Shepard v. Padula, Civil Action No. 6:11-1457-MBS-KFM

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtKevin F. McDonald
PartiesRay Anthony Shepard, Petitioner, v. Anthony J. Padula, Warden, Respondent.
Docket NumberCivil Action No. 6:11-1457-MBS-KFM
Decision Date27 July 2012

Ray Anthony Shepard, Petitioner,
v.
Anthony J. Padula, Warden, Respondent.

Civil Action No. 6:11-1457-MBS-KFM

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

Dated: July 27, 2012


REPORT OF MAGISTRATE JUDGE

The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2254.

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

UNDERLYING CASE FACTS

On Friday, October 5, 2007, the Kershaw County Sheriff's Office executed a search warrant at the petitioner's residence in Elgin, South Carolina (App. 8). While authorities were executing the search warrant, Lt. David Downey, who had attended high school with the petitioner, as well as Investigator Brockelberry, saw the petitioner fleeing the scene and gave chase. During the chase, the petitioner dropped a purple Crown Royal bag that was later determined to contain 64.02 grams of crack cocaine, 27.94 grams of powder cocaine, 1.7 ounces of marijuana, and $290 in cash (App. 9). The following Monday, the petitioner, who had other pending criminal charges, reported to roll call where he was arrested (App. 10). He was subsequently indicted for trafficking crack cocaine, 28-100 grams, third offense (App. 124-25).

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BACKGROUND

The petitioner is currently confined at Lee Correctional Institution in the South Carolina Department of Corrections. On June 17, 2008, the petitioner, represented by Robert Butcher, entered a negotiated plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) before the Honorable Ned Miller in Camden (App. 1, 6). After entering his plea, and explaining he was in no way coerced to enter into the plea agreement, the plea court advised the petitioner of the following: (1) as part of the negotiated plea, the petitioner would receive a 15 year sentence (App. 3-5); (2) he had a right to trial by jury; (3) he had a right to confront his accusers and subpoena witnesses to present a defense; (4) he could not be forced to testify and if he declined to testify, the jury could not hold that fact against him; and (5) that by pleading guilty he would be waiving his right to challenge any evidence seized by the State including any potential statements he may have given (App. 5-6). After the plea colloquy, the petitioner acknowledged that he understood each of the rights the plea court had discussed with him and confirmed that he still wished to plead guilty (App. 6). The petitioner further informed the plea court that he understood that he was receiving a reduction in the offense and a negotiated sentence in exchange for his plea. The petitioner added that he was satisfied with counsel's representation (App. 7). Finally, the State added that as part of the plea negotiations the petitioner's nine remaining charges would be dismissed1 (App. 8). Following the State's factual recitation, the petitioner agreed that there was a "substantial likelihood" a jury would find him guilty of the indicted offense. Moreover, the petitioner agreed with the State that he had three prior drug convictions (App. 13). The plea court found petitioner's plea was freely and voluntarily tendered and, pursuant to the negotiations, sentenced the petitioner to 15 years imprisonment (App. 13). The petitioner did not file a direct appeal.

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On August 15, 2008, the petitioner filed an application for post-conviction relief ("PCR") alleging: (1) "falsely arrest/ineffective assistance of counsel[;]" and (2) "arrest warrant invalid due to indictment invalid/coerced plea" (App. 17-23). On April 17, 2009, the State filed a return requesting an evidentiary hearing (App. 24-29). On May 13, 2009, an evidentiary hearing was conducted before the Honorable Alison R. Lee in Columbia (App. 30). The petitioner was represented by Charlie J. Johnson, Jr., while the State was represented by Assistant Attorney General Brian Petrano (App. 30).

At the hearing, the petitioner; his plea counsel; Casper Shepard, the petitioner's nephew; and Reneashia Williams, the petitioner's step-niece, testified (App. 31). At the conclusion of the hearing, the PCR court issued a verbal order denying relief and requesting the State prepare an order reflecting its decision (App. 108-14). On September 28, 2009, the PCR court issued an order denying relief (App. 117-23). Specifically, the PCR court made the following findings of fact and conclusions of law:

The Applicant testified that this was a trafficking case, that he pled to a negotiated fifteen (15) years and was represented by Robert Butcher whom he met a number of times prior to the plea. Law enforcement officers executed their search warrant and basically raided his home but he was not home. According to the Applicant, law enforcement alleged that while executing the warrant the Applicant fled on foot dropping a package of drugs while fleeing. The officer, who made the claim, David Downy (sic), was a person Applicant knew from high school. The Applicant maintains that he was not the person seen fleeing and dropping the drugs. The Applicant and the officer who claimed to recognize the Applicant fleeing from the scene knew each other from high school. They had been involved in some conflict. Applicant claims the identification was tainted due to the officer's past animosity toward the Applicant. The Applicant testified that he never informed plea counsel of this purported prior history with the officer. The Applicant also stated that plea counsel failed to call any witnesses who would

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testify that he was not present at the house when the search warrant was executed.
The Applicant testified that he was incorrectly advised by plea counsel that this was a third (3rd) offense, when in fact his prior record dictates that this charge would only be a first (1st) offense. The Applicant testified that he would have gone to trial if he had known this was a first offense. The Applicant has multiple drug convictions from 1985, 1991 and 1996. Specifically, in 1985 he was convicted of an accommodation sale of marijuana. In 1991, he was convicted of possession of cocaine, and in 1996, he was convicted of possession of cocaine, second offense. The Applicant testified that he asked for and was never provided a copy of discovery materials.
Plea counsel testified that the Applicant had several pending trafficking charges, and that this charge was for a trafficking, third offense. Plea counsel testified that it is his interpretation of S.C. Code § 44-53-470 (1) and (2) that the ten (10) year limitation on the use of prior drug convictions only applies if the pending, i.e. new, charge is for possession. There is no time limit for prior drug offenses when the "new" charge is for trafficking.
Plea counsel's investigation regarding the warrant execution and the identification of the Applicant as the person fleeing who dropped the drugs revealed a substantial factual basis for the plea and therefore, the State would be able to convict. The narcotics officer recognizing the person who dropped the drugs knew the Applicant from high school. This officer, David Downy (sic), identified Applicant. The Applicant never bothered to tell plea counsel about the purported past animosity between the Applicant and Officer Downy (sic).
Plea counsel testified that the Applicant always maintained that he was not there, and that Applicant told him that Crystal Shepard could verify that he was not there. According to plea

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counsel, Crystal Shepard was very uncooperative and in his opinion not credible. She could just as easily testify for the State. Plea counsel does not recall Applicant mentioning anyone named "Casper." While an alibi defense was possible, the purported alibi witnesses were unreliable or could not be contacted. It would be difficult to challenge or counter the testimony from the narcotics officer, Downey; he makes an excellent witness for the State. Plea counsel's recollection was that both the narcotics officers would be able to identify the Applicant, not just Downey.
Plea counsel testified that he believed it was appropriate to advise Applicant to accept the plea. Nine other drug charges were dropped, some of which were trafficking charges. Plea counsel met with Applicant several times. They had long talks about going to trial, the positive identification, and the trouble with the "alibi" witnesses. Applicant was going to attempt to cooperate with the State and "flip" on some other drug dealers. Plea counsel testified that he and Applicant discussed this issue for several weeks. Ultimately the Applicant was identified by three (3) people as the person who dropped the drugs when fleeing from the search warrant execution. First, the Applicant's wife told law enforcement that it was "Ray's Crown Royal bag." Then Officer Brockenberry (sic), who also executed the search warrant, indicated that it was suspect number one (1), i.e. the Applicant, who he saw fleeing. Also, there was Officer Downey who knew the Applicant from high school and saw him flee and drop the drugs.
The Applicant then presented testimony from two witnesses, Casper Shepard and Reneasha Williams, who testified that the
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