Robinson v. Reynolds

• Decision Date: 22 March 2016
• Docket Number: CIVIL ACTION NO. 9:15-3382-JFA-BM
• Parties: JERMEL ANTHONY ROBINSON, #334393, Petitioner, v. CECELIA REYNOLDS, Respondent.
• Court: U.S. District Court — District of South Carolina

JERMEL ANTHONY ROBINSON, #334393, Petitioner, v. CECELIA REYNOLDS, Respondent.

CIVIL ACTION NO. 9:15-3382-JFA-BM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

March 22, 2016

REPORT AND RECOMMENDATION

Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed on August 21, 2015.¹ The Respondent filed a return and motion for summary judgment on December 23, 2015. As the Petitioner is proceeding pro se, a Roseboro order was entered on January 4, 2016, advising the Petitioner that he had thirty-four (34) days to file any material in opposition to the motion for summary judgment. Petitioner was specifically advised that if he failed to respond adequately, the motion for summary judgment may be granted, thereby ending his case. After receiving an extension of time to respond, Petitioner filed a memorandum in opposition on March 3, 2016. This matter is now before the Court for disposition.²

Procedural History

Petitioner was indicted in Sumter County in February 2009 for murder, two counts of attempted armed robbery while armed with a handgun, possession of a firearm during the commission of a crime of violence, possession of a pistol by one less than eighteen years of age, and lynching - 1^st degree. (R.pp. 668-670). Petitioner was represented by David Sullivan, Esquire. After a jury trial with his co-defendant, Teron Jackson, Petitioner was found guilty on April 22, 2009 of lynching, on one of the attempted armed robbery charges, of possession of a firearm during the commission of a crime of violence, and possession of a pistol by one less than eighteen years of age, while being found not guilty of murder and on the other attempted armed robbery charge. (R.pp. 486-487). Petitioner was then sentenced to thirty-seven (37) years imprisonment for lynching, twenty (20) years imprisonment for attempted armed robbery, five (5) years imprisonment for possession of a firearm during the commission of a crime of violence, and five (5) years imprisonment for possession of a pistol by one less than eighteen years of age, all concurrent. (R.p. 507). On May 15, 2009, the trial court denied Petitioner's motion to vacate sentence and for a new trial. (R.p. 555).

Petitioner filed a timely appeal. He was represented on appeal by Joseph L. Savitz, III, of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who raised the following issue:

The trial judge committed reversible error by refusing to direct a verdict acquitting Robinson of lynching, as the State failed to establish that he and Jackson had assembled "for the premeditated purpose and with the premeditated intent of committing an act of violence upon the person of another," as required by S.C. Code Section 16-3-230.

(R.p. 512).

On October 11, 2011, the South Carolina Court of Appeals affirmed Petitioner's conviction and sentence. (R.pp. 530-531); see also State v. Robinson, Unpublished Op. 2011-UP-435 (S.C.Ct.App. Oct. 11, 2011). The Remittitur was issued on October 27, 2011. (R.p. 529).

On April 3, 2012, Petitioner filed an application for post-conviction relief ("APCR") in state circuit court. Robinson v. State of South Carolina, No. 2012-CP-43-648. (R.pp. 532-538). Petitioner originally raised the following issues in his APCR:

Ground One: 5^th Amendment, United States Constitution Violation. Denial of Protection against Double Jeopardy.

Ground Two: 6^th Amendment, United States Constitution Violation. Denial of Effective Assistance of Competent [Counsel].

Ground Three: 14^th Amendment, United States Constitution Violation. Denial of Equal Protection of the Law . . . .

(R.p. 534).

Petitioner subsequently filed an addendum to his PCR petition clarifying or raising additional issues of ineffective assistance of trial and appellate counsel. (R.pp. 539-554).

Petitioner was represented in his APCR by Richard T. Jones, Esquire, and an evidentiary hearing was held on Petitioner's application on February 24, 2014. (R.pp. 571-637). In an order filed April 25, 2014 (dated April 16, 2014), the PCR judge denied relief on the allegations in the APCR. (R.pp. 639-651). On May 5, 2014, Petitioner filed a motion to alter or amend. (R.pp. 652-664). On May 22, 2014 (dated May 16, 2014), the PCR judge filed an order denying the motion. (R.pp. 665-667).

Petitioner filed a timely appeal of the PCR court's order, in which he was representedby Robert M. Pachak, Appellate Defender of the Division of Appellate Defense. Petitioner's counsel filed a Johnson³ petition, seeking to be relieved and raising the following issue:

Ground One: Whether defense counsel was ineffective for failing to object to a jury charge on first degree lynching that did not allow the jury to make a finding of mercy?

Petition for Writ of Certiorari, p. 2 (See Court Docket No. 16-1, p. 3).

The Petitioner then filed a pro se Johnson petition which was received by the South Carolina Supreme Court on March 4, 2015. See Court Docket No. 16-2. Petitioner addressed the following issues in his brief:

The PCR Court reversibly erred by not granting petitioner's application for post-conviction relief where the court applied incorrect law to Petitioner's case or failed to find that counsel's errors resulted in prejudice.

A. Did the PCR Court err in failing to find counsel ineffective for failing to object and require the state to elect between the charges murder and lynching in the first degree resulting in a Double Jeopardy violation?

B. Did the PCR court err in finding that counsel was not ineffective for failing to object to Petitioner's conviction for lynching in the first degree when co-defendant was acquitted of lynching at a joint-trial?

C. Did the PCR Court err in finding that no prejudice occurred due to trial counsel's failure to request a limiting instruction on the jury's use of a co-defendant's confession?

D. Did the PCR Court err in finding that appellate counsel was not ineffective for failing to brief all properly preserved issues pertaining to Petitioner's confession?

E. Did the PCR Court err in finding that counsel was not ineffective for failing to object to the jury charges?

F. Did the PCR Court err in finding that counsel was not ineffective for failing to present an effective directed verdict motion?

G. Did the PCR Court err in finding that counsel was not ineffective for failing to object to the unconstitutionality of the lynching in the first degree statute?

See Court Docket No. 16-2, p. 2.

The South Carolina Supreme Court denied certiorari on May 6, 2015, and granted counsel's motion to be relieved. See Court Docket No. 16-3. The Remittitur was filed on May 22, 2015. See Court Docket No. 16-4.

In his Petition for writ of habeas corpus filed in this United States District Court, Petitioner raises the following issues:

Ground One: Trial counsel ineffective for failing to object and require the State to elect between the charges murder and lynching in the first degree, double jeopardy.

Supporting Facts: A threshold inquiry when reviewing an alleged double jeopardy violation is whether the same act is involved in different charges. Count one of the indictment charged petitioner with murder and count six of the same indictment charged petitioner with lynching in the first degree. Both offenses are the same under South Carolina law and both were not necessary.

Ground Two: Trial counsel ineffective for failing to object to Petitioner's conviction for lynching in the first degree when co-defendant was acquitted at joint trial.

Supporting Facts: Trial counsel failed to contest the conviction for lynching in the first degree when co-defendant was not convicted of lynching in the first degree. This violation arose in a joint trial for a crime there requires the assemblage of two or more people or a united act. Such a violation renders the conviction of impossible at law because the Legislature has included mob as a necessary element of lynching in the first degree.

Ground Three: Trial counsel failed to request a limiting instruction on the jury's use of a co-defendant's confession.

Supporting Facts: Petitioner and his co-defendant were tried jointly. The trial judge ruled that the confessions with the references to the Petitioner and his co-defendant would be redacted and admissible at trial. The redaction was insufficient in regards to the confessions. They served no purpose in disguising Petitioner's existence.

Ground Four: Appellate counsel ineffective for failing to brief all properly preservedissues pertaining to Petitioner's confession.

Supporting Facts: Petitioner and his co-defendant's trial counsel sought suppression of both confessions. The judge denied both motions requesting that the confessions not be admitted at trial. The redaction itself was unconstitutional and did not fall within Bruton's⁴ protective rule to be admissible at trial.

Ground Five: Counsel ineffective for failure to ask for mercy under the lynching statute, 16-3-210.

Supporting Facts: Counsel should have brought to the Court's attention the recommendation of mercy, and requested that mercy be granted as required by statute, upon a finding of guilty.

See Petition, pp. 6, 8-9, 11 & Attachment.

Discussion

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, while the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case; See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972); the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a...