Stoudenmire v. Warden, CIVIL ACTION NO. 9:17-2924-RBH-BM

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtBristow Marchant United States Magistrate Judge
Decision Date03 October 2018
PartiesNORMA STOUDENMIRE, #182302, Petitioner, v. WARDEN, PERRY CORRECTIONAL INSTITUTION, Respondent.
Docket NumberCIVIL ACTION NO. 9:17-2924-RBH-BM

NORMA STOUDENMIRE, #182302, Petitioner,
v.
WARDEN, PERRY CORRECTIONAL INSTITUTION, Respondent.

CIVIL ACTION NO. 9:17-2924-RBH-BM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

October 3, 2018


REPORT AND RECOMMENDATION

Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed pro se on October 25, 2017.1

The Respondent filed a return and motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on May 4, 2018. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on May 7, 2018, advising Petitioner of the importance of a motion for summary judgment and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case.

After receiving two extensions of time to reply, Petitioner filed a memorandum in

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opposition on June 29, 2018, to which Respondent filed a reply on July 6, 2018. This matter is now before the Court for disposition.2

Procedural History

Petitioner was indicted in Spartanburg County in November 2008 for murder [Indictment No. 2008-GS-42-7014]. (R.pp. 749-750). Petitioner was represented by Robert Hall, Esquire, and after a jury trial on March 29-31, 2010, was found guilty as charged. (R.p. 458). Petitioner was then sentenced to life imprisonment. (R.p. 464).

Petitioner filed a timely direct appeal. He was represented on appeal by Robert M. Dudek, of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who raised the following issue:

Whether the court erred by admitting [Petitioner's] statement into evidence where it was undisputed there was physical contact between the interrogating investigator and [Petitioner], where [Petitioner] said he only gave a statement because he was afraid the investigator would hurt him even more, and where it was also undisputed that police intentionally kept [Petitioner's] attorney from being able to see him during the interrogation?

(R.p. 470).

On November 28, 2012, the South Carolina Court of Appeals affirmed Petitioner's conviction and sentence. (R.pp. 518-519). Petitioner then filed a pro se petition for rehearing on January 17, 2013. See Court Docket No. 18-4. On February 22, 2013, the South Carolina Court of Appeals denied the petition for rehearing. See Court Docket No. 18-5. The Remittitur was issued on April 3, 2013 (filed April 11, 2013). (R.p. 520).

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On May 15, 2013 (dated April 15, 2013), Petitioner filed an application for post-conviction relief ("APCR") in state circuit court. Stoudenmire v. State of South Carolina, No. 2013-CP-42-2174. (R.pp. 521-552). The PCR court outlined the issues Petitioner initially3 raised in his APCR as follows:

Ground One: Ineffective Assistance of Trial Counsel, in that;

i. Counsel failed to object to the prosecution's improper introduction of character evidence,

ii. Counsel failed to request a mental evaluation or use mental history as mitigation,

iii. Counsel failed to challenge issue that there was sufficient evidence at trial to establish a reasonable probability that Petitioner was incompetent at time of trial due to Post-Traumatic Stress Disorder,

iv. Counsel failed to address juror that was sleeping during trial,

v. Counsel failed to properly perfect appeal,

vi. Counsel failed to object to irrelevant and improper testimony,

vii. Counsel failed to object to improper introduction of evidence,

viii. Counsel failed to pursue a third-party guilt defense,

ix. Counsel failed to challenge voluntariness of confession,

x. Counsel failed to object to prosecution's argument,

xi. Counsel's prior experience working as prosecutor and magistrate judge indicated a conflict of interest,

xii. Counsel failed to challenge the void indictment,

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xiii. Counsel failed to object to shackling of [Petitioner] at sentencing,

xiv. Counsel failed to obtain DNA expert,

xv. Counsel failed to object to Brady violations,

Ground Two: Ineffective Assistance of Appellate Counsel,

i. Failed to raise the issue of the trial judge abusing his discretion in various rulings,

ii. Failed to challenge the ruling after the attempt to use prior bad act at the suppression hearing,

iii. Closed case and refused to file a motion for rehearing and petition for writ of certiorari,

iv. Failed to challenge prohibition of trying and convicting mentally incompetent defendants,

v. Failed to challenge fact that [Petitioner] was convicted after trial counsel failed to make obvious meritorious objections to tainted evidence,

vi. Failed to challenge the prosecution's introduction of matters in closing that were not properly introduced as evidence during trial,

vii. Failed to challenge the voluntariness of the confession,

viii. Failed to challenge evidentiary sufficiency of the criminal conviction,

Ground Three: Prosecutorial Misconduct, in that;

i. Numerous Brady violations,

Ground Four: Violation of due process, in that;

i. [Petitioner] was denied bond hearing for two years,

ii. Failed to obtain a rights waiver form for February 29, 2008,

iii. Officers failed to warn [Petitioner] of his 5th Amendment rights prior to interrogation,

iv. Fraudulent indictment,

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Ground Five: Abuse of Discretion of trial judge, in that,

i. Failed to address [Petitioner's] known mental illness issues,

ii. Allowed admission of testimony prior bad acts,

iii. Failed to instruct jury regarding voluntariness of confession,

iv. Allowed hearsay evidence to be used and improperly admitted other evidence,

Ground Six: Official misconduct, in that;

i. Officers failed to properly secure possible evidence and test possible evidence.

(R.pp. 703-706).

Petitioner was represented in his APCR by Leah B. Moody, Esquire, and an evidentiary hearing was held on Petitioner's application on January 15, 2015. (R.pp. 594-701). In an order filed June 8, 2015 (dated June 4, 2015), the PCR judge denied Petitioner relief on his APCR. (R.pp. 702-748).

Petitioner filed a timely appeal of the PCR court's order, in which he was represented by Wanda H. Carter, of the South Carolina Commission on Indigent Defense. Petitioner's counsel filed a Johnson4 petition seeking to be relieved as counsel and raising the following issue:

Trial counsel erred in failing to object to over thirty references describing [P]etitioner as a "crack monster," a "crack smoker" and a "crack head" throughout his trial because these negative characterizations prejudiced [P]etitioner's case to the extent that the jury's guilty verdict was more likely based on judgments regarding his drug habits rather than evidence presented at trial.

See Petition for Writ of Certiorari, p. 2 (See Court Docket No. 18-6, p. 3).

The Petitioner also filed his own pro se response on January 11, 2016, raising the following issues:

Ground One: The PCR court erred by not finding trial counsel ineffective for failing

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to conduct a thorough investigation/research, failing to advocate client's cause, and not employing reasonable trial strategies.

Ground Two: The PCR court erred by not finding trial counsel ineffective in making no objections during critical points of trial.

Ground Three: The PCR court erred by not finding trial counsel ineffective in failing to request specific jury instructions on use of prior bad acts, voluntariness of alleged statements, and use of third-party guilt evidence.

Ground Four: The PCR court erred in not finding trial counsel ineffective for failing to present and argue available third-party guilt evidence.

Ground Five: The PCR court erred by not finding trial counsel ineffective for failing to request a competency hearing.

Ground Six: The PCR court erred in failing to allow Petitioner to place on the record documents that would have supported the third-party guilt issues.

Ground Seven: The PCR court erred in not finding his trial counsel ineffective for failing to obtain an independent DNA expert to challenge the state's evidence.

Ground Eight: The PCR court erred in not finding trial counsel ineffective for failing to object to improper character evidence, drug use, anger, violence, firearm use, and inconsistent statement from investigating officers, testimony of state's witnesses, statements referring to Petitioner as a crack monster, and statements that Petitioner excepted responsibility for the death of Gwen Emory.

Ground Nine: The PCR court erred in ruling against Petitioner's argument that officers intentionally kept his attorney from him during the interrogation.

Ground Ten: The PCR court erred in not finding trial counsel ineffective for failing to consult with Petitioner to inform him that he had a statutory right to address the jury in closing, concerning all charges, by failing to properly acquaint himself with the law and facts surrounding the Petitioner's case.

Ground Eleven: The PCR court erred in not finding trial counsel ineffective for failing to request a police report concerning the interview with Capt. Steve Cooper.

Ground Twelve: The PCR court erred in not finding trial counsel ineffective for failing to present to the jury facts that the State had no physical evidence other than the alleged DNA that Petitioner states came from the computer he had been working on and was a secondary transferred source.

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Ground Thirteen: The PCR court erred in not finding trial counsel ineffective for failing to object to prosecutor's egregiously improper closing argument, and failing to make the attempt to counter or lessen the effect in the defense's closing argument.

Ground Fourteen: The PCR court erred in not allowing Petitioner the opportunity to address and present to the Court issues of Due Process that were violated at trial.

Ground Fifteen: The PCR court erred in not finding appellate counsel was ineffective for failing to raise the issue that when evidence of mental impairments is indicated, the fruits of the interrogation must be excluded from use in a criminal
...

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