Rivera v. Lewis

• Decision Date: 09 November 2016
• Docket Number: C/A No. 5:16-00837-MGL-KDW
• Parties: Marlon Rivera, #311864, Petitioner, v. Scott Lewis, Respondent.
• Court: U.S. District Court — District of South Carolina

Marlon Rivera, #311864, Petitioner, v. Scott Lewis, Respondent.

C/A No. 5:16-00837-MGL-KDW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

November 9, 2016

REPORT AND RECOMMENDATION

PetitionerMarlon Rivera("Petitioner") is a state prisoner who filed this pro se 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)(1)(B), andLocal CivilRule 73.02(B)(2)(c)(D.S.C.), for a Report and Recommendation on Respondent's Motion for Summary Judgment and Return and Memorandum of Law in Support of Motion for Summary Judgment.ECF Nos. 20, 19.On July 18, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309(4th Cir.1975), the court advised Petitioner of the Motion for Summary Judgment, the dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion.ECF No. 22.On August 10, 2016, Petitioner responded to the Roseboro order with a "Motion for Judgment on the Pleading," and a "Response and Return Memorandum of Law in Support of Motion for Summary Judgment."ECF Nos. 26, 26-1.On August 22, 2016, Respondent filed a Reply to Response in Opposition to Motion for Summary Judgment.ECF No. 28.On September 7, 2016, Petitioner responded with a "Motion for Facts Development Proceed Pursuant to FRCP Rule 11.7(c)(d); Reply to Response in Oppostion [sic] to Motion for Summary Judgment."ECF No. 31.Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 20, be granted.

I.Background

Petitioner is currently incarcerated in the Tyger River Correctional Institution ("TRCI") of the South Carolina Department of Corrections("SCDC").ECF No. 31.In 2004, Petitioner was indicted at the October term of the Greenville County Grand Jury for one count of murder, in violation of S.C. Code § 16-3-10(2004-GS-23-7693).App. 827-28.¹Petitioner proceeded to a jury trial on October 10-13, 2005, before the Honorable C. Victor Pyle, Jr., Circuit Court Judge.App. 1.Petitioner was represented by Susannah Ross, Assistant Public Defender for Greenville County, and the State was represented by Assistant Solicitor Kris Hodge.Id.Petitioner, who is from Honduras, testified on his own behalf through a Spanish interpreter, Carlos Freeman, who was seated beside Petitioner throughout the entire trial and translated for Petitioner during the trial.App. 453, 2.In addition, the Official Spanish Interpreter for Witnesses, Efrain Pineros, was present.App. 2.Petitioner requested that the jury be charged on self-defense, accident, and involuntary manslaughter, but the judge denied his request.App. 662.On October 13, 2005, the jury found Petitioner guilty of murder.App. 578.Judge Pyle sentenced Petitioner to thirty years imprisonment.App. 585.

II.Procedural History

A.Petitioner's Direct Appeal

Robert M. Dudek, Deputy Chief Attorney for Capital Appeals with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner in the appeal of his conviction and sentence.Petitioner's counsel raised five issues, the last two of which were consolidated into one statement of error.These issues are set forth verbatim below:

1.

The judge erred by admitting appellant's inculpatory statement to the police where it was undisputed that appellant could not read or write Spanish or English, a police investigator acknowledged he physically pulled appellant up by the belt on his shackles to his feet during the interrogation while it was also undisputed the police called appellant a liar.Appellant also offered expert testimony of his fear and inability to understand the interrogation given the cultural differences, the language barrier, and the physical and verbal abuse and intimidation.Appellant's confession should have been suppressed given all of these circumstances.

2.

The judge erred by admitting the hearsay testimony of Investigator Wesley Smith that Officer Rivera told him while appellant was being escorted to the detention center after giving his confession that Rivera told Smith appellant had told him the officers had been "too nice about it," and that in his country "they'd put a bag over the head and beat us" since this was hearsay testimony and prejudicial.

3.

The court abused his discretion by ruling interpreter and defense investigator Carlos Freeman could not testify because he remained in the courtroom with appellant throughout the trial, reasoning this violated the sequestration order.This ruling was fundamentally unfair.Freeman was relied upon as an interpreter by the defense during the trial, and therefore his presence was necessary in the courtroom.

4 & 5.

The court erred by ruling appellant was not entitled to an instruction on involuntary manslaughter or accident where the state elicited testimony that appellant told witness Nelson Castro that he had been wrestling with someone "and that the weapon just went off by itself."There was also evidence appellant was resisting an attack.Defense counsel correctly argued appellant was armed inself-defense under State v. Burriss and State v. Crosby, and that appellant was entitled [to] an involuntary manslaughter instruction given this evidence.The same argument applies under Burriss on an accident instruction.Both issues were jury questions and the judge erred as a matter of law by reasoning inconsistent testimony meant appellant was not entitled to the other instructions.(Issues four and five).

App. 674-75.In an unpublished per curiam opinion filed March 18, 2008, the South Carolina Court of Appeals reversed the trial court and remanded for a new trial, holding that because there was some evidence to support an involuntary manslaughter charge, the trial judge erred by failing to instruct the jury on involuntary manslaughter.State v. Rivera, Op. No. 1008-UP-187(S.C. Ct. App. filed Mar. 18, 2008), App. 660-665.On April 2, 2008, the State filed a Petition for Rehearing, which was denied by the South Carolina Court of Appeals in a per curiam order filed on May 22, 2008.ECFNos. 19-6, 19-7.Thereafter, the State filed a Petition for Writ of Certiorari, arguing that the Court of Appeals erred in finding the trial court should have charged involuntary manslaughter.App. 790-807.Petitioner filed a Return to Petition for Writ of Certiorari, arguing that he was entitled to the charge on the lesser-included offense.App. 808-19.On July 9, 2009, the Supreme Court of South Carolina granted a writ of certiorari to review the Court of Appeals' March 18, 2008 opinion.ECFNo. 19-8.In a published opinion filed September 7, 2010, the South Carolina Supreme Court, voting 3-2, reversed the South Carolina Court of Appeals, and reinstated Petitioner's conviction and sentence, holding that Petitioner was not entitled to a jury charge on involuntary manslaughter.State v. Rivera, 699 S.E.2d 157, 160(S.C.2010), App. 666-72.Petitioner filed a Petition for Rehearing, and on October 7, 2010, the South Carolina Supreme Court, again voting 3-2, denied the Petition for Rehearing in a summary order.ECFNos. 19-10, 19-11.The Remittitur was issued on October 7, 2010, and filed with the Clerk of Court for Greenville County on November 1, 2010.ECFNo. 19-12.

B.Petitioner's Application for Post-Conviction Relief

On February 17, 2011Petitioner timely filed a pro se application for Post-Conviction Relief("PCR")(2011-CP-23-1209), alleging eight grounds for relief.App. 636-55.The PCR grounds are set forth below verbatim:

(A) Ineffective Assistance of Trial Counsel

(B) Ineffective Assistance of Appellate Counsel

(C)Prosecutor Misconduct

(D)The trial court erred when it erroneously charged the jury, that it may infer malice from the use of a deadly weapon.

(E)The State failed to establish a complete chain of custody, in regards to foreensic and other evidence, in violation of rule 6, SCRCrimP.

(F) The Judge erred by admitting Applicant's incupator statement to the police where it was undisputed that he could not read or write Spanish or English.

(G) The Judge erred by admitting hearsay testimony of Investigator Wesley Smith, that was very prejudicial to the Applicant, in front of the jury.

(H)The court abused his discretion by ruling Interpreter and defence Investigator, Carlos Freeman could not testify as a defense witness.

App. 642.Petitioner appended fourteen pages of argument to his form PCR application.App. 642-55.A Return was filed on behalf of the State on June 28, 2011.App. 656-59.On August 26, 2013, the Honorable Robin B. Stilwell held an evidentiary hearing on Petitioner's PCR application.App. 588-635.Petitioner was present and represented by Attorney Jeff Wilkes; Assistant Attorney GeneralKaren C. Ratigan appeared on behalf of the State.App. 588.An interpreter was present and was sworn.App. 590.Petitioner's appellate counsel, Mr. Dudek, testified first.App. 591-97.Petitioner's witness, Juan Carosmacano, testified through theinterpreter.²App. 597-603.Petitioner's trial counsel, Ms. Ross, also testified.App. 603-631.After Ms. Ross was cross-examined, Judge Stilwell questioned Ms. Ross. App. 630-31.Petitioner did not testify.See generally, App. 588-635.

In an Order filed on November 8, 2013, 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 and arguments presented at the PCR hearing.This Court has further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon his or her credibility.This Court has weighed the testimony accordingly.

Set forth below are the relevant findings of fact and conclusions of law as required by S.C. Code Ann. § 17-27-80(2003).

Ineffective Assistance of Trial Counsel

The Applicant alleges

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