Saunders v. Warden, Civil Action No.: 2:16-cv-1724-RMG-MGB

• Decision Date: 31 January 2017
• Docket Number: Civil Action No.: 2:16-cv-1724-RMG-MGB
• Parties: Turuk Saunders, #199803, Petitioner, v. Warden, Broad River Correctional Instit. Respondent.
• Court: U.S. District Court — District of South Carolina

Turuk Saunders, #199803, Petitioner, v. Warden, Broad River Correctional Instit. Respondent.

Civil Action No.: 2:16-cv-1724-RMG-MGB

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

January 31, 2017

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 9; see also Dkt. No. 8.) 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, acting pro se, filed the instant action on May 27, 2016. (Dkt. No. 1.) On August 1, 2016, Respondent filed a Motion for Summary Judgment. (Dkt. No. 8; Dkt. No. 9.) On November 10, 2016, Petitioner filed a Response in Opposition to the Motion for Summary Judgment, to which Respondent filed a Reply. (Dkt. No. 20; Dkt. No. 21.)

PROCEDURAL HISTORY

The Petitioner is currently confined within the South Carolina Department of Corrections ("SCDC"). In March of 2007, the Beaufort County Grand Jury indicted Petitioner for: 1) possession with intent to distribute marijuana; 2) possession with intent to distribute cocaine; 3) possession with intent to distribute ecstacy; 4) trafficking in crack cocaine 10-28 grams; and 5) use of a firearm during commission of a violent crime. (Dkt. 8-3 at 595-603.)

The Petitioner was represented at trial by Corey Fleming, Esq. (Dkt. No. 8-1 at 6.) The Petitioner proceeded to a jury trial before the Honorable J. Ernest Kinard, Jr. on May 24, 2010. (Id. at 5.) The jury convicted the Petitioner on the four drug charges, and acquitted the Petitioner on the gun charge. (Dkt. No. 8-2 at 92-93.) Judge Kinard sentenced the Petitioner to two concurrent twenty (20) year sentences on the possession with intent to distribute marijuana and ecstasy, a concurrent twenty-seven (27) year sentence on the possession with intent to distribute crack cocaine and a concurrent twenty-seven (27) year sentence and $50,000 fine on the trafficking charge (Dkt. No. 8-2 at 341-42.)

The Petitioner appealed and was represented by Nicole Nicolette Mace, Esquire. (See Dkt. No. 8-4.) On December 20, 2011, the Petitioner raised the following issues:

1) Whether the trial court erred in denying the appellant's motion for directed verdict when the appellant was merely present and there was no evidence he possessed the drugs found inside the trailer;

2) Whether the trial court violated the appellant's due process rights by failing to obtain the name of a juror who knew a witness who testified at his trial;

3) Whether the trial court abused its discretion by allowing evidence to go back to the jury that was never properly admitted in the presence of the jury.

(Dkt. No. 8-4 at 2.)

In an unpublished, per curiam, opinion filed on July 25, 2012, the South Carolina Court of Appeals affirmed the Petitioner's convictions and sentences. (Dkt. No. 8-5.) The matter was remitted to the lower court on August 10, 2012. (Dkt. No. 8-6.)

On November 30, 2012, Petitioner filed an application for post-conviction relief ("PCR"). (Dkt. No. 8-2 at 108-116.) Petitioner stated that his trial counsel was ineffective in:

1) failing to object to inadmissible hearsay and character evidence testimony regarding the applicant;

2) failing to object to the court allowing evidence to go back to the jury that was never properly admitted in the presence of the jury;

3) failing to properly inquire into the facts of a juror who knew a witness who testified;

4) failing to object to the court's testimony as to the Applicant's conduct at the crime scene where such testimony was never verified by any witness "nor the evidence as to the time of arrival of the Applicant at the crime scene";5) failing to object to the prosecutor's continued reference to him as "Big T" after the court's ruling and the prosecutor agreeing that such would not happen; and

6) failing to know the law of the case by failing to ensure that all the issues raised were preserved for proper review.

(Dkt. No. 8-2 at 111.) The State filed a Return on February 25, 2013. (Dkt. No. 8-2 at 147.)

On August 26, 2013, Scott W. Lee, Esquire, filed an amended application for post-conviction relief on Petitioner's behalf, in which he cited these additional allegations of ineffective assistance of trial counsel:

1. Trial counsel failed to properly challenge the issue of probable cause for issuance of the search warrant which led to the State's discovery of the drugs for which Applicant was charged;

2. Trial counsel failed to properly argue against the admissibility of testimony of Witness Reeves with regard to State v. Lyle and SCRE Rule 404(b), or under any other theory;

3. Trial counsel failed to argue and obtain a ruling on the admissibility of Defendant's prior record for the purposes of impeachment;

4. Trial counsel failed to fully discuss the benefits and pitfalls of Applicant testifying because he did not obtain a ruling on the admissibility of Applicant's prior convictions, thereby preventing Applicant from making a fully informed decision about whether or not he will testify;

5. Trial counsel failed to call exculpatory witnesses who would have refuted testimony offered by the State, despite their ability, availability, and willingness to testify;

6. Trial counsel failed to properly renew and preserve the issue of the admissibility of Witness Reeves' testimony, thereby procedurally barring and preventing same from being considered on appeal; and

7. Trial counsel failed to request a jury instruction from the Court according to the limited purpose of admissibility of testimony and admitted pursuant to State v. Lyle.

(Dkt. No. 8-2 at 144-146.)

On August 27, 2013, an evidentiary hearing was held before the Honorable Deadra L. Jefferson. (Dkt. No. 8-2 at 153.) The Petitioner was present and represented by Scott W. Lee, Esquire. (Dkt. No. 8-2 at 154.) In an order filed March 10, 2014, Judge Jefferson denied the application for post-conviction relief and dismissed the petition. (Dkt. No. 8-3 at 62-88.) The Petitioner filed a Motion to Alter or Amend on April 8, 2014. (Dkt. No. 8-3 at 89-91.) On May 28, 2014, Judge Jefferson denied the Petitioner's motion. (Dkt. No. 8-3 at 92-98.)

Petitioner appealed, and on January 21, 2015, through Chief Appellate Defender Robert M. Dudek, filed a Petition for Writ of Certiorari. (Dkt. No. 8-7, Petition for Writ of Certiorari.) Therein, the Petitioner raised the following issue:

Did the PCR Court erroneously rule that defense counsel had a valid "strategy" not to challenge the sufficiency of the search warrant where counsel misunderstood the concept of "standing" to challenge the warrant, and counsel erroneously decided that if he was going to assert "mere presence" as a defense that he had to accept the judge's erroneous ruling that he could not challenge the search warrant pre-trial?

(Dkt. No. 8-7 at 3.) On June 8, 2015, Assistant Attorney General Justin Hunter filed a return to the petition. (Dkt. No. 8-8, Return to Petition for Writ of Certiorari.)

In an order dated October 8, 2016, the Supreme Court of South Carolina denied the petition or a writ of certiorari. (Dkt. No. 8-9.) The Petitioner filed a pro se Petition for Rehearing, which was rejected by the South Carolina Supreme Court in an order dated December 9, 2015. (Dkt. No. 8-10.) The matter was remitted to the lower court on October 26, 2015. (Dkt. No. 8-11.) The remittitur was filed in the Beaufort County Fourteenth Judicial Circuit Public Index on October 28, 2015. (Dkt. No. 8-12.)

In his pro se Petition for Writ of Habeas Corpus, Petitioner makes the following claims of error:

Ground One: Trial Court erred in denying motion for directed verdict where Appellant was merely present and there was no evidence he possessed the drugs found inside the trailer.

Supporting Facts: SEE MEMORANDUM OF LAW

Ground Two: Trial court violated Appellant's Due Process Rights by failing to obtain the name of a juror who knew a witness who testified at Appellant's trial.

Supporting Facts: SEE MEMORANDUM OF LAW

Ground Three: Trial court abused its discretion by allowing evidence to go back to the jury that was never properly admitted in their presence.

Supporting Facts: SEE MEMORANDUM OF LAW

Ground Four: Ineffective Assistance of Counsel: Failed to object to inadmissible hearsay and character testimony regarding the defendant.

Supporting Facts: SEE MEMORANDUM OF LAW

(Dkt. No. 1 at 5-10.) Petitioner also continued his grounds in an attachment to the petition:

Ground Five: Ineffective assistance of counsel for failing to object to the court allowing evidence to go back to the jury that was never properly admitted during trial.

Ground Six: Ineffective assistance of counsel for failing to properly inquire into the facts of a juror who knew State's witness Mr. Jenkins.

Ground Seven: Ineffective assistance of counsel for failing to object to the court's testimony as to the applicant's conduct at the crime scene where such testimony was never verified by any witnesses nor the evidence to the time of Arrival of the Applicant at the crime scene.

Ground 8: Ineffective assistance of counsel for failing to object to the prosecutor's continued reference to him as "Big T" after court's ruling and prosecutor agreeing that such want happen.

Ground 9: Ineffective assistance of appellate counsel for failing to know the Law of there (sic) case by ensuring that all issues Raised were preserved for proper review.

Ground 10: Ineffective assistance of counsel for failing to properly argue, make a proper record of, and preserve the issue of Probable Cause for issuance of the Search Warrant.

Ground 11: Ineffective assistance of counsel for failing to properly argue, make a proper record of, and preserve the issue of the admissibility of Witness

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