had not been established by a complete chain of custody?

D) Was appellate counsel ineffective in failing to present on Direct Appeal the issue of a Chain of Custody break in this case?

E) Was appellate counsel ineffective in failing to present on Direct Appeal the jury's viewing of the evidence outside the courtroom?

F) Was defense counsel ineffective in failing to argue the Miranda violation in this case to the trial court?

G) Was defense counsel ineffective in failing to call or subpoena two vital witnesses to the trial of this case?

H) Was defense counsel ineffective in failing to object to the Court's jury charge?

I) Was defense counsel ineffective in failing to object to the State's bolstering of the case in closing argument?

(App. 366). On April 2, 2008, an evidentiary hearing before the Honorable J. Ernest Kinard, Jr. (App. 398). Petitioner was represented by Gwendlyne Y. Smalls. (App. 398). Following the hearing, the PCR court issued an order dismissing Petitioner's claims.

(App. 456-70). Petitioner did not file a Rule 59(e) motion.

Petitioner timely appealed the denial of PCR. Petitioner was represented by Elizabeth Franklin-Best. Franklin-Best filed a Johnson petition for writ of certiorari arguing trial counsel rendered ineffective assistance of counsel when he did not object to repeated instances of inappropriate remarks made by the state. (Return Attach. # 10-Johnson Petition for Writ of Cert.). Petitioner filed a pro se brief arguing the PCR court erred in dismissing all of his claims for relief. Specifically, Petitioner's raised the following issues: A) Ineffective Assistance of Defense Counsel; B) Failure to Supply Transcript and Address All Issues; C) Law Analysis/ Ineffective Assistance of Counsel D) Ineffective Assistance of Appellate Counsel. (Return Attach. # 12 - Pet'r's Pro se Brief).

On August 19, 2010, the South carolina Supreme Court denied Petitioner's petition for a writ of certiorari and counsel's motion to withdraw was granted. (Return Attach. # 13). On September 9, 2010, the remittitur was sent down. (Return Attach. # 14).

Petitioner filed this federal habeas action on September 2, 2010, raising the following general grounds for relief: 1) Subject Matter Jurisdiction; 2) Double Jeopardy; 3) Ineffective Assistance of Appellate Counsel; and 4) Ineffective Assistance of Trial Counsel. (Dkt. # 1- Habeas Pet.). In his memorandum, Petitioner asserts the following specific grounds for relief, quoted verbatim:

A) Did the Trial Court lack subject matter jurisdiction to try defendant for trafficking in marijuana due to the indictment failing to charge an offense?

B) Did the trial court lack subject matter jurisdiction due to a flaw in the indictment?

C) Did the trial Court lack subject matter jurisdiction due to a fatal variance between the proof at trial and the allegations within the body of the indictment?

D) Did the non-sufficiency of the indictment invoke the Fifth Amendment Double Jeopardy Clause?

E) Was Double Jeopardy violated by Count One and Count Two of the indictment placed against him by the State in this case at trial?

F) Was applicant denied a fair trial by the introduction of evidence seized in violation of the Fourth Amendment?

G) Was appellate counsel ineffective in failing to argue a Fourth Amendment violation on Direct Appeal?

H) Was applicant denied a fair trial by the introduction of evidence that had not been established by a complete chain of custody?

I) Was appellate counsel ineffective in failing to present on Direct Appeal, the issue of a chain of custody break in this case?

J) Was appellate counsel ineffective in failing to present on direct appeal the jury's viewing of evidence outside the Courtroom?

K) Was defense counsel ineffective in failing to argue the Miranda violation in this case to the trial Court?

L) Was defense counsel ineffective in failing to call or subpoena two vital witnesses to the trial of this case?

M) Was defense counsel ineffective in failing to object to the Court's jury charge?

N) Was defense counsel ineffective in failing to object to the State's

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