Primus v. Padula, C.A. No. 4:07-cv-02652-PMD-TER.

Decision Date27 May 2008
Docket NumberC.A. No. 4:07-cv-02652-PMD-TER.
CourtU.S. District Court — District of South Carolina
PartiesJames Anthony PRIMUS, Petitioner, v. Warden A.J. PADULA, Respondent.

James Anthony Primus, Bishopville, SC, pro se.

Donald John Zelenka, William Edgar Salter, III, SC Attorney General's Office, Columbia, SC, for Respondent.

ORDER

PATRICK MICHAEL DUFFY, District Judge.

This matter is before the court upon the Magistrate Judge's recommendation that Respondent's Motion for Summary Judgment be granted. The Record contains a Report and Recommendation ("R & R") of a United States Magistrate Judge which was made in accordance with 28 U.S.C. § 636(b)(1)(B). A dissatisfied party may object, in writing, to an R & R within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). Petitioner filed timely objections to the R & R.

BACKGROUND

Although the Magistrate Judge's R & R contained a thorough recitation of the facts, the court will include them herein. Petitioner, James Anthony Primus ("Petitioner" or "Primus") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on or about July 20, 2007. Respondent filed a Motion for Summary Judgment on October 25, 2007, and Primus filed a Response in Opposition on November 16, 2007. Magistrate Judge Thomas E. Rogers, III entered a Report and Recommendation on February 27, 2008, in which he recommended that Respondent's Motion for Summary Judgment be granted.

Primus is currently incarcerated at the Lee Correctional Institution of the South Carolina Department of Corrections. In September of 1997, Petitioner was indicted for criminal sexual conduct ("CSC") in the first degree, kidnapping, possession of crack cocaine, and burglary in the second degree. (App. 500-07.) Petitioner was represented on these charges by attorney William L. Runyon, Jr., and Petitioner was tried by a jury on the charges of CSC, kidnapping, and burglary before the Honorable Luke N. Brown, Jr., between August 31 and September 1 of 1998. (Id. at 488-89.) Petitioner was convicted of Kidnapping and Assault and Battery of a High and Aggravated Nature ("ABHAN"), and Judge Brown sentenced him to ten years for ABHAN and thirty years for kidnapping, running consecutively. (Id. at 489.)

Petitioner filed a timely notice of appeal, and Chief Attorney Daniel T. Stacey and Assistant Appellate Defender Katherine Carruth Link, both of the South Carolina Office of Appellate Defense, represented Petitioner on appeal to the South Carolina Court of Appeals. Petitioner filed his final brief on October 21,1999, which raised the following issue: "Whether the court erred when it permitted the solicitor to argue that appellant had not produced witnesses to support his alibi, where the defense adduced no evidence and the comment was prejudicial." (Id. at 332.)

On July 10, 2000, the Court of Appeals of South Carolina reversed Petitioner's convictions in State v. Primus, 341 S.C. 592, 535 S.E.2d 152 (Ct.App.2000). (App. 361-72.) The State filed a petition for rehearing on July 24, 2000, but on August 17, 2000, the South Carolina Court of Appeals denied the rehearing petition. (Id. at 373-84.)

On September 15, 2000, the State filed a petition for a writ of certiorari with the South Carolina Supreme Court raising the following issues:

1. Did the Court of Appeals err in finding it was improper for the Assistant Solicitor to comment on Respondent's failure to call his uncle as a witness?

2. Did the Court of Appeals err in denying the State's motion to supplement the record on appeal?

3. Did the Court of Appeals err in finding the trial court committed reversible error in failing to sustain Respondent's objection to the Solicitor's comments and failing to immediately give a curative instruction?

4. Did the Court of Appeals err in concluding the trial court's jury charges on Respondent's rights not to testify or put up any evidence did not cure the error of allowing the Solicitor's improper comments?

5. Did the Court of Appeals err in concluding the probability of prejudice from the Solicitor's comment mandated reversal of the conviction under a harmless error analysis?

(Pet. for Writ of Cert, at 3.) By an order dated February 9, 2001, the South Carolina Supreme Court granted certiorari on these issues and further ordered the parties to address the following issue: "Did the trial court have subject matter jurisdiction in this case as respondent was indicted for first-degree criminal sexual conduct, but he was convicted of assault and battery of a high and aggravated nature?" (Order granting Writ of Cert, at 1.) Then, on March 8, 2001, the State filed a brief discussing the following issues:

1. Did the trial court have subject matter jurisdiction in this case as Respondent was indicted for first-degree criminal sexual conduct, but was convicted of assault and battery of a high and aggravated nature?

2. Did the Court of Appeals err in finding it was improper for the Assistant Solicitor to comment on Respondent's failure to call his uncle as a witness when Respondent made a voluntary statement relating his alibi, and specifically posed questions on cross-examination that elicited and supported his alibi defense?

3. Did the Court of Appeals err in denying the State's motion to supplement the Record on Appeal when the requested portions were relevant to the curative instruction analysis and harmless error analysis employed by the Court?

4. Did the Court of Appeals err in finding the trial court committed reversible error in failing to sustain Respondent's objection to the Assistant Solicitor's comment on alibi and immediately give a curative instruction?

5. Did the Court of Appeals err in concluding the trial court's jury charges did not cure any error in allowing the Assistant Solicitor's comment on alibi?

6. Did the Court of Appeals err in concluding the Assistant Solicitor's comment on alibi was not harmless error?

On June 8, 2001, Petitioner also filed a brief.

The Supreme Court of South Carolina issued an opinion on May 20, 2002, in which the court affirmed in part and reversed in part the Court of Appeals' decision. See State v. Primus, 349 S.C. 576, 564 S.E.2d 103 (2002). The Supreme Court of South Carolina concluded the trial court had subject matter jurisdiction over the ABHAN conviction because the court concluded ABHAN is a lesser included offense of first degree CSC. See id. at 581, 564 S.E.2d at 106. The court further concluded the Court of Appeals correctly held that the assistant solicitor's comment concerning Primus' failure to produce his uncle as a witness was improper. Id. at 584, 564 S.E.2d at 107-08. However, the Supreme Court of South Carolina determined that any error was harmless beyond a reasonable doubt. Id. at 585-88, 564 S.E.2d at 108-09. The South Carolina Supreme Court sent the remittitur down on June 5, 2002.

On July 10, 2002, Petitioner filed a pro se application for post-conviction relief ("PCR"), raising twelve allegations of ineffective assistance of counsel (verbatim):

1. Trial counsel was ineffective for failing to object to the prosecution officer presenting D.N.A. evidence just hours before trial. TR. P. 235 Line 4-21.

2. Counsel failed to object to the prosecution officer presenting the D.N.A. evidence just one hour before trial. Counsel denied the applicant the opportunity to preserve this issue for the Appellate Court review.

3. Trial counsel was ineffective when he failed to file a Brandy Motion to obtain any and all exculpatory evidence: Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963).

4. Trial counsel was ineffective where he failed to conduct a legal, factual or meritorious investigation of the applicant's case. Bertha Robinson v. State, 308 S.C. 74, 417 S.E.2d 88 (1992) Frederick Jetter v. State, S.C. OP. No. 1992 Cothill Tate v. State, S.C. OP. No. April 1992.

5. Trial counsel was ineffective when he failed to request the trial court to excused for cause the following voir dir Jurors Tr. p. 13-14 Jim Rice Juror (111) he knew Sheriff Ray Rush from a church men's group. His full name is James S. Rice. Tr. p. 12-22 Juror 152 Linda Huffman. Tr. p. 10-22 Juror 101 Carol Moore. Samuel Joyner Trip. 20-23 Juror 75. The question was never ask by court whoever served on a Jury before: Mr. Joyner served before. Linda Huffman contributor to Mothers Against Drunk Driving. Carol Moore previously used the Assistant Solicitor Mr. Robbins.

6. Applicant contend that trial counsel's failure to object to Jurors James Rice, Linda Huffman, Carol Moore, and Samuel Joyner from remaining on the voir dire pool failed to preserve the issue for appellate review. Pike v. South Carolina Department of Transportation, 506 S.E.2d 516, 332 S.C. 605 (Ct.App. 1998). Reh. Den.

7. Counsel failed to call Theodore James as a witness relevant to case.

8. Applicant was denied a fair and impartial trial by trial counsel's failure to object and to challenge voir dire jurors James S. Rice, Linda Huffman, Carol Moore and Samuel Joyner. State v. Powers, 501 S.E.2d 116, 331 S.C. 37 (1998). Reh. Den (1998).

9. Counsel failed to call Joe Hodges as a witness to alibi for defense.

10. Trial counsel failed according to rule 5.(c) to file a notice of alibi by defendant.

11. Trial counsel failed according to rule 7(6) to file a notice for continue in order to view the belated evidence which was the D.N.A. that was brought in by the prosecutor's office.

12. Applicant contend that he never had a chance to view the D.N.A. that was presented into evidence by the prosecutor until August 31, 1998, and he didn't get a chance to view it then. TR. P. 235. Line 1-19.

(App. 390-91.) On June 7, 2004, Petitioner filed an amendment to his PCR application in which he challenged the trial court's subject matter jurisdiction because (1) the prosecutor was the only witness before the Grand Jury, in contravention of state court precedent;...

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    • United States District Courts. 4th Circuit. United States District Court of South Carolina
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    ...any party to move to alter or amend a judgment if they believe necessary matters not addressed in original order]; Primus v. Padula, 555 F.Supp.2d 596, 611 (D.S.C. 2008); Smith v. Warden of Broad River Correctional Inst., No. 07-327, 2008 WL 906697 at * 1 n. 1 (D.S.C. Mar. 31, 2008); McCull......
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    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
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    ...jurisdiction over a purely state-law criminal charge is not a cognizable matter in federal habeas corpus. Primus v. Padula, 555 F. Supp.2d 596, 625-26 (D. S.C. 2008). Thus, petitioner has no right to relief on the basis of his claim that the trial court convicted him of a lesser offense.2. ......
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