Seay v. Al Cannon, C/A No. 2:17-2814-TMC

• Decision Date: 11 September 2018
• Docket Number: C/A No. 2:17-2814-TMC
• Court: U.S. District Court — District of South Carolina
• Parties: Broderick William Seay, Jr., Petitioner, v. Sheriff Al Cannon, Respondent.

Broderick William Seay, Jr., Petitioner, v. Sheriff Al Cannon, Respondent.

C/A No. 2:17-2814-TMC

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

September 11, 2018

ORDER

Petitioner Broderick William Seay, Jr., a state pretrial detainee, is seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. (ECF No. 1).¹ Petitioner filed a "Motion of Objection for Extension of Time/Dismissal of Charge as Bias and Prejudice" (ECF No. 14) and a motion for summary judgment (ECF No. 29). Respondent has also filed a motion for summary judgment. (ECF No. 17). Before the court is the magistrate judge's Report and Recommendation ("Report"), recommending that Petitioner's motions (ECF Nos. 14 and 29) be denied and Respondent's motion for summary judgment (ECF No. 17) be granted. (ECF No. 38). Petitioner timely filed objections (ECF No. 39), and Respondent filed a reply to those objections (ECF No. 41). For the reasons stated below, the court adopts the Report as modified and denies Petitioner's motions and grants Respondent's summary judgment motion, but grants Petitioner a certificate of appealability.

I. Background/Procedural History

Petitioner is currently a pretrial detainee at the Al Cannon Detention Center. In March of 2015, Petitioner was indicted for murder (ECF No. 16-1), and on July 26, 2016, a jury trial beganwith State Circuit Court Judge Thomas Cooper presiding. (ECF No. 29-2 at 1).² Several witnesses testified on July 26th. Id. at 43-224. After one witness testified on the morning of July 27th, the State informed the trial judge that its next witness, the co-defendant's girlfriend at the time of the murder, Starteasha Grant ("Grant"), was not cooperating and had not shown up for court at 9:00a.m. as directed. (ECF No. 29-2 at 231). Specifically, the assistant solicitor stated:

She is our significant witness. She is the one who sees Mr. Seay with Mr. Howard and Ty after their coming off of Wadmalaw Island. She was the person who then goes to her apartment, sees them taking the tote bag with the weapon or which she believes the weapon is still in the bag, tried to take that into her apartment and puts a halt to that. They then travel to Montague Avenue, try to get a hotel room. And they leave Mr. Seay behind at the Waffle House.

She is the person who sets all of that out for us. I will tell Your Honor that we met with her last Friday. We spoke to her by phone on Saturday. I think even Mr. McCoy was able to reach her Sunday. Since then she has not been cooperative with our office at all. Mr. Hair, my investigator, is present in the courtroom. He has been to her apartment. He has been to her employment. He has spoken to two of her sisters. They indicated that they felt like -- they indicated that she indicated that she had been threatened. I texted her last night and asked her to come to our office at 8:30, that she needed to be in court at 9:00. Mr. Hair texted her and told her that she needed to be present at 9:00 over at the courthouse and I believe he told her a bench warrant will be issued if she did not show.

Since then she did respond to him indicating that she was not going to come, that she was frightened. And so, Your Honor, at this time the State is asking for a bench warrant to be issued against her and for you to allow us some time for the deputies to make that effort.

Id. at 231-32. Defense counsel stated he did "not have any issue with a bench warrant being issued" and it was "not really [his] call." Id. at 232-33. At 11:12a.m., the trial judge issued a bench warrant for Grant's arrest and recessed the trial for the day. Id. at 235-36.

The next morning, the assistant solicitor informed the trial judge that Grant had not beenlocated, and the State moved for a mistrial. Id. at 238-44. The assistant solicitor informed the court that Grant had been served with a subpoena in June, and that she had met with Grant on Friday to go over her testimony. Id. at 238.³ Further, the assistant solicitor stated that someone from the Solicitor's Office had spoken with Grant on Saturday and Defense counsel had spoken to her on Sunday, and that Grant did not appear for court on Wednesday as directed. Id. at 238 -39. Further, the assistant solicitor stated that Grant's sisters indicated to the State investigator that they had not seen Grant since Saturday and that a text message had been sent to the investigator from Grant's phone, which indicated that Grant was scared and would not be coming to court. Id.⁴ The assistant solicitor stated that the State had enlisted the help of the United States Marshal's Office and had been in contact with them that day, but it had no success in locating Grant. Id. Petitioner's trial counsel opposed the motion arguing that the State had not shown manifest necessity. (ECF No. 29-2 at 245-47).⁵ Trial counsel argued that the State still had three or four remaining witnesses that itcould call. Id.. at 245.⁶ The trial judge granted the motion for a mistrial finding that the State had been caught by surprise and that Grant was a critical witness for the prosecution. (ECF No. 29-2 at 250-51). The trial judge stated that he thought the case fell under the rubic of Arizona v. Washington,⁷ and he found a manifest necessity to grant a mistrial. (ECF No. 29-2 at 251-52).

A day later, on Friday, July 29, 2016, Grant was taken into custody, and she was found to be in contempt of court and ordered to remain in custody "with the ability to purge herself of contempt by complying with the subpoena and testifying in the case of State of South Carolina versus Broderick Seay, scheduled for the December 12, 2016 term of court." (ECF Nos. 16-3, 16-4). On August 22, 2016, she was found in contempt of court and ordered to remain in custody with the ability to purge herself by testifying at Petitioner's trial, which was at that time scheduled for the December 12, 2016 term of court. (ECF No. 16-4). She since been released from jail. (ECF Nos.16 at 3 n.1, 16-5 at 26).

On July 17, 2017, Petitioner's counsel filed a motion to dismiss in state court alleging that the indictment was a violation of double jeopardy. (ECF No. 1-1). The State opposed Petitioner's motion. (ECF No. 16-2). After a hearing on the motion, on October 17, 2017, Judge Dennis denied Petitioner's motion to dismiss. (ECF No. 16-6).⁸ During this hearing, defense counsel noted that the State was inconsistent in its recitation of its attempts to contact Grant. (ECF No. 16-5 at 8).Initially, defense counsel noted that he had emails from the State "indicating that they had tried contacting [Grant] via text message throughout the week of trial, and did not get a response from her." Id. Later, he stated that there were inconsistencies - the State initially represented that it had messaged Grant all week without any response and later the State stated it had called Grant only the night before she was to testify. (ECF No. 16-5 at 16). Defense counsel acknowledged that the State had subpoenaed Grant, but argued that the State should have made contact with Grant the first day of trial to ensure her presence at the trial. (ECF No. 16 at 32). In response, at the hearing on the motion to dismiss, the State noted that it had "contacted [Grant] throughout the week and said, you need to be in courtroom such and such at nine o'clock in the morning on this day, to let her know we expected her to be there to testify." Id. at 26. In his written order, Judge Dennis denied the motion to dismiss. (ECF No. 16-6). He found that the State was caught by surprise and not to blame for Grant's failure to appear, and held that the mistrial was warranted by manifest necessity. (ECF No. 16-6 at 7).

Petitioner, proceeding pro se, filed this § 2241 habeas petition the next day. (ECF No. 1).⁹ The response to the Petition was due on January 3, 2018 (ECF No. 7 at 2). On January 3, 2018, Respondent filed a motion for an extension of time within which to file a response, or otherwise plead, which the magistrate judge granted on January 8, 2018. (ECF Nos. 11 and 12). Respondent thereafter timely filed its response and motion for summary judgment on February 2, 2018. (ECFNo. 16 and 17). On February 15, 2018, Petitioner filed a response to the Respondent's summary judgment motion. (ECF No. 20). Then, on March 15, 2018, after having been granted leave to do so, Petitioner, through counsel, filed another response to the Respondent's summary judgment motion and his own motion for summary judgment. (ECF Nos. 24, 29, and 30). On March 29, 2018, Respondent filed a response opposing Petitioner's summary judgment motion (ECF No. 33) and a reply to Petitioner's pro se response (ECF No. 34). On April 16, 2018, Petitioner filed a reply to Respondent's response. (ECF No. 37).¹⁰

II. Applicable Law

Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor. 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. A litigant "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." Monahan v. Cnty. of Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).

III. Discussion

The Report has no presumptive weight and the responsibility to make a final determination...