Slater v. Cartledge

• Decision Date: 13 December 2016
• Docket Number: Civil Action No.:2:15-cv-01486-JFA-MGB
• Court: U.S. District Court — District of South Carolina
• Parties: Lord Byron Slater, #279992, Petitioner, v. L. Cartledge, Respondent.

Lord Byron Slater, #279992, Petitioner, v. L. Cartledge, Respondent.

Civil Action No.:2:15-cv-01486-JFA-MGB

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

December 13, 2016

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 upon Respondent's Motion for Summary Judgment (Dkt. No. 36) as well as two motions filed by Petitioner: Petitioner's "Dispositive Motion" (Dkt. No. 34) and Petitioner's Motion for Summary Judgment (Dkt. No. 39).

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 action on or about April 3, 2015. (Dkt. No. 1.) On July 9, 2015, Respondent filed a Motion for Summary Judgment. (Dkt. No. 13; see also Dkt. No. 12.) On February 1, 2016, the undersigned issued a Report and Recommendation, recommending granting Respondent's Motion for Summary Judgment (Dkt. No. 13) and concluding that the instant § 2254 petition was untimely. (Dkt. No. 24.) Petitioner objected, and on March 17, 2016, the Honorable Sol Blatt Jr. issued an Order declining to adopt that Report and Recommendation. (Dkt. No. 29.) Judge Blatt concluded that Petitioner was entitled to equitable tolling; he therefore remanded the matter to the undersigned for further consideration. (Dkt. No. 29.) In accordance with Judge Blatt's ruling, the undersigned issued the following Text Order on March 17, 2016:

TEXT ORDER re 29 Order dated March 17, 2016. In light of Judge Blatt's Order remanding this matter to the undersigned for further consideration (Dkt. No. 29), a new deadline for dispositive motions is hereby established, such that dispositive motions are due on or before April 18, 2016. AND IT IS SO ORDERED.

(Dkt. No. 32.)

On or about March 22, 2016, Petitioner filed a motion entitled "Dispositive Motion." (Dkt. No. 34.) On April 6, 2016, Respondent filed a Renewed Motion for Summary Judgment. (Dkt. No. 36.) By order filed April 6, 2016, 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. 37.) On or about April 11, 2016, Petitioner filed a Motion for Summary Judgment and a Response in Opposition to Respondent's Motion for Summary Judgment. (See Dkt. No. 39.)¹

PROCEDURAL HISTORY

The Petitioner is currently confined within the South Carolina Department of Corrections ("SCDC") at McCormick Correctional Institution. In May of 2001, the Charleston County Grand Jury indicted Petitioner for murder and possession of a firearm during the commission of a violent crime. (Dkt. No. 12-22.) Petitioner was represented by Ashley Pennington, Esquire, and S. Boyd Young, Esquire. (See R. at 1.) Petitioner proceeded to a jury trial before the Honorable Edward B. Cottingham on November 13-15 of 2001. (R. at 1-584.) On November 15, 2011, the jury convicted Petitioner as charged. (R. at 557-58.)² Judge Cottingham sentenced Petitioner to life in prison. (R. at 580-81.)

Petitioner appealed and was represented by Robert M. Dudek, Esquire, of the South Carolina Office of Appellate Defense. (See R. at 617-36.) On April 28, 2003, Petitioner filed a Final Brief of Appellant, wherein he raised the following issues:

1.

Whether the court erred by refusing to instruct on self-defense where there was evidence of a fight and robbery in a parking lot which appellant was not involved in, evidence that a gun was pointed at appellant when he went near the commotion, and evidence that appellant returned fire after hearing a gunshot while on the run fromthe scene, since this constituted evidence of self-defense mandating that instruction?

2.

Whether the court erred by allowing the decedent's mother to testify her son did not have any prior criminal record, since this testimony was not relevant?

3.

Whether the court erred by allowing Officer Hester to testify Deshawn Brown told him that he did not hear anyone else shooting in the parking lot where the victim was hit, since this testimony was inadmissible hearsay?

(R. at 621.)

In a published opinion filed on August 9, 2004, a panel majority of the South Carolina Court of Appeals reversed Petitioner's conviction for murder, concluding that the trial court "erred in failing to charge the jury on self-defense." State v. Slater (Slater I), 360 S.C. 487, 488, 602 S.E.2d 90, 91 (Ct. App. 2004).³ The State filed a Petition for Rehearing, which was denied on September 23, 2004. (R. at 687-700.) On October 25, 2004, the State filed a Petition for Writ of Certiorari, wherein the State raised the following issue:

Whether the majority of the Court of Appeals erroneously held that Respondent was entitled to a self-defense charge because there was no evidence presented to satisfy the first, third and fourth elements of self-defense or that Respondent communicated an intent to withdraw from the conflict, and the only evidence was that Respondent murdered an unarmed and defenseless victim?

(See R. at 637-57.)

In a published opinion filed on April 9, 2007, the Supreme Court of South Carolina reversed the decision of the Court of Appeals, concluding that the "trial court correctly found that Slater was not entitled to a self-defense charge and the court of appeals erred in reversing Slater's conviction on this ground." State v. Slater (Slater II), 373 S.C. 66, 71, 644 S.E.2d 50, 53 (2007). The matter was remitted to the lower court on April 25, 2007. (Dkt. No. 12-11.)

On May 23, 2007, Petitioner filed an application for post-conviction relief ("PCR"). (R. at 744-57.) Therein, he alleged that he was being held in custody unlawfully due to the ineffective assistance of counsel. (R. at 747.) Specifically, Petitioner alleged counsel was ineffective in the following particulars (verbatim):

1. Trial counsel failed to bring to the attention of the trial judge the defective advice of rights warnings, doing so would've aided the motion to suppress defendants [sic] statement and the fruits of the search warrant under fruit of the poisonous tree doctrine.

2. Trial counsel failed to impeach Officer Palmer, who gave conflicting testimony in camera direct examination, doing so would've aided the motion to suppress defendants [sic] statement and the fruits of the search warrant under fruit of the poisonous tree doctrine.

3. Trial counsel failed to request instructions on lesser included offenses of involuntary manslaughter and reckless homicide, which were supported by the evidence.

4. Trial counsel ineffective for allowing two witnesses to take the stand without first having them disclosed to the jury in advance through voir dire, it was a[n] error on counsels [sic] part, witnesses weren't in defendants [sic] favor, and aided the prosecutor in a conviction of the greater offense.

5. Trial counsel ineffective for admitting guilt in opening statement, failing to advance any theory of defense, and attempting to establish only that the defendant killed victim without malice, but presumed prejudice because defendant, who pleads not guilty, is [e]ntitled to a defense.

6. Trial counsel failed to object to the prosecutors [sic] closing argument comments, telling the jury the victim was shot twice while on the ground. There was no forensic medical examiner to prove that theory.

7. Trial counsel duty at voir dire, is to safe guard defendant from possible bias jurors, failed to do so, when counsel did not note the fact to the trial judge, that the incident took place in a church parking lot, and there might've been potential members of that church on defendants [sic] juror panel.

(R. at 748-48.)

On November 16, 2009, an evidentiary hearing was held before the Honorable Deadra L. Jefferson. (R. at 764-811.) Petitioner was present and represented by William Runyon, Esquire. (See R. at 764.) In an order dated December 17, 2009, Judge Jefferson denied the application forpost-conviction relief and dismissed the petition. (R. at 814-22.) On March 25, 2011, Mr. Runyon served a Notice of Intention to Appeal, but the appeal was dismissed as untimely. (See Dkt. No. 12-12.)

On May 10, 2011, Petitioner filed a second application for PCR. (R. at 823-30.) Therein, he sought a belated appeal, and contended PCR counsel was ineffective, for the following reasons (verbatim):

1. PCR counsel didn't notify applicant of PCR judgment until March 25, 2011 order of dismissal was filed December 21, 2009[.]

2. Applicant was denied the opportunity to file a 59(e) to amend order to include things that wasn't addressed in [the] order, due to the late notice of first PCR ruling by PCR counsel's own negligence[.]

3. PCR counsel failed to file appeal in a timely manner, counsel filed appeal March 25, 2011, which the courts ruled untimely[.]

(R. at 823-30.) Petitioner, through Attorney Charles T. Brooks, III, filed a Motion to Amend his application on September 30, 2011. (R. at 831-32.) Therein, Petitioner sought to amend his application to raise the following issues (verbatim):

I) PCR Counsel was ineffective for failing to raise every available issue as required By Rule 71.1(d) S.C.R. CIV. P and failed to file a 59(e) to address the issues.

A) PCR Counsel failed to raise the issue that the implied malice charge impermissibly shifted the burden of proof and created a mandatory presumption in violation of due process, Sandstorm v Montana 99 S.C.T. 2450, 442 U.S. 510, 524, (1979). Holding that "burden shifting presumptions or conclusive presumptions" deprive a defendant of the due process of law and are therefore unconstitutional. See Mullaney v. Wilber, 95 S.Ct. 1881 (1975), a also see State v Jenkins, 443 S.E.2d 244, 252 (1994). The only evidence of malice was the use and

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