Robinson v. Warden, Lieber Corr. Inst.

• Decision Date: 10 July 2012
• Docket Number: C/A No.: 1:11-1804-RMG-SVH
• Court: U.S. District Court — District of South Carolina
• Parties: Scottie Robinson, #243206, Petitioner, v. Warden, Lieber Correctional Institution, Respondent.

Scottie Robinson, #243206, Petitioner,

v.Warden, Lieber Correctional Institution, Respondent.

C/A No.: 1:11-1804-RMG-SVH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

Dated: July 10, 2012

REPORT AND RECOMMENDATION

Petitioner Scottie Robinson is an inmate at the Lieber Correctional Institution of the South Carolina Department of Corrections 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) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [Entry #20, #21]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by December 19, 2011. [Entry #22]. Petitioner requested, and the court granted, an extension until January 3, 2012 to file a response to the motion for summary judgment. [Entry #26 and #28]. Petitioner timely filed his response on December 22, 2011. [Entry #27].

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted.

I. Procedural Background

Petitioner was indicted by the Horry County grand jury in May 2002 for murder. [Entry #20-22 at 9]. He was represented by Ed Chrisco, Esq. at a jury trial on September 7-9, 2004 before the Honorable Paula H. Thomas. Judge Thomas instructed the jury on both voluntary and involuntary manslaughter, but she refused to charge self-defense. The jury found Petitioner guilty of murder and Judge Thomas sentenced Petitioner to 30 years. [Entry #20-4 at 36, 39].

The facts giving rise to the murder charge were summarized by the South Carolina Court of Appeals ("Court of Appeals") as follows:

On September 30, 2001, Aaron Robinson was playing basketball with several other men, including Anthony Bradley, at the Smith Jones Recreation Center (the Center) in Conway, South Carolina. During the basketball game, Robinson and Bradley argued and engaged in a scuffle wherein Bradley grabbed Robinson by the throat and shoved him. After the two men were separated, Robinson went to his car and drove home.

At some point after the incident, Scottie Robinson (Appellant), Aaron Robinson's older brother, became aware that an incident had occurred between his brother and another man at the Center.[2] Appellant picked up his cousin Theartis Robinson and drove to the Center. Upon arriving at the Center, Appellant retrieved a handgun from the glove compartment of his vehicle, and he and his cousin approached the men on the basketball court.[3] Bradley attempted to grab the gun from Appellant, and during the struggle, Appellant fatally shot Bradley in the chest. Immediately following the shooting, Appellant walked back to his car and drove home.

/FN2 Both Appellant and Aaron Robinson testified that they did not speak with each other following the incident at the recreation center. Therefore, neither the manner in which Appellant came to learn of the events, nor the exact details of which he was made aware are entirely clear. It appears Appellant overheard some neighbors discussing the incident.

/FN3 Although through conflicting accounts, all parties agree that through a verbal exchange, Appellant became aware that Bradley was the individual who had tussled with his brother. Appellant testified that Bradley immediately began screaming at him, and other witnesses testified that Appellant asked who "was messing with his brother," and Bradley responded "it was me."

[Entry #20-8 at 2].

Petitioner appealed his convictions and sentences to the Court of Appeals. [Entry #20-5]. On appeal, Petitioner was represented by Joseph L. Savitz III of the South Carolina Commission on Appellate Defense who filed a brief raising the following issue: "The judge erred by refusing to instruct the jury on the law of self defense." [Entry #20-6 at 4].

On December 5, 2006, the Court of Appeals filed an unpublished decision affirming the conviction and sentence. [Entry #20-8]. The Court of Appeals denied Petitioner's pro se Petition for Rehearing on January 19, 2007. [Entry #20-9, #20-10]. Petitioner filed a pro se Petition for Writ of Certiorari on March 12, 2007 complaining of the trial judge's failure to charge self-defense. [Entry #20-13]. The South Carolina Supreme Court denied certiorari in an order filed November 15, 2007. [Entry #20-15]. The remittitur was issued on November 20, 2007. [Entry #20-16].

Petitioner filed an application for post-conviction relief ("PCR") on March 14, 2008, in which he alleged ineffective assistance of counsel for failing to have the trial court correctly charge the jury on the state's burden of proof for murder and voluntary manslaughter. [Entry #20-4 at 40-47]. A PCR evidentiary hearing was held before theHonorable Michael G. Nettles on November 19, 2008, at which Petitioner and his counsel, Paul Archer, Esq. appeared. [Entry #20-4 at 52-73]. On December 12, 2008, Judge Nettles entered an order of dismissal. [Entry #20-4 at 74-78].

Petitioner appealed from the denial of PCR and was represented by Appellate Defender Kathrine H. Hudgins of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Attorney Hudgins filed a Johnson¹ petition for writ of certiorari in the South Carolina Supreme Court on December 11, 2009 and petitioned to be relieved as counsel. [Entry #20-18]. The petition raised the following issues: (1) "Did the PCR judge err in refusing to find counsel ineffective for failing to request that the judge charge the jury that in order to find the defendant guilty of murder the State must disprove sudden heat of passion, an element of the lesser included charge of voluntary manslaughter?" and (2) "As this case is not yet final, should the trial judge's instruction on the inference of malice from the use of deadly weapon require a new trial?" [Entry #20-18 at 3]. In his pro se brief, Petitioner raised the following issue: "Did the PCR judge err in refusing to find trial counsel ineffective for failing to request that the trial judge charge thejury that in order to find the defendant guilty of murder the State must disprove sudden heat of passion beyond a reasonable doubt?" [Entry #20-19 at 3].

The Supreme Court of South Carolina denied the petition on December 2, 2010 and granted counsel's request to withdraw. [Entry #20-20]. The remittitur was issued on December 21, 2010. [Entry #20-21].

Petitioner filed this federal petition for a writ of habeas corpus on July 20, 2011. [Entry #1].²

II. Discussion

A. Federal Habeas Issues

Petitioner now asserts he is entitled to a writ of habeas corpus on the following grounds:

Ground One: The trial court erred in failing to charge the jury on the law of self-defense denying petitioner his right to a fair trial.

Supporting Facts: At trial petitioner presented evidence of self-defense. Petitioner requested the trial court to charge the jury on the law of self-defense. The trial court refused to give the charge thereby denying petitioner his right to a fair trial as guaranteed by the Constitution of the United States and Amendments thereto.Ground Two: Ineffective Assistance of Counsel. Supporting Facts: Trial counsel was ineffective and Petitioner was prejudiced through counsel's failure to have the trial court correctly charge the jury on the State's burden of proving the absence of sudden heat and passion upon sufficient legal provocation in order to convict petitioner of murder after petitioner presented evidence of sudden heat and passion upon sufficient legal provocation at trial.

[Entry #1 at 5-7].

B. Standard for Summary Judgment

Summary judgment is appropriate only "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." Fed. R. Civ. P. 56(c). Rule 56(c) mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.

The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e). Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (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 federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

C. Habeas Corpus Standard of Review

1. Generally

Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is...