Russell v. Warden Prison

• Decision Date: 16 December 2015
• Docket Number: C/A No. 0:15-267-DCN-PJG
• Court: U.S. District Court — District of South Carolina
• Parties: James Russell, Petitioner, v. Warden of Broad River Prison, Respondent.

James Russell, Petitioner, v. Warden of Broad River Prison, Respondent.

C/A No. 0:15-267-DCN-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

December 16, 2015

REPORT AND RECOMMENDATION

The petitioner, James Russell, a self-represented state prisoner, filed this 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 the respondent's motion for summary judgment. (ECF No. 19.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised the petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 20.) Russell filed a response in opposition (ECF No. 27), and also filed a motion requesting an evidentiary hearing (ECF No. 29). Having carefully considered the parties' submissions and the record in this case, the court finds that the respondent's motion for summary judgment should be granted and Russell's Petition denied.

BACKGROUND

Russell was indicted in December 2005 in Greenville County for first-degree criminal sexual conduct with a minor (05-GS-23-10278). (App. at 351-52, ECF No. 18-12 at 176-77.) Russell was represented by Richard H. Warder, Esquire, and on March 5-7, 2007, was tried by a jury and found guilty as charged. (App. at 245-46, ECF No. 18-12 at 70-71.) The circuit court sentenced Russell to thirty years' imprisonment. (App. at 249, ECF No. 18-12 at 74.)

Russell timely appealed and was represented by Eleanor Duffy Cleary, Esquire, of the South Carolina Commission on Indigent Defense, who filed a brief on Russell's behalf that raised the following issues:

I. Whether the trial judge should have excluded the prior consistent statement of the child accuser because it improperly bolstered his testimony.

II. Whether the trial judge should have excluded the videotape because its probative value was substantially outweighed by its prejudicial impact.

(App. at 254, ECF No. 18-12 at 79.) On May 18, 2009, the South Carolina Court of Appeals affirmed Russell's conviction and sentence. (State v. Russell, 679 S.E. 2d 542 (S.C. Ct. App. 2009), ECF No. 18-1.) Russell attempted to file a pro se petition for rehearing on or about June 8, 2009 (ECF No. 18-3), but the Clerk of Court for the South Carolina Court of Appeals returned Russell's filing because it was not filed by counsel and because it was not filed within the time limits allowed by South Carolina Appellate Court Rule 221(a). (ECF No. 18-4.) The remittitur was issued on June 4, 2009.¹ (ECF No. 18-2.)

Russell filed a pro se application for post-conviction relief ("PCR") on January 12, 2010 in which he raised the following issues, as summarized by the respondent:

1. Ineffective assistance of trial counsel:

a. Failed to challenge the indictment as fatally defective.

b. Failed to timely notify the State of an alibi defense.

c. Failed to properly select the jury.

d. Failed to call Douglas Sellars as a witness.

e. Failed to depose the victim, the victim's mother, or the victim's grandmother.

f. Failed to submit as evidence a letter from the victim's mother.

g. Failed to subpoena the victim's mother.

h. Failed to challenge the testimony of the victim's grandmother.

i. Failed to challenge the victim's videotaped statement.

j. Failed to challenge § 17-23-175 as unconstitutional.

k. Failed to challenge § 17-23-175 as unfairly applied in this case.

l. Failed to adequately meet with the Applicant.

m. Failed to request the videotape be redacted.

n. Failed to request the videotape be shown at trial prior to the victim's testimony.

o. Failed to subpoena the victim's teachers or counselors.

p. Failed to move for reconsideration of the sentence.

q. Failed to "have the Court flesh out the details of his prior conviction for 3rd degree sexual conduct with a minor in West Virginia, to demonstrate the triviality of that charge."

r. Failed to "suggest to the trial judge that the charge against [him] had been instigated by the mother and grandmother, for personal reasons of vindictiveness."

s. Failed to challenge the police reports.

2. Ineffective assistance of appellate counsel

a. "[R]aised in oral argument the very issue she failed to argue in her brief."

b. Failed to inform of the right to petition the Court of Appeals for rehearing.

c. Failed to inform of the right to file a petition for writ of certiorari at the Supreme Court.

(Russell v. State of South Carolina, 10-CP-23-285, App. at 296-310, ECF No. 18-12 at 121-35.) On November 9, 2011, the PCR court held an evidentiary hearing at which Russell appeared and testified and was represented by Caroline Horlbeck, Esquire. By order filed December 22, 2011, the PCR court denied and dismissed Russell's PCR application with prejudice. (App. at 343-49, ECF No. 18-12 at 168-74.)

Russell, represented by Appellate Defender Dayne C. Phillips, Esquire, of the South Carolina Commission on Indigent Defense, filed a petition for a writ of certiorari on October 1, 2012 that raised the following question:

Did the PCR Court err in finding that trial counsel provided effective assistance of counsel where the trial court granted the state's motion to exclude Petitioner from offering an alibi defense after trial counsel violated the court rule requiring him to timely notify the State of an alibi witness?

(ECF No. 18-7.) On September 24, 2014, the South Carolina Court of Appeals issued an Order denying Russell's petition for a writ of certiorari. (ECF No. 18-9.) The remittitur was issued October 10, 2014. (ECF No. 18-10.)

Russell filed the instant Petition for a writ of habeas corpus on January 16, 2015.² (ECF No. 1.)

FEDERAL HABEAS ISSUES

Russell's federal Petition for a writ of habeas corpus raises the following issues:

I. Ineffective Assistance of Trial Counsel

II. Ineffective Assistance of Appellate Counsel.

a. "Raised in oral argument the very issue she failed to raise in her brief."

b. Failed to inform of the right to petition the court of appeal for rehearing.

c. Failed to inform of right to petition for writ of certiorari at the Supreme Court.

(Pet., ECF No. 1.) In Russell's "Amendment and Memorandum of Law in Support of § 2254 Petition," he specifies the following grounds:

Ground One: Ineffective Assistance of Counsel

1(A) The State Court contrarily and unreasonably applied Strickland to counsel's ineffectiveness in failing to timely comply with the alibi defense notice rule under South Carolina Law.

1(B) The State Court contrarily and unreasonably applied Strickland to counsel's ineffectiveness in failing to investigate and subpoena witness Douglas Sellers to trial and the pretrial hearings.

1(C) The State Court contrarily []and unreasonably applied Strickland to counsel's ineffectiveness in failing to lay as foundation and submit as evidence letters from the victim's mother.

1(D) The State Court contrarily and unreasonably applied Strickland to counsel's ineffectiveness in failing to subpoena the victim's mother, Christina Nix, to trial and the pretrial hearings.

1(E) The State Court contrarily and unreasonably applied Strickland to counsel's ineffectiveness in failing to effectively challenge the testimony of victim's grandmother . . . on cognizant legal grounds.

1(F) The State Court contrarily and unreasonably applied Strickland to counsel's ineffectiveness in failing to effectively challenge the victim's videotape statement on cognizant legal grounds.

1(G) The State Court contrarily and unreasonably applied Strickland to counsel's ineffectiveness in failing to effectively challenge S.C. Code of Law [§] 17-23-175 as unconstitutional on cognizant legal grounds.

1(H) The State court contrarily and unreasonably applied Strickland to counsel's ineffectiveness in failing to effectively challenge the indictment as fatally defective.

1(I) The State Court contrarily and unreasonably applied Strickland to counsel's ineffectiveness in failing to properly select the jury.

1(J) The State Court contrarily and unreasonably applied Strickland to appellate counsel's ineffectiveness in failing to brief the very issue she argued at oral argument before the S.C. Appellate Court.

1(K) The State Court contrarily and unreasonably applied Strickland to appellate counsel's ineffectiveness in failing to inform and consult the Defendant of his right to petition the S.C. Court of Appeals for rehearing.

1(L) The State Court contrarily and unreasonably applied Strickland to appellate counsel's ineffectiveness in failing to inform and consult the Defendant of his right to file a petition of writ of certiorari to the S.C. Supreme Court.

1(M) The State Court contrarily and unreasonably applied Strickland to trial counsel's ineffectiveness in failing to challenge § 17-23-175 as unfairly applied in this case.

1(N) The State Court contrarily and unreasonably applied Strickland to trial counsel's ineffectiveness in failing to meet with the Defendant.

1(O) The State Court contrarily and unreasonably applied Strickland to trial counsel's ineffectiveness in failing to request the videotape of child victim be redacted.

1(P) The State Court contrarily [a]nd unreasonably applied Strickland to trial counsel's ineffectiveness in failing to request videotape of child victim be shown prior to the trial testimony of child victim was presented to the jury.

1(Q) The State Court contrarily and unreasonably applied Strickland to trial counsel's ineffectiveness in failing to subpoena child victim's school teacher and counselor.

1(R) The State Court contrarily and unreasonably applied Strickland to trial counsel's ineffectiveness in failing to request a jury instruction on witnesses' bias and witnesses' vindictiveness as underlying motivation for child victim's mother's and grandmother's testimonies.

Ground Two: Trial Court should have excluded the videotape because its probative value was substantially outweigh[ed] by its prejudicial impact, and

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