Sabb v. Warden of Broad River Corr. Inst.
| Decision Date | 15 September 2022 |
| Docket Number | C. A. 5:21-2603-BHH-KDW |
| Parties | Roosevelt Sabb, Jr., Petitioner, v. Warden of Broad River Correctional Institution, Respondent. |
| Court | U.S. District Court — District of South Carolina |
REPORT AND RECOMMENDATION
Roosevelt Sabb, Jr. (“Petitioner”) is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections. He 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 Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 27, 28. 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. ECF No. 29. Petitioner filed a response on December 20, 2021, ECF No. 32, to which Respondent filed a reply on December 29 2021. ECF No. 33.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
Petitioner was indicted by the Clarendon County grand jury in the October 2014 term of court for murder. App. 77-78.[1] On October 3, 2017, Petitioner appeared before the Honorable George M. McFadden, Jr. for a plea hearing. App. 1-11. Petitioner was represented by Attorney Shaun C. Kent and Assistant Solicitor Christopher DuRant appeared on behalf of the State. Id. According to the facts presented by the solicitor, Petitioner and the victim, Keith Allen Smith (“Smith”), who was Petitioner's first cousin, were visiting their family on July 4. App. 6. Petitioner and Smith had been together throughout the day and later that evening they went to a nightclub. Id. Petitioner and Smith had an argument after they left the club, and they had another argument once they arrived at their uncle's house. Id. The two began to fight in the yard, wrestling and hitting each other. App. 6-7. Family members broke up the fight, and Smith went inside their uncle's house, while Petitioner remained outside in his vehicle. App. 7. A short while later, Smith went back outside slamming his uncle's door in anger, and his uncle followed Smith to confront him. Id. Their uncle was on the stoop, Smith was in the grass in front of the house, and Petitioner was in the car. Id. Petitioner revved the motor in his vehicle and accelerated forward pinning Smith between Petitioner's car and another vehicle parked by the house. Id. Petitioner then backed up his vehicle, drove out of the driveway, pulled into a vacant lot across the street, and exited his vehicle to wait for law enforcement to arrive. Id. Smith was pronounced dead on the scene. App. 8. After the solicitor recited the facts of the case, Petitioner indicated the facts recited by the solicitor were substantially and essentially correct and that he still wished to plead guilty. App. 9. Petitioner entered a negotiated guilty plea to voluntary manslaughter and Judge McFadden sentenced him to 15 years imprisonment. App. 9-11. Petitioner did not file a direct appeal. ECF No. 1 at 2.
Petitioner filed an application for post-conviction relief (“PCR”) on March 29, 2018, in which he alleged he was being held unlawfully due to ineffective assistance of counsel. App. 13-21.
The State filed a return on August 6, 2018. App. 22-26. A PCR evidentiary hearing was held before the Honorable Kristie F. Curtis, Circuit Court Judge, on March 27, 2019. App. 28-61. Petitioner was present and represented by Attorney Timothy L. Griffith, and Attorney Janelle H. Gregory appeared on behalf of the State. See id. Petitioner and his trial counsel Shawn Kent testified at the hearing. Id. On May 7, 2019, Judge Curtis filed an order dismissing Petitioner's PCR application with prejudice, making the following findings of fact and conclusions of law:
This Court viewed the testimony presented at the evidentiary hearing, observed the witnesses presented at the hearing, passed upon their credibility, and weighed the testimony accordingly. Further, this Court has reviewed the Clerk of Court records regarding the subject convictions, the plea transcript, and Applicant's records from the South Carolina Department of Corrections, the application for post-conviction relief, and the legal arguments made by the attorneys. Set forth below are the relevant findings of fact and conclusion of law as required by S.C. Code Ann. § 17-27-80 (2003).
This Court finds Applicant has failed to meet his burden of proving he is entitled to post- conviction relief on any of his allegations of ineffective assistance of counsel. Applicant has failed to prove both deficiency on the part of Counsel and any prejudice therefrom. Moreover, this Court notes the record reflects the knowing and voluntary nature of Applicant's guilty plea. Furthermore, after observing the witnesses and passing on their credibility, this court finds Counsel's testimony to be credible. By contrast, this Court finds Applicant's testimony lacks credibility.
Counsel failed to meet with Applicant and review discovery
Applicant testified Counsel failed to meet with him for the thirty-four months before the guilty plea. Applicant testified he met with Counsel the day before the guilty plea and Counsel wrote “10-12 years” on the board. Applicant testified he only reviewed partial discovery with Counsel, which included the MAIT animation.[2]
However Counsel testified he could not meet with Applicant in person because Applicant was a commercial truck driver and constantly out of town. Counsel testified he did communicate with Applicant over the phone while the case was pending. Counsel testified when he was provided notice that Applicant's case was coming up for trial, he called Applicant and told him to come home. Counsel testified there was little movement on his case from 2014-2017, but he was still working it during that time. Counsel testified he met with Applicant to discuss his case and get Applicant's consent to approach the solicitor for a plea. Counsel testified the meetings he had with Applicant lasted three to four hours. Counsel testified he reviewed all of the discovery with Applicant, which included more than the animation. Counsel testified he has notes indicating Applicant received all of the discovery Counsel had in the case.
This Court finds Counsel's testimony with respect to this allegation very credible, whereas- Applicant's testimony is not credible. Based on the foregoing, this Court finds Applicant has failed to establish Counsel was deficient or any resulting prejudice from Counsel's alleged deficiency. Therefore, this allegation is denied and dismissed with prejudice.
Counsel failed to investigate Applicant's charge
Applicant contends Counsel was ineffective for failing to investigate. “Criminal defense attorneys have a duty to undertake a reasonable investigation, which at a minimum includes interviewing potential witnesses and making an independent investigation of the facts and circumstances of the case.” Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60, 64 (2011) (citations omitted). “‘Although counsel should conduct a reasonable investigation into potential defenses, Strickland does not impose a constitutional requirement that counsel uncover every scrap of evidence that could conceivably help their client.'” Tucker v. Ozmint, 350 F.3d 433, 442 (4th Cir. 2003) (quoting Green v. French, 143 F.3d 865, 892 (4th Cir. 1998)). “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Strickland, 466 U.S. at 691; Wiggins v. Smith, 539 U.S. 510, 521-22 (2003). Moreover, “failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to result.” Porter v. State, 368 S.C. at 385-86, 629 S.E.2d at 357, abrogated on other grounds by Smalls, 422 S.C. 174, 810 S.E.2d 836 (citing Moorehead v. State, 329 S.C. 329, 334, 496 S.E.2d 415, 417 (1998)).
Here, Counsel testified he went to the scene with his investigator and met with the lead investigator from the law enforcement agency that was assigned to Applicant's case. Counsel testified he consulted with an expert in accident reconstruction regarding the MIAT [sic] investigator's animation and findings and the consultation confirmed the MAIT investigator's animation and findings were accurate. Counsel testified Applicant could not maintain the incident was an accident because of the swerve marks and the engine revving. This Court further finds there was no reasonable basis for Counsel to believe any additional investigation would have been beneficial.
This Court further finds Applicant has failed to establish any resulting prejudice from the alleged deficiency. Applicant failed to testify as to what additional investigation Counsel should have conducted or what benefit he could have realized from any additional investigation. Applicant's bare assertions, without more, do not give rise to the level of proof required for Applicant to meet his burden. See Porter, 368 S.C. at 385-86, 629 S.E.2d at 357 (‘‘Failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to result.”). Accordingly, this allegation must be denied and dismissed with prejudice.
Applicant accepted the State's plea...
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