REPORT AND RECOMMENDATION Petitioner Tippy Marie Retana ("Petitioner") is a state prisoner, and filed this pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1 at 15.1 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 ("R&R") on Respondent's Return and Motion for Summary Judgment. ECF Nos. 14, 15. On April 27, 2015, pursuant to Roseboro v. Garrison,2 the court advised Petitioner of the Summary Judgment procedures and instructed her to file a Response to Respondent's Summary Judgment Motion by June 1, 2015. ECF No. 16. On June 4, 25015, the court ordered Petitioner to file a Response to the Motion for Summary Judgment if she wished to pursue her case. ECF No. 19. On July 6, 2015, Petitioner's counsel filed a Response in Opposition to Respondent's Motion for Summary Judgment, ECF No. 23, and on July 16, 2015, Respondent filed a Reply, ECF No. 27. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 14, be granted.
Petitioner is currently incarcerated in the Graham Correctional Institution ("GCI") of South Carolina Department of Corrections ("SCDC"). ECF No. 23. In 2008, Petitioner was indicted at the March term of the Lee County Grand Jury for murder (2008-GS-31-0054) and possession of a firearm during the commission of a violent crime (2008-GS-31-0054). App. 606-09.3 Attorney Richard Strobel, Esq., represented Petitioner in a jury trial that convened from January 24-26, 2009; Solicitor Paul Fata represented the State. App. 1. Petitioner was tried before the Honorable John Milling. Id. After the trial, the jury found Petitioner guilty of both charges, and Judge Milling sentenced Petitioner to life imprisonment without parole for the murder conviction and a concurrent five-years' imprisonment for the possession of a firearm conviction. App. 558; 608-09. Petitioner did not file a direct appeal of her conviction and sentence.
Petitioner filed an application for Post-Conviction Relief ("PCR") on January 16, 2009 (2009-CP-31-0023). App. 559-565. Petitioner asserted the following allegations, recited verbatim, regarding her claims:
a) Ineffective counsel.
b) They only had surcumstantial evidence.
App. 560. Petitioner alleged the following facts supported her PCR grounds:
a) My lawyer did not present all my evidence to prove I wasn't there.
b) My lawyer did not use but one of my witnesses. c) He didn't file an appeal on a life sentence. He left the courtroom before the judge even told me about my appeal.
App. 560. Assistant Attorney General Mary S. Williams filed a Return on behalf of the State. App. 561-70. A PCR hearing convened on April 28, 2011, before the Honorable W. Jeffrey Young. App. 571-95. Petitioner was present and represented by Marc Schnee, Esq., and Mary S. Williams appeared on behalf of the State. Id. Petitioner, trial counsel Strobel, and Petitioner's mother, Cynthia Tompkins, testified during the hearing. See id. In an Order dated December 14, 2011, the PCR court denied Petitioner's PCR Application in full, making the following findings of fact and conclusions of law:
This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility and weigh their testimony accordingly. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. Code Ann. §17-27-80.
Ineffective Assistance of Trial Counsel
The Applicant alleges she received ineffective assistance of counsel. In a PCR action, "[t]he burden of proof is on the applicant to prove his allegations by a preponderance of the evidence." Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002) (citing Rule 71.1(e), SCRCP). Where ineffective assistance of counsel is alleged as a ground for relief, the Applicant must prove that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692 (1984); Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985).
The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler, Id. The Applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
First, the Applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its "reasonableness under professional norms." Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citingStrickland, supra). Second, counsel's deficient performance must have prejudiced the Applicant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. "A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland).
Ineffective Assistance of Counsel/Failure to Investigate
Applicant asserts that Counsel was ineffective in his investigation. Applicant testified she was arrested December 27, 2007, and Counsel undertook representation within two (2) weeks of her arrest. Applicant testified that she and Counsel began discussing the facts of the case in May. Applicant felt that Counsel should have sought gunshot residue ("GSR") testing, testing of clothing, phone records, and surveillance from the Exxon gas station she had claimed to visit. In addition to her son, Applicant had also wanted her mother and sister to testify. Applicant also stated that Counsel had not discussed any experts with her. Applicant added that Counsel did not discuss with her testifying as part of a motion to suppress her statements.
Counsel affirmed that he was retained shortly after Applicant's arrest. Counsel testified that he met with Applicant on numerous occasions at the jail. Applicant had already given a statement confessing to the killing when Counsel began his representation. Counsel obtained photos of bruises as well as police reports. He began developing a battered wife defense. As the defense was developing, Counsel testified that in April Applicant changed her story, saying that she had not killed the victim and that she had been lying for the past three months. At that point, Counsel's battered wife theory was no longer viable. Counsel noted that he argued the lack of GSR testing as indicative that the police believed she was not involved. Counsel further argued that the police had failed to collect clothing. Counsel opined that even if he had sought clothing for testing, clothing was easily washed. Finally, counsel stated he did not believe that Applicant's testimony at a Jackson v. Denno hearing would change the outcome of the hearing.
Based on the testimony presented at the PCR hearing, I find Applicant has failed to satisfy her burden in proving that counsel's performance fell below reasonable professional norms in his investigation, preparation and representation in this case. Counsel took reasonable steps to prepare this case for trial including preparing a seemingly strong "battered wife" defense which was later taken off the table by Applicant's own actions. Counsel is a well seasoned criminal defense attorney that used his decades of experience to sufficiently prepare this case for trial after adequately and fully advising Applicant of the circumstances of the charges, the evidence against her, her rights and the consequences of proceeding to a jury trial. I further find that Applicant has failed to produce any credible evidence that would have changed the outcome of the case at trial. SeeMoorehead v. State, 329 S.C. 329, 496 S.E.2d 415 (1998) (no prejudice whereclaim of failure to investigate is supported only be mere speculation as to the result).
Failure to File an Appeal
Applicant also alleges counsel was ineffective in failing to file an appeal on her behalf. According to the trial transcript, the trial court informed Applicant of her right to an appeal after sentencing. (Tr.p.475). Counsel states that he left the courtroom after sentencing, and the trial court provided this information in his absence. Applicant testified both she and her mother attempted to contact counsel to request an appeal be filed. Cynthia Tompkins ("Tompkins"), Applicant's mother, also testified at the PCR hearing that she contacted counsel's office to request an appeal on Applicant's behalf. Tompkins went on to state she tried to contact counsel twice a week to try to speak with him about a possible appeal, but never got the opportunity to speak with him about it. Counsel testified that he knew Tompkins for many years before his representation of Applicant, but that at no time did he have a discussion with Applicant or Tompkins regarding an appeal.
Following a trial, counsel is required to make certain the defendant is made fully aware of the right to appeal. Turner v. State, 380 S.C. 223, 224, 670 S.E.2d 373, 374 (2008); see alsoRoe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029 (2000). "Absent an intelligent waiver by the defendant, counsel must either initiate an appeal or comply with the
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