Presley v. Eagleton
| Decision Date | 27 July 2015 |
| Docket Number | C/A No.: 1:14-3785-BHH-SVH |
| Court | U.S. District Court — District of South Carolina |
| Parties | Kimjaro Presley, #299377, Petitioner, v. Willie Eagleton, Warden of Evans Correctional Institution, Respondent. |
Petitioner Kimjaro Presley is an inmate at the Evans Correctional Institution of the South Carolina Department of Corrections who, through counsel, filed this 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 17, 18]. After obtaining extensions, Petitioner filed a response on May 14, 2015. [ECF No. 23].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
At his guilty plea, Petitioner acknowledged his involvement in a nine-month crime spree across state and county lines during which he and several codefendants robbed 15 businesses. Petitioner also acknowledged having robbed the occupants of a home at gunpoint. At PCR, Lexington County assistant solicitor August "Tav" Swarat, Esq., summarized the break-in as follows:
The defendant, Mr. Hayward, and another associate, I believe Mr. McKenzie, were involved in the break in. Mr. McKenzie stayed outside, I believe. He was in the getaway car. What they were trying to do was get a vehicle to use in a bank robbery. They went in. The front door was open. I believe Mr. Presley went to the back yard where some of the children were playing during the birthday party. He herded everybody up at gunpoint, got them back in the house, then got [Victim] to give him access to her vehicle. Once they had the vehicle, they could have left, but they came back inside, tied her up and beat her in front of the children. It was very severe, put the gun to the head of the children, threatened to kill the children during the assault. They stole some weapons out of the house. They stole all their Christmas presents, then they fled and shortly thereafter, maybe within an hour, they robbed a bank about a half a mile away.
After being arrested by the Lexington County Sheriff's Department on June 25, 2003, Petitioner waived his right to counsel and provided a statement ("First Statement") to law enforcement confessing to having robbed some seven businesses and restaurants and providing details of his codefendants' other robberies. [ECF No. 17-10 at 67-75]. Petitioner's mother and stepfather retained Tony Dessausure, Esq., to represent him. [ECF No. 17-9 at 89:12-22]. During their initial meeting, Mr. Dessausure advised Petitioner not to give any other statements. Id. at 37:9-38:16. Mr. Dessausure advised the Richland and Lexington County solicitors offices he represented Petitioner and, by letter dated July 31, 2003, noted he did not want anyone talking with Petitioner, unless their conversations were directed through counsel. Id. at 36:2-17. Mr. Dessausure testified at some point he sent that letter to the respective county sheriff departments, as well. Id. at 36:18-22.
In early September 2003, unbeknownst to counsel, Petitioner requested his girlfriend Candice Cantey contact Investigator W. McDaniel ("Investigator McDaniel") of the Richland County Sheriff's Department to advise that Petitioner wanted to discuss several unsolved armed robberies and carjackings. [ECF No. 17-7 at 68:6-11; 97:14-22; 17-9 at 40:5-13; 41:14-20; 17-10 at 33]. On September 12, 2003, Petitioner met with Investigator McDaniel at the Richland County Sheriff's Department, where Petitioner provided a 16-page statement ("Second Statement") [ECF No. 17-10 at 32-48] detailing his involvement in some 11 additional robberies/carjackings. [ECF No. 17-7 at 68:14-20; 123:6-9; 17-9 at 41:20-25]. Mr. Dessausure was not notified of the interview and was not present during the meeting; rather, he became aware of the meeting two or three days later when Petitioner informed him he had "told Investigator McDaniel everything." [ECF No. 17-7 at 68:10-20]. Counsel noted at the PCR hearing that, at the time, he was unaware of several of the robberies Petitioner confessed to in the Second Statement and, therefore, did not believe he represented Petitioner on those charges when the Second Statement was given. [ECF No. 17-9 at 78:13-24].
On September 19, 2003, Petitioner and counsel met with Detective James Lorick ("Detective Lorick") at the Lexington County Sheriff's Department, at which Petitioner provided a 10-page statement ("Third Statement") [ECF No. 17-10 at 49-59] disclosing several more robberies and additional details of some of the previously-disclosed robberies. In sum, Petitioner confessed to over 47 armed robberies and was facing "close to life plus a thousand years" in jail on all of the charges brought against him. [ECF No. 17-7 at 126:21-23; 110:15-18].
Absent any specific prosecutorial promises or plea offers, Petitioner offered to be available as a state's witness at the trial of his codefendant, John Hayward ("Hayward"). Id. at 63:25-64:5; 17-9 at 61:-62:9. Petitioner's testimony was unnecessary upon Hayward's guilty plea and sentence in November 2003 of 325 years in prison. Id. at 62:8-9; 17-9 at 85: 8-9; 17-7 at 113: 9; 98:3-8.
Petitioner was indicted by the Richland County grand jury in July 2003 for armed robbery [ECF No. 17-8 at 97] (2003-GS-40-5389). Petitioner was represented by Mr. Dessausure, and on November 21, 2003, waived presentment to the Richland County grand jury on 10 additional counts of armed robbery and one count of kidnapping. [ECF No. 17-7 at 13:4-14:5]. Petitioner pled guilty before the Honorable G. Thomas Cooper, Jr., Circuit Court Judge, to all the charges against him, with sentencing deferred pending resolution of charges against Heyward. Id. at 3-18.
On January 21, 2004, Petitioner appeared before Judge Cooper and waived presentment to the grand jury and jurisdiction on the additional counts from Lexington County, including nine counts of armed robbery, 10 counts of kidnapping, two counts of criminal conspiracy, one count of assault and battery with intent to kill ("ABWIK"), and one count of burglary first degree. Id. at 29:12-30:13. Additionally, the state, with counsel's consent, amended to attempted armed robbery one of the Richland County armed robbery charges to which Petitioner had previously pled. [ECF No. 17-7 at 35:24-36:17]. Petitioner pled guilty to all the Lexington County charges against him and received the following concurrent sentences on the Richland and Lexington charges: 50 years for burglary first degree, 30 years on each of the 20 armed robbery charges, 30 years on each of the 11 kidnapping charges, 20 years for ABWIK, 20 years for attempted armed robbery, and five years for each of the two criminal conspiracy charges. Id. at 83-88.
Petitioner filed a timely motion to reconsider, id. at 90, argued by Jack B. Swerling, Esq., before Judge Cooper at a hearing on November 21, 2005. Id. at 91 through 17-8 at 5. Judge Cooper denied the motion to reconsider. [ECF No. 17-8 at 4].
On November 13, 2006, Petitioner, through Tara Shurling, Esq. ("PCR counsel"), filed an application for post-conviction relief ("PCR") in Richland County (2006-CP-40-06751). [ECF No. 17-8 at 24-32]. The state filed a Return and Motion to Dismiss on or about May 11, 2007, arguing the application was untimely filed pursuant to the statute of limitations in S.C. Code Ann. § 17-27-45(a). Id. at 34-39. The Honorable Alison Renee Lee, Circuit Court Judge, issued a Conditional Order of Dismissal on May 24, 2007, provisionally denying and dismissing the application, and allowing Petitioner 20 days within which to submit his objections to the summary dismissal. Id. at 45-48. PCR counsel filed a reply to the conditional order, noting Petitioner's timely motion for reconsideration stayed his time to file the PCR application such that the application was timely filed. Id. at 49-50.
One week after filing the Richland County PCR action, Petitioner, through PCR counsel, filed another PCR application in Lexington County on November 20, 2006 (2006-CP-32-4092) Id. at 6-12. The Honorable James W. Johnson, Jr., Circuit Court Judge, issued a Conditional Order of Dismissal, [id. at 15-17], and PCR counsel filed a reply setting forth the same argument previously filed in the Richland County action. Id. at 19-20. By consent order filed December 11, 2008, the Honorable R. Knox McMahon, Circuit Court Judge, ordered Petitioner's Lexington County PCR application (2006-CP-32-4092) be withdrawn to allow Petitioner to challenge the charges from both counties through the Richland County PCR application (2006-CP-40-6751). Id. at 21-22.
Petitioner filed an amended PCR application on March 10, 2010. Id. at 59-60. Petitioner and PCR counsel appeared before Judge Lee for an evidentiary hearing on March 15, 2010. [ECF No. 17-9 at 18 through 17-10 at 31]. Testifying at the hearing were Petitioner, and attorneys Dessausure, Swerling, Swarat, and Samuel Mokeba, counsel for codefendant Heyward. Id.
By order filed February 11, 2011, Judge Lee denied and dismissed the application with prejudice. [ECF No. 17-10 at 77-86]. On February 24, 2011, Petitioner filed a motion to alter or amend pursuant to SCRCP 59(e), requesting the PCR court reconsider its decision to deny relief or, in the alternative, issue an amended order addressing several additional issues allegedly raised at the evidentiary hearing. Id. at 88-93. On July 20, 2011, Judge Lee issued a "Supplemental Order" granting Petitioner's Rule 59(e) motion solely to amend the findings of fact and conclusions of law previously set forth in the February 11, 2011, order of dismissal. Id. at 99-103.
Petitioner appealed from the denial of PCR on June 11, 2012. Id. at...
To continue reading
Request your trial