Stewart v. Warden Of Lieber Corr. Inst., Civil Action No. 8:09-842-SB.

• Decision Date: 29 March 2010
• Docket Number: Civil Action No. 8:09-842-SB.
• Court: U.S. District Court — District of South Carolina
• Parties: Weldon W. STEWART, Jr., Petitioner,v.WARDEN OF LIEBER CORRECTIONAL INSTITUTION, Respondent.

701 F.Supp.2d 785

Weldon W. STEWART, Jr., Petitioner,v.WARDEN OF LIEBER CORRECTIONAL INSTITUTION, Respondent.

Civil Action No. 8:09-842-SB.

United States District Court,

D. South Carolina,

Charleston Division.

March 29, 2010.

COPYRIGHT MATERIAL OMITTED

Weldon W. Stewart, Jr., McCormick, SC, pro se.

Donald John Zelenka, Samuel Creighton Waters, SC Attorney General's Office, Columbia, SC, for Respondent.

ORDER

SOL BLATT, JR., Senior District Judge.

This matter is before the Court upon Petitioner Weldon Stewart, Jr.'s pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ The record contains the report and recommendation (“R & R”) of a United States Magistrate Judge, which was made in accordance with 28 U.S.C. § 636(b)(1) and the local rules of this district. The Petitioner filed timely objections to the R & R, and the matter is ripe for review. See 28 U.S.C. § 636(b)(1) (providing that a party may object, in writing, to an R & R within fourteen days after being served with a copy of that report).

BACKGROUND

The Petitioner is incarcerated at the McCormick Correctional Institution pursuant to orders of commitment of the Marlboro County Clerk of Court. In October of 2002, the Marlboro County Grand Jury indicted the Petitioner, who was 19 at the time of the underlying incident, for the murder of his 15 year-old girlfriend and the desecration of her remains. The Petitioner pleaded guilty to desecration of human remains but proceeded to trial on the murder charge before the Honorable Paul M. Burch from July 28 to August 1, 2003. At trial, the Petitioner represented himself with public defender Wade R. Crow acting as standby counsel. On August 1, 2003, the jury convicted the Petitioner of the lesser-included offense of voluntary manslaughter, and Judge Burch sentenced him to thirty years of imprisonment for voluntary manslaughter and nine years of imprisonment for the desecration of human remains, to be served consecutively.

The Petitioner filed a timely appeal, and acting Chief Appellate Defender Joseph L. Savitz, III, represented the Petitioner on appeal. On October 21, 2004, Savitz filed with the South Carolina Court of Appeals a petition to be relieved as counsel and an Anders brief, raising the following issue: “The judge erred by refusing to instruct the jury on involuntary manslaughter.” (Entry 15-2 at 223.) Despite being granted an extension of time, the Petitioner did not timely submit a pro se brief, and on April 20, 2005, the court dismissed the Petitioner's appeal in an unpublished opinion. State v. Stewart, No. 05-UP-284 (S.C.Ct.App.2005); (Entry 15-2 at 231). The court sent down the remittitur on May 23, 2005.

On April 18, 2006, the Petitioner filed an application for post-conviction relief (“PCR”), alleging that his appellate counsel was ineffective. (Entry 15-2 at 234.) The Honorable John M. Milling held an evidentiary hearing on November 15, 2006. The Petitioner appeared with counsel, Delton W. Powers, Jr., and testified. On January 8, 2007, Judge Milling issued an order denying the PCR application and dismissing it with prejudice. (Entry 15-2 at 278-87.) The Petitioner timely filed a notice of appeal.

Assistant Appellate Defender Katherine H. Hudgins of the South Carolina Office of Appellate Defense represented the Petitioner on his PCR appeal. On October 25, 2007, Hudgins filed a petition to be relieved as counsel and a Johnson petition for a writ of certiorari raising the following issue: “Did the PCR judge err in refusing to find appellate counsel ineffective for failing to argue that the trial judge erred in admitting two unauthorized documents into evidence?” (Entry 15-6 at 3.) On March 13, 2008, the Petitioner filed a pro se response to the Johnson petition, raising the following issues:

Did the PCR court err in failing to find appellate counsel ineffective for failing to argue the trial judge erred in giving a jury instruction on voluntary manslaughter?

Did the PCR court err in failing to find appellate counsel ineffective for failing to argue that trial judge erred in admitting a photograph of the decedent's body into evidence?

Did the PCR court err in failing to find appellate counsel ineffective for failing to argue that the trial judge erred in allowing Stanton Wright to provide hearsay testimony?

(Entry 15-7 at 3, 8, and 14.)

On June 23, 2008, the Petitioner filed a supplemental pro se response in which he further discussed the voluntary manslaughter issue. On March 18, 2009, the South Carolina Supreme Court denied the petition and granted counsel's motion to be relieved; the court sent down the remittitur on April 3, 2009.

The Petitioner filed the instant § 2254 petition on March 31, 2009, raising the following grounds, quoted verbatim:

Ground One: Did the trial court deprive me of my constitutional right to due process by failing to instruct the jury on involuntary manslaughter?

Supporting facts: The trial court failed to instruct the jury on the requested jury instruction on involuntary manslaughter. There was evidence presented during the trial which supported the jury instruction and the trial court's failure to instruct the jury on this instruction deprived me of a fair trial.

Ground Two: Did appellate counsel deprive me of my constitutional right to effective assistance of counsel?

Supporting Facts: Appellate counsel was ineffective for failing to argue on my appeal: 1) the trial judge erred by charging the jury on voluntary manslaughter when there was no evidence to support the charge, 2) the trial judge admitted two documents that were not authenticated, 3) the trial judge admitted photographs that were irrelevant and prejudicial, and 4) the trial judge allowed hearsay testimony.

(Entry 1 at 5-7.)

On July 13, 2009, the Respondent filed a motion for summary judgment. The Magistrate Judge issued an order on July 15, 2009, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the summary judgment procedure and the possible consequences of failing to adequately respond to the motion. On September 17, 2009, the Petitioner filed a response in opposition to the Respondent's motion. On December 10, 2009, 2009 WL 6322405, the Magistrate Judge issued an R & R, recommending that the Court grant the Respondent's motion for summary judgment. The Petitioner filed written objections to the R & R on December 28, 2009.

STANDARDS OF REVIEW

I. Legal Standard for Summary Judgment

To grant a motion for summary judgment, the Court must find that “there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c). The court is not to weigh the evidence, but rather to determine if there is a genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no material factual disputes remain, then summary judgment should be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All evidence should be viewed in the light most favorable to the non-moving party. See Perini Corp. v. Perini Constr. Inc., 915 F.2d 121, 123-24 (4th Cir.1990).

II. The Magistrate Judge's R & R

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). Any written objection must specifically identify the portion of the R & R to which the objection is made and the basis for the objection. Id.

DISCUSSION

I. Exhaustion of Remedies Pursuant to 28 U.S.C. § 2254

Relief under § 2254 may be had only after a habeas petitioner has exhausted his state court remedies. “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.1997) cert. denied, 522 U.S. 833, 118 S.Ct. 102, 139 L.Ed.2d 57 (1997). Stated plainly, in the interest of giving state courts the first opportunity to consider alleged constitutional errors in state proceedings, a § 2254 petitioner is required to “exhaust” all state remedies before a federal district court can entertain his claims. Thus, a federal habeas court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.

To exhaust a claim in state court, a person in custody has two primary means of attacking his conviction: filing a direct appeal and/or filing an application for relief under the South Carolina Post Conviction Procedure Act, S.C.Code Ann. §§ 17-27-10-160. “[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.” In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (1990).

II. Procedural Default

When a federal habeas petitioner has failed to raise a claim at the appropriate time in state court and has no further means of bringing that issue before the state courts, the claim will be considered procedurally defaulted, and he will be procedurally barred from raising the issue in his federal habeas petition. Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Procedural default can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion.

III. Relationship Between Exhaustion and Procedural Default

If a federal habeas petitioner has procedurally defaulted his opportunity for relief in the state courts, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews, 105 F.3d 907 (citing Coleman v. Thompson, ...