Smith v. Padula

• Decision Date: 11 May 2006
• Docket Number: No. 2:05-2964-PMD-RSC.,2:05-2964-PMD-RSC.
• Citation: 444 F.Supp.2d 531
• Parties: John Timothy SMITH, # 233610 Petitioner, v. Warden A.J. PADULA; Attorney General of the State of South Carolina, Respondents.
• Court: U.S. District Court — District of South Carolina

444 F.Supp.2d 531

John Timothy SMITH, # 233610 Petitioner, v. Warden A.J. PADULA; Attorney General of the State of South Carolina, Respondents.

No. 2:05-2964-PMD-RSC.

United States District Court, D. South Carolina.

May 11, 2006.

John Timothy Smith, Bishopville, SC, Pro se.

Donald John Zelenka, SC Attorney General's Office, Columbia, SC, for Respondents.

ORDER

DUFFY, District Judge.

This matter is before the court upon the Magistrate Judge's recommendation that summary judgment be entered in favor of Respondents. The record includes a Report and Recommendation of a United States Magistrate Judge ("R & R"), which was made in accordance with 28 U.S.C. § 636(b)(1)(B). A petitioner may object, in writing, to an R & R within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). Petitioner John Timothy Smith ("Smith") timely filed objections to the R & R.

BACKGROUND

Petitioner Smith was indicted for murder in April of 1996 by the Greenville County Grand Jury (1996-GS-23-2927). On May 21, 1996, Smith proceeded to a jury trial before the Honorable Paul M. Burch, at the conclusion of which the jury found Smith guilty of murder. Judge Burch sentenced Smith to imprisonment for the remainder of his natural life.

Petitioner Smith appealed his conviction and sentence with the help of an attorney. Petitioner's attorney filed a brief raising as the sole issue: "whether the court erred when it admitted into evidence state's exhibit 57, a picture of the victim's skull and reflected scalp from the autopsy where the probative value of this photo was substantially outweighed by prejudice to the defendant?" (App. II at 247.) After a review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the South Carolina Supreme Court affirmed Smith's conviction and sentence. State v. Smith, Op. No. 99-MO-035 (March 30, 1999); (App. II at 286.) The Supreme Court denied a petition for rehearing on May 13, 1999, and the remittitur was entered on May 13, 1999.

Thereafter, on June 17, 1999, Petitioner Smith filed an application for post-conviction relief. William C. McMaster, III, represented Petitioner at a hearing on August 27, 2002, before the Honorable John W. Kittredge. Judge Kittredge initially dismissed Smith's case due to Smith's assaultive conduct. However, on November 1, 2002, the court entered an Order granting Petitioner a new trial, finding Petitioner's trial counsel's representation constitutionally ineffective due to his failure to object to the trial judge's denial of a jury charge on involuntary manslaughter. (App. II at 327-30.) The state filed a motion to alter or amend on November 1, 2002, which the court denied on January 15, 2003. (App. II at 335.)

On October 22, 2003, the state filed for a Writ of Certiorari, positing the following questions: (1) "Did the lower court err in finding that the Respondent was entitled to an involuntary manslaughter charge?"; and (2) "Did the lower court err in finding that trial counsel was ineffective for failing to preserve for appeal the trial court's denial of an involuntary manslaughter charge?" On November 5, 2004, the Supreme Court granted certiorari, and the parties subsequently filed their briefs. The Supreme Court reversed the grant of post-conviction relief in a summary per curiam Order on June 20, 2005. See Smith v. State of South Carolina, Memo. Op. No.2005-MO-031 (June 20, 2005).

On October 28, 2005, Petitioner Smith filed the present pro se¹ petition pursuant to 28 U.S.C. § 2254, raising the following grounds for relief:

I. Trial counsel was ineffective in not preserving for direct appeal the trial court's denial of an involuntary manslaughter charge.

A. Jury charge of involuntary manslaughter was requested. The judge denied the request. Counsel failed to object to preserve the issue for appeal.

II. Sentence imposed is disproportionate to offense.

A. There was no evidence shown by the prosecutor that Applicant intentionally caused the death of the victim.

III. Malicious prosecution.

A. The prosecutor did not try the case in a professional manner.

B. The prosecutor allowed personal prejudice to become his motive.

C. The prosecutor ignored evidence which pointed to a possible third party being involved.

D. The prosecutor built his case around theory and conjecture.

(Smith's § 2255 petition at 2-9.)

On January 19, 2006, Respondents filed a motion for summary judgment, asserting that Smith's first ground has been fully exhausted and that Smith's second and third grounds have been abandoned. On February 14, 2006, Petitioner filed a crossmotion for summary judgment and a memorandum in opposition to Respondents' motion. A Magistrate Judge filed an R & R on March 14, 2006, recommending that this court grant Respondents' motion for summary judgment.

STANDARD OF REVIEW

This court is charged with conducting a de novo review of any portion of the R & R to which a specific objection is registered and may accept, reject, or modify, in whole or in part, the recommendations contained in that R & R. 28 U.S.C. § 636(b)(1). After a review of the entire record, the R & R, and Petitioner's objections, the court finds that the Magistrate Judge fairly and accurately summarized the facts and applied the correct principles of law. Accordingly, the court adopts the R & R in whole and incorporates it by specific reference into this Order.

DISCUSSION

In the R & R, the Magistrate Judge concluded that the court should deny ground one of Smith's § 2254 petition on the merits and that the court cannot reach grounds two and three because they were procedurally abandoned at the post-conviction relief level.

I. Ground One: Trial counsel was ineffective in not preserving for direct appeal the trial court's denial of an involuntary manslaughter charge.

In Smith v. State of South Carolina, Memo. Op. No.2005-MO-031 (June 20, 2005), the Supreme Court reversed the circuit court's grant of post-conviction relief, pursuant to SCACR 220(b)(1) and the following authorities: State v. Cabrera— Pena, 361 S.C. 372, 605 S.E.2d 522 (2004) (finding that defendant is not entitled to a charge on involuntary manslaughter where no evidence exists to support the charge); State v. Atkins, 293 S.C. 294, 299, 360 S.E.2d 302, 305 (1987), overruled on other grounds in State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (stating that lesser included offense instruction is required only when the evidence warrants such an instruction); and Pierce v. State, 338 S.C. 139, 144, 526 S.E.2d 222, 225 (2000) (stating that the court will reverse if no probative evidence exists to support the findings of the PCR judge). See Smith v. State of South Carolina, Memo. Op. No.2005-MO-031 (June 20, 2005). Essentially, the Supreme Court concluded that no evidence existed to support a charge of involuntary manslaughter, and therefore, Petitioner was not entitled to such a charge. Accordingly, Petitioner's trial counsel was not ineffective for failing to preserve for appeal the trial court's denial of an involuntary manslaughter charge. In addition, the jury convicted Petitioner of murder rather than voluntary manslaughter, which the judge did charge to the jury, so Petitioner cannot claim that his counsel's failure to preserve for appeal the trial court's denial of the involuntary manslaughter charge actually prejudiced him.

Pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a meritorious ineffective assistance claim must demonstrate two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Id. at 687-98, 104 S.Ct. 2052. Here, Petitioner cannot satisfy either prong in Strickland, and therefore, Petitioner is not entitled to habeas corpus relief with respect to this issue.

II. Grounds Two and Three: Sentence imposed is disproportionate to offense; Malicious Prosecution.

Petitioner raised both Grounds Two and Three in his state post-conviction relief application. (App. II at 288-89.) However, Petitioner proceeded only on Ground One, namely, that counsel was ineffective for failing to preserve for appeal the trial court's denial of a charge on involuntary manslaughter. (App. II at 301-26.) In South Carolina, Petitioner's failure to pursue the remaining claims at the PCR hearing constitutes abandonment of the claims, and the claims are thereafter procedurally barred. See Plyler v. State, 309 S.C. 408, 424 S.E.2d 477 (1992) (finding an issue that was neither raised at the PCR hearing nor ruled upon by the PCR court procedurally barred); S.C.Code Ann § 17-27-80. Accordingly, as the R & R concluded, this court is procedurally barred from considering grounds two and three of Smith's § 2254 petition.

III. Petitioner's Objections

Pursuant to 28 U.S.C. § 636, a party may object within ten days after being served with a copy of the R & R. Any written objection must specifically identify the portions of the R & R to which objections are made and the basis for those objections. In the present case, Petitioner's objections merely rehash arguments previously made and rejected, and nowhere does Petitioner specifically object to any portion(s) of the R & R. On the whole, therefore, Petitioner's objections are without merit and warrant no further consideration by the court. See, e.g., Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992) ("It is improper for an objecting party to attempt to relitigate the entire content of the hearing before the Magistrate Judge by submitting papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge.").

CONCLUSION

It is therefore, ORDERED, for the foregoing reasons, that Respondent's motion for summary judgment is GRANTED, and Petitioner Smith's motion for summary judgment is DENIED.

AND...