Spann v. Williams
| Docket Number | C. A. 8:21-cv-00892-JMC-JDA |
| Decision Date | 22 March 2022 |
| Parties | Touriarnold Spann, Petitioner, v. C. Williams, Warden, Respondent. |
| Court | U.S. District Court — District of South Carolina |
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on the parties' cross-motions for summary judgment and default judgment [Docs. 19; 22] Petitioner's motion for evidentiary hearing [Doc. 30] Petitioner's motion to strike and to vacate [Doc. 36] and Petitioner's motion to appoint counsel, for estoppel, and for an evidentiary hearing [Doc. 41]. Petitioner is a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Proceeding pro se and in forma pauperis, Petitioner filed this Petition for writ of habeas corpus on March 23, 2021.[1] [Docs. 1; 1-2.] On July 12, 2021, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 18; 19.] On July 13, 2021, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 20.] On September 13, 2021, the Clerk docketed a response from Petitioner opposing summary judgment, and Respondent filed a reply on September 20, 2021. [Docs. 29; 31.] On October 4, 2021, the Clerk docketed a second response from Petitioner opposing summary judgment, and Respondent filed a reply on October 8, 2021. [Docs. 35; 37.] On October 1, 2021, Respondent filed an additional attachment to its motion for summary judgment and, on October 13, 2021, the Court received a non-standard item in the form of a DVD. [Docs. 34; 39.] On October 25, 2021, Petitioner filed a reply to the non-standard item. [Doc. 42.]
On July 20, 2021, Petitioner filed a motion for default and/or summary judgment. [Doc. 22.] Respondent filed a response in opposition to the motion on August 3, 2021. [Doc. 26.]
On September 13, 2021, Petitioner filed a motion for an evidentiary hearing. [Doc. 30.] Respondent filed a response in opposition to the motion on September 27, 2021. [Doc. 33.]
On October 4, 2021, Petitioner filed a motion to strike and to vacate. [Doc. 36.] On October 12, 2021, Respondent filed a response in opposition to the motion. [Doc. 38.]
On October 25, 2021, Petitioner filed a motion to appoint counsel, for estoppel, and for an evidentiary hearing. [Doc. 41.] Respondent filed a response in opposition to the motion on October 28, 2021. [Doc. 44.]
Finally, on November 10, 2021, the Clerk filed a letter from Petitioner dated November 7, 2021, in which he addresses various issues related to his claims. [Doc. 47.]
The motions are now ripe for review. Having carefully considered the parties' submissions and the record in this case, including the records from the underlying state court actions, the Court recommends that Respondent's motion for summary judgment be granted, that each of Petitioner's motions be denied, and that the Petition be denied and dismissed.
Petitioner is presently confined at the Perry Correctional Institution in the custody of SCDC pursuant to orders of commitment of the Orangeburg County Clerk of Court. [Doc. 18-1 at 100, 103 106, 109, 112.] In July 2014, Petitioner was indicted by the Orangeburg County Grand Jury for one count each of malicious injury to personal property (Indictment No. 2014-GS-38-0799), first degree burglary (Indictment No. 2014-GS-38-0800), possession of a weapon during the commission of a violent offense (Indictment No. 2014-GS-38-0801), impersonating a law enforcement officer (Indictment No. 2014-GS-38-0802), taking a vehicle by force (“carjacking”) (Indictment No. 2014-GS-38-0803), and armed robbery (Indictment No. 2014-GS-38-0804). [Id. at 5, 90-91, 98-99, 101-02, 104-05, 107-08, 110-11.]
Petitioner was represented in the state court on the above charges by Attorney Breen Stevens (“Stevens” or “trial counsel”). [Id. at 5, 90.] On March 23, 2015, Petitioner pled guilty to all six charges. [Id. at 3-28.] That same day, the trial judge sentenced Petitioner, in accordance with a recommendation made by the State, to a term of imprisonment of 30 days for malicious injury to personal property, 30 years for first degree burglary, 5 years for possession of a weapons during the commission of a violent offense, 1 year for impersonating a law enforcement officer, 30 years for carjacking, [2] and 30 years for armed robbery, with all terms to be served concurrently. [Id. at 28.]
Although Petitioner contends he did not file a direct appeal [Doc. 1 at 4], the undersigned notes that a notice of appeal appears to have been filed at Appellate Case Number 2015-000903, but the appeal was dismissed on November 30, 2015, because Petitioner “failed to provide a sufficient explanation as required by Rule 203(d)(1)(B)(iv) of the South Carolina Appellate Court Rules.” [Doc. 18-2.]
On November 30, 2015, Petitioner filed a pro se application for post-conviction relief (“PCR”) in the Orangeburg County Court of Common Pleas alleging numerous grounds for relief. [Doc. 18-1 at 30-36.] On April 1, 2016, the State made its return to the PCR application and requested an evidentiary hearing. [Id. at 37-41.] A hearing was held on May 24, 2017, with Attorney Jonathan D. Waller representing Petitioner. [Id. at 43-87.] The PCR court received testimony from Petitioner and from Stevens. [Id. at 44.] The PCR court denied and dismissed Petitioner's application with prejudice on April 13, 2018, and entered its order of dismissal on April 25, 2018. [Id. at 90-97.]
On Petitioner's behalf, Attorney David Alexander of the South Carolina Commission on Indigent Defense filed a Johnson[3] petition for writ of certiorari in the Supreme Court of South Carolina, dated November 25, 2019. [Doc. 18-3.] The petition asserted the following sole issue for review on appeal:
Whether petitioner's guilty plea was rendered involuntary because plea counsel failed to fully investigate the State's case?
[Id. at 3.] At the same time he filed the Johnson petition, Attorney Alexander submitted a petition to be relieved as counsel. [Id. at 9.] Petitioner then filed a pro se response to the Johnson petition and raised the following issues, which are recited substantially verbatim:
[Doc. 18-4 at 4.] The appeal was transferred to the South Carolina Court of Appeals, which filed an order on December 8, 2020, denying certiorari and granting counsel's request to withdraw. [Docs. 18-5; 18-6.] The remittitur was issued on January 5, 2021. [Doc. 18-7.]
Petitioner filed this Petition for writ of habeas corpus under 28 U.S.C. § 2254 on March 23, 2021. [Doc. 1.] Petitioner asserted the following ground, quoted substantially verbatim:
[Id. at 7.] The Court construes Petitioner's single ground and supporting facts as asserting three separate claims of ineffective assistance of counsel and possibly one claim for a Brady violation as follows.[5] First, Petitioner asserts a claim for ineffective assistance for counsel's failure to investigate the case (“Claim One”). Second, Petitioner asserts a claim for ineffective assistance for counsel's failure to object to an unlawful sentence for carjacking (“Claim Two”). Third, Petitioner asserts a claim for ineffective assistance for counsel's failure to (1) review DVDs containing surveillance footage with Petitioner and (2) review his confession on the burglary charge (“Claim Three”). Finally, Petitioner appears to assert a Brady claim[6] for the State's alleged failure to turn over the DVDs containing surveillance footage (“Claim Four”).
Petitioner's charges and convictions arise from two separate events. The summary below is based on a recitation of the facts by the solicitor at Petitioner's plea hearing.
First the charges of armed robbery, carjacking, impersonating a law enforcement officer, and possession of a weapon during a violent offense all arise from an incident on October 22 2012 (the “carjacking incident”). [Doc. 18-1 at 9.] Officers responded to an armed robbery and carjacking incident that occurred in the town of Eutawville in Orangeburg County. [Id.] The victim, David Smith, stated that, as he was driving through the town, a car came up behind him and turned on flashing lights. [Id.] The victim pulled over because he thought it was a police car. [Id.] The victim stated a black male...
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