Rice v. Cartledge

• Decision Date: 06 July 2015
• Docket Number: Civil Action No. 6:14-3748-RMG-KFM
• Court: U.S. District Court — District of South Carolina
• Parties: Douglas Lamont Rice, # 319577, Petitioner, v. Warden Leroy Cartledge, Respondent.

Douglas Lamont Rice, # 319577, Petitioner, v. Warden Leroy Cartledge, Respondent.

Civil Action No. 6:14-3748-RMG-KFM

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

July 6, 2015

REPORT OF MAGISTRATE JUDGE

The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2254.

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.

BACKGROUND

The petitioner is currently incarcerated at the McCormick Correctional Institution of the South Carolina Department of Corrections. The petitioner was indicted by the Anderson County Grand Jury in June 2006 for trafficking cocaine (No. 2006-GS-04-0704) (app. 243-44).¹ The petitioner was represented by Charles Griffin. On December 13, 2006, the petitioner and his co-defendant, Antran Ledriqueko Hall, received a joint jury trial, in absentia, before the Honorable G. Edward Welmaker, South CarolinaCircuit Judge. The jury convicted the petitioner, as charged, and Judge Welmaker imposed a sealed sentence (app. 1-155). The petitioner was subsequently apprehended. On January 16, 2007, the petitioner, with Mr. Griffin representing him, appeared before the Honorable J. Cordell Maddox, South Carolina Circuit Judge. Judge Maddox opened the previously-sealed sentence (issued by Judge Welmaker), which sentenced the petitioner to twenty-five years in prison (app. 158-62, 245).

Underlying Case Facts

The following evidence was presented at the petitioner's trial in absentia. In November 2005, Anderson County Sheriff's Department officers began surveillance of an Anderson County residence. They witnessed suspected drug activity, such as cars coming and going throughout the evenings. They also had information from a confidential informant that Antran Ledriqueko Hall was selling drugs from the residence and that Hall drove an early 1990s Buick that officers had seen at the residence, which was a trailer.

On November 21, 2005, officers executed a search warrant for the trailer. Neither Hall nor the petitioner was at home, and the only person present was a black female (app. 43-49, 63-64, 77-78). During the search, officers seized a Smith & Wesson .357 caliber revolver; a "yellow bag containing miscellaneous shotgun shells and bullets"; a "black magazine to a handgun[;] a white bag containing miscellaneous rifle cartridges and rounds[;] [t]hree boxes of ammo[;]... [and] a box of sandwich bags." Officers also found a power bill addressed to Hall and photographs of him, a scanner, five sets of digital scales, and a 9 mm. pistol. They found a motorcycle outside of the trailer. Officers subsequently learned that this motorcycle had been stolen out of Buncombe County, North Carolina (app. 49-55). They did not find any drugs in the residence (app. 58).

As the officers were finishing their search outside, Hall's Buick drove down the road and approached the trailer. The officers outside were dressed in pullovers with the word "Sheriff" on them. As the car came down the hill, it "hesitated for a moment. Thevehicle started to slow and then it accelerated rapidly away from the house." Several officers, including Sgt. Brad Baxter, left the residence and tried to find the Buick (app. 55-58, 64-65, 78). According to Sgt. Baxter, he and several officers ran to his truck and drove to Highway 28 when they saw Hall driving on a road nearby. Sgt. Baxter engaged his blue lights and siren and caught up to Hall, who started driving erratically, passing cars on the double yellow line, and speeding. During the chase, Sgt. Baxter and the other officers saw a bag fly out of the passenger side of the car. Another officer was called to pick up the bag, and the chase continued (app. 80-81, 85-86). Eventually, Hall ran the car into some bushes, and the motor stalled. Hall and the petitioner got out of the car and fled from officers. The petitioner was apprehended after a short foot chase and arrested (app. 65-68, 78-80, 90-94, 95-99).

A field test on the bag was positive for 263.5 grams of cocaine. Subsequently, the substance in the bag was analyzed by a chemist, who determined that it was actually 253.5 grams of cocaine. Sgt. Baxter testified the street value of that amount of cocaine was between $10,000 and $15,000 (app. 70, 82-83, 101-09).

Direct Appeal

The petitioner timely served and filed a Notice of Appeal. He was represented by Assistant Appellate Defender Kathrine H. Hudgins. On June 23, 2008, Ms. Hudgins filed a Final Anders Brief of Appellant on the petitioner's behalf and petitioned to be relieved as counsel (app. 163-74). The Final Anders Brief presented the following issues:

1. Did the trial judge err by proceeding with a trial in absentia when the State failed to produce evidence that the defendant had been given notice of his trial date?

2. Did the trial judge err by failing to declare a mistrial when the prosecutor in closing argument of a trial in absentia improperly commented on the defendant's right to remain silent?

(App. 166).

On October 8, 2009, the South Carolina Court of Appeals filed an opinion dismissing the appeal and granting counsel's petition to be relieved. State v. Douglas Lamont Rice, Opinion No. 2009-UP-454 (S.C. Ct.App. Oct. 8, 2009) (app. 175-76). The Remittitur was sent to the Anderson County Clerk of Court on October 26, 2009 (doc. 22-5).

PCR

The petitioner filed a pro se post-conviction relief ("PCR") application (2010-CP-04-2640) on July 27, 2010, wherein he alleged the following grounds:

1. Ineffective assistance of counsel:

a. For failing to object to the possession jury instruction to be preserved for appellate review in which the state failed to prove proof beyond reasonable doubt of knowingly and unlawfully have in his possession 200 grams or more but less than 400 grams of cocaine in which the Applicant was indicted on.

b. For failing to object to a trial in absentia when the court's fail to produce evidence that the Applicant had been given notice of his trial dates or not of term of court in which he must appear. Applicant never waived his rights not to attend his trial.

c. For failing to object to prosecutor misconduct in closing arguments prosecutor improperly commented on Applicant's post-arrest silence.

d. For failing to object to the hand of one hand of all jury charge, which was outside the scope of the indictment.

(App. 177-83). The State filed its Return on October 27, 2010 (app. 184-88).

On October 5, 2011, an evidentiary hearing was held by the Honorable J. Cordell Maddox.² The petitioner was present with counsel, Hugh W. Welborn. Assistant Attorney General Kaelon E. May represented the State. The petitioner testified on his ownbehalf, while the State presented the testimony of the petitioner's trial counsel, Mr. Griffin (app. 189-225).

On January 5, 2012, Judge Maddox denied relief and dismissed the application with prejudice in an order of dismissal. The order addressed the petitioner's claims that trial counsel was ineffective for (1) failing to object to the "possession" jury instruction; (2) failing to object to a trial in absentia; (3) failing to object to the Assistant Solicitor's comments on the petitioner's post-arrest silence in closing argument; and (4) failing to object to the "hand of one is the hand of all" jury instruction (app. 229-40).³

PCR Appeal

The petitioner timely served and filed a notice of appeal. Assistant Appellate Defender Dayne C. Phillips represented him in collateral appellate proceedings. On June 20, 2012, the petitioner filed a petition for writ of certiorari, in which he presented the following issue:

Did the PCR court err in finding that trial counsel provided effective assistance of counsel where trial counsel failed to object to the solicitor's closing argument when the solicitor denied Petitioner a fair trial by directly commenting on Petitioner's constitutional right to remain silent?

(Doc. 22-8 at 2). The State filed a return to petition for writ of certiorari on November 8, 2012. On July 23, 2014, the South Carolina Court of Appeals filed an order denying certiorari. The Remittitur was sent to the Anderson County Clerk of Court on August 8, 2014 (doc. 22-11).

FEDERAL PETITION

On September 24, 2014, the petitioner filed his § 2254 petition (doc. 1). On January 15, 2015, the respondent filed a motion for summary judgment (doc. 19). By order filed on January 16, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4^th Cir. 1975), the petitioner was advised of the summary judgment dismissal procedure and the possible consequences if he failed to adequately respond to the motion (doc. 20). On February 23, 2015, the petitioner filed a response in opposition to the motion for summary judgment(doc. 24).

In his federal petition, the petitioner makes the following claims:

GROUND ONE: Ineffective assistance of counsel. Sixth Amendment constitutional violations.

SUPPORTING FACTS: "Failing object to the possession jury instruction to be preserved for appellate review in which the state failed to prove proof beyond a reasonable doubt of knowingly and unlawfully having in his possession 200 grams or more but less than 400 grams of cocaine in which the petitioner was indicted on." [sic]

GROUND TWO: Ineffective assistance of counsel.

SUPPORTING FACTS: "Failing to object to prosecutor misconduct in closing argument, prosecutor improperly commented on petitioner's exercising his constitutional right to remain silent."

GROUND THREE: Ineffective assistance of counsel.

SUPPORTING FACTS: "Failing to object to the Hand of one Hands of all [sic] jury charge which was outside the scope of the indictment."

GROUND FOUR: Ineffective assistance of counsel.

SUPPORTING FACTS: "Failing object to a trial in absentia when the [State] failed to produce evidence

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