Sanders v. Warden of Allendale Corr. Inst.

• Decision Date: 12 July 2018
• Docket Number: Civil Action No.:2:17-cv-01819-HMH-MGB
• Parties: Tunzy A. Sanders, #255493, Petitioner, v. Warden of Allendale Correctional Institution, Respondent.
• Court: U.S. District Court — District of South Carolina

Tunzy A. Sanders, #255493, Petitioner, v. Warden of Allendale Correctional Institution, Respondent.

Civil Action No.:2:17-cv-01819-HMH-MGB

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

July 12, 2018

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

The Petitioner Tunzy A. Sanders ("Petitioner"), a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on Petitioner's Motion to Amend (Dkt. No. 15) and Respondent's Motion for Summary Judgment (Dkt. No. 18; see also Dkt. No. 17.)

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.

The Petitioner filed the instant § 2254 petition on July 6, 2017. (See Dkt. No. 1 at 16 of 16.) On or about October 13, 2017, Petitioner filed a Motion to Amend his petition. (See Dkt. No. 15.)¹ On October 17, 2017, Respondent filed a Motion for Summary Judgment. (Dkt. No. 18; see also Dkt. No. 17.) By order filed October 18, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 19.) On October 19, 2017, the undersigned issued the following Text Order:

TEXT ORDER re 15 MOTION to Amend/Correct 1 Petition for Writ of Habeas Corpus. Pursuant to the Federal Rules of Civil Procedure, Petitioner is able to amend as of right. See Fed. R. Civ. P. 15(a). However, he does not set forth any additional grounds for relief in his Motion to Amend but instead states that he needs anadditional ninety (90) days "to recover documents generated in [his] case that will help [him] identify and preserve the issues for [his] habeas corpus." (Dkt. No. 15 at 1 of 9.) Shortly after Petitioner filed his Motion to Amend (Dkt. No. 15), Respondent filed a Motion for Summary Judgment (Dkt. No. 18; see also Dkt. No. 17), along with the record of this case, consisting of approximately 1800 pages. Given that Petitioner now has access to the state court record, it is ORDERED that Petitioner supplement his Motion to Amend (Dkt. No. 15) within thirty (30) days of the date of this Order. As to any grounds Petitioner seeks to add to his petition, he is directed to Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts. AND IT IS SO ORDERED.

(Dkt. No. 23.)

On or about November 1, 2017, Petitioner filed documents that were docketed as a Motion for Extension of Time. (Dkt. No. 26.)² On November 9, 2017, Petitioner's motion was granted, such that his deadline to supplement his Motion to Amend (Dkt. No. 15) as well as his deadline to respond to the Motion for Summary Judgment (Dkt. No. 18; see also Dkt. No. 17) were extended to December 20, 2017. (Dkt. No. 27.) On or about November 13, 2017, Petitioner--this time apparently Petitioner himself--filed a Motion for Extension of Time. (Dkt. No. 30.) Petitioner's motion was granted, such that his deadline to supplement his Motion to Amend (Dkt. No. 15) as well as his deadline to respond to the Motion for Summary Judgment (Dkt. No. 18; see also Dkt. No. 17) were extended to January 11, 2018. (Dkt. No. 31.)

On or about November 21, 2017, Petitioner--again apparently this time himself--filed a Motion to Strike the Respondent's Motion for Summary Judgment. (Dkt. No. 33.) In an order dated November 29, 2017, the Motion to Strike was denied. (Dkt. No. 34.) Petitioner was reminded that his Response in Opposition to the Motion for Summary Judgment as well as his supplement to the Motion to Amend were due January 11, 2018. (Dkt. No. 34.)

On or about December 19, 2017, Petitioner filed a Motion "to Have His Attachments Numbered." (Dkt. No. 36.) On December 27, 2017, the undersigned issued the following order:

TEXT ORDER denying 36 Motion "to Have His Attachments Numbered." In his Motion "to Have His Attachments Numbered," Petitioner states that he "is sendingthis motion to have his attachments numbered[] for future use when filing his motion of return for summary judgment due January 11, 2018." (Dkt. No. 36.) Petitioner attached 116 pages to his motion. Petitioner's motion is denied. To the extent Petitioner needs to refer to documents in responding to the Motion for Summary Judgment, Petitioner may number (or otherwise identify) such documents himself. For example, Petitioner may label his attachments as Attachment A, Attachment B, Attachment C, etc. AND IT IS SO ORDERED.

(Dkt. No. 39.)

On or about January 8, 2018, Petitioner--again apparently himself--filed a Motion to Appoint Counsel. (Dkt. No. 41.) On or about January 10, 2018, Petitioner--again apparently himself--filed a Motion "to Stay in Court Until Production of Documents is Completed." (Dkt. No. 44.) On or about January 12, 2018, Petitioner filed an "Emergency Motion for Extension of Time to file Response in Opposition to Respondent's Motion for Summary Judgment and Amended Petition for Habeas Corpus Relief." (Dkt. No. 42.)³

On February 23, 2018, the undersigned issued an order denying Petitioner's Motion to Appoint Counsel, denying Petitioner's Emergency Motion for Extension of Time, and denying Petitioner's Motion "to Stay in Court Until Production of Documents is Completed." (Dkt. No. 48.)⁴ As Petitioner is proceeding pro se and still had not responded to the Motion for Summary Judgment, the Court filed an Order on February 23, 2018, giving the Petitioner through March 15, 2018, to file his response to the Motion for Summary Judgment. (Dkt. No. 49.) The Petitioner was specificallyadvised that if he failed to respond, this action would be dismissed with prejudice for failure to prosecute.

Petitioner filed a Response in Opposition to the Motion for Summary Judgment on or about March 16, 2018. (Dkt. No. 51; see also Dkt. No. 57.) The undersigned construes Petitioner's response as the supplement to his Motion to Amend. As discussed herein, the undersigned recommends granting Petitioner's Motion to Amend (Dkt. No. 15) and granting Respondent's Motion for Summary Judgment (Dkt. No. 18).

PROCEDURAL HISTORY

The Petitioner is currently confined within the South Carolina Department of Corrections ("SCDC") at Allendale Correctional Institution. In July of 1998, the Barnwell County Grand Jury indicted Petitioner on the charge of murder; in January of 1999, the Barnwell County Grand Jury indicted Petitioner on charges of attempted armed robbery and criminal conspiracy. (R. at 809-14.)⁵ He was convicted after a jury trial, but his convictions were reversed on appeal on the ground that his Sixth Amendment right to counsel was violated when his sister, an attorney from Michigan, was removed as counsel prior to trial. See State v. Sanders, 356 S.C. 214, 588 S.E.2d 142 (Ct. App. 2003). After his convictions were reversed, Petitioner was represented by Daniel W. Williams, Esquire, and Brenda K. Sanders, Esquire. (See R. at 1.)⁶ Petitioner proceeded to a bench trial before the Honorable James R. Barber, III on February 5-8 of 2001. (R. at 1-465.) On February 8, 2001, Petitioner was found guilty as charged. (R. at 427-29.) Judge Barber sentenced Petitioner to thirty-five years on the conviction for murder, twenty-five years on the conviction for armed robbery, andfive years on the conviction for criminal conspiracy; all of the sentences were set to run concurrently. (R. at 431.)

Petitioner appealed and was represented by Joseph L. Savitz, III, Esquire, of the South Carolina Office of Appellate Defense. (See Dkt. No. 17-9.) In his Final Brief of Appellant filed on December 10, 2002, Petitioner raised the following issue:

The judge erred by considering the prior testimony of jailhouse informer Vigier, since the defense was unable to confront and cross-examine Vigier about a subsequent revelation from the solicitor that there had been a "tacit understanding" he would receive "some benefit by virtue of his cooperation in this case."

(Dkt. No. 17-9 at 4 of 11.)

In a published opinion filed on October 20, 2003, the South Carolina Court of Appeals affirmed the judgment of the lower court. (See Dkt. No. 17-11.)⁷ The South Carolina Court of Appeals denied the Petition for Rehearing, (Dkt. No. 17-13), and on May 20, 2004, Petitioner filed a Petition for Writ of Certiorari, (Dkt. No. 17-14).⁸ On May 18, 2005, the Supreme Court of South Carolina denied the Petition for Writ of Certiorari. (Dkt. No. 17-16.) The matter was remitted to the lower court on May 19, 2005. (Dkt. No. 17-17.)

On May 11, 2006, Petitioner filed an application for post-conviction relief ("PCR"). (R. at 480-509.) In his application, he raised the following grounds for review:

(1) Did the trial court err when it allowed the admission of Aurelien Vigier's prior testimony when it violated applicant's Confrontation Clause rights because he was not afforded an opportunity to cross-examine the witness regarding the "subsequent revelations" pertaining to the State's alleged "deal" with the witness?

(2) Did the trial judge err in ruling appellant's cellmates were not government agents at the time applicant allegedly made incriminating statements to them? Did the trial judge err in admitting the testimony of David Staley and Aurelien Vigier who were jailhouse informants who had initiated contact with the applicant and who were acting as government agents at the time the alleged statements were made by the applicant?

(3) Did the trial court err when it denied the Appellant's Motion to Quash Maurice Benning's testimony?

(4) Did the Appellant's appeal counsel provide ineffective assistance of counsel by failing to address all of the issues in his Appeal to the Court of Appeals and the Supreme Court despite the fact that the Appellant specifically requested that he do so and Appellant's counsel failed to address

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