Thompson v. McFadden, C/A No. 5:15-cv-01568-TMC-KDW

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtKaymani D. West United States Magistrate Judge
Decision Date08 April 2016
PartiesBranson Jamal Thompson, #326685, Petitioner, v. Joseph McFadden, Respondent.
Docket NumberC/A No. 5:15-cv-01568-TMC-KDW

Branson Jamal Thompson, #326685, Petitioner,
v.
Joseph McFadden, Respondent.

C/A No. 5:15-cv-01568-TMC-KDW

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

April 8, 2016


REPORT AND RECOMMENDATION

Branson Jamal Thompson ("Petitioner"), a state prisoner, filed this pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), for a Report and Recommendation ("Report") on Respondent's Motion for Summary Judgment and Return. ECF Nos. 28. 29, and Petitioner's Motion for Summary Judgment. ECF No. 44. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 30. Petitioner filed both a Motion for Summary Judgment and a Response in opposition to Respondent's Motion. ECF No. 45. Respondent did not file a reply to Petitioner's Response. Respondent's Return relative to Petitioner's Ground Three adequately addresses the matters raised in Petitioner's Motion for Summary Judgment. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment be granted and that Petitioner's Motion for Summary Judgment be denied.

I. Procedural History

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Petitioner is currently incarcerated at Lieber Correctional Institution, part of the South Carolina Department of Corrections prison system. Pet. 1, ECF No. 1. Petitioner was charged in Cherokee County with first-degree burglary, criminal domestic violence of a high and aggravated nature, and two counts of pointing and presenting a firearm resulting from an incident that occurred on May 8, 2009. App. 111-18.1 On December 6, 2010, Petitioner, represented by Cherokee County Public Defender Don Thompson ("plea counsel"), appeared in Cherokee County General Sessions Court before Honorable Judge J. Mark Hayes ("plea judge") to enter a guilty plea to each of the charged crimes. The State was represented at the plea hearing by Attorney Michael Morin, an Assistant Solicitor, who informed the plea judge that the State had agreed to the plea and a negotiated 20-year sentence on the first-degree burglary conviction and concurrent sentences on the remaining convictions. App. 4. Upon questioning by the plea judge, Petitioner answered affirmatively when he was asked if his plea was being made "freely and voluntarily" and he denied that anyone had "threatened or promised [him] anything." App. 6. Petitioner told the plea judge that he was twenty-two-years old, that he understood the trial-related rights he was giving up by pleading guilty, and that he was satisfied with plea counsel's representation. App. 5-7.

After hearing from the State regarding the facts of the underlying charges and Petitioner's prior criminal record, plea counsel informed the plea judge that Petitioner contested one of the prior convictions mentioned by the State. Petitioner told the judge that what the State had said about the facts was only partially correct, specifically referring only to the prior third-degree

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burglary conviction, which he denied having. He responded affirmatively when the plea judge said, "[s]o you believe that the solicitor is substantially correct in what he stated, even though you may disagree with some of the details of it?" App. 8-10. The plea judge then asked Petitioner if he understood the maximum sentences for the charges to which he was pleading guilty and that the domestic violence and burglary charges were considered "violent" offenses and that the burglary charge was also considered "a most-serious offense." Petitioner answered all questions about his understanding of the sentencing consequences of the plea affirmatively. App. 11. Petitioner also stated that he had been able to talk to plea counsel about the sentencing consequences of violent and most-serious crimes and told the plea judge that he was "in fact" guilty of all the charges to which he was pleading guilty. He also stated that all of his answers during the plea colloquy were truthful. App. 12. Following argument from plea counsel, including a statement to the effect that plea counsel had advised Petitioner not to take the negotiated plea but, instead, to plead "straight up" and testimony that Petitioner clearly understood that the negotiated sentence would have to be served without the possibility of parole and after a statement from Petitioner, App. 13-17, the plea court accepted the plea and imposed the negotiated 20-year sentence on the first-degree burglary conviction and concurrent ten-year and five-year sentences on the other three convictions, App. 17. Petitioner did not file a direct appeal.

Petitioner filed a post-conviction relief ("PCR") application on May 23, 2011, raising no grounds for relief, but requesting the right to amend the application. App. 19-26. Petitioner, through Attorney David C. Alford ("PCR counsel"), filed an amended application on January 17, 2013, raising the following grounds for relief:

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As to Ineffective Assistance of Counsel:

a. Failure to advise as to right to an appeal.

b. Failure to advise that a jury trial could have considered a lesser charge to the Burglary First Degree, and absent this advice from his trial lawyer entered into the negotiated plea.

c. Failure to explain that aggravating circumstances as an element is duplicative of intent element, and not challenging the State'[s] duplicative reliance on the same of facts to prove different elements and charges..

d. Failure to advise that the negotiated Plea for 20 years also included community supervision requirements. Jackson v State holds that CSP disclosure is not required of trial counsel. However, when considered in conjunction with (b), the totality of the circumstance resulted in an uninformed basis for plea negotiation..

e. Failure to review and explain Rule 5 discovery, investigate potential state witnesses or other possible witnesses, alternate defenses, and elements of the charges prejudiced Petitioner by having inadequate information for electing the negotiated plea.

f. Failure to raise consent for entry as a defense, or to investigate potential witnesses.

g. Failure to investigate whether any State's witness was subject to intimidation.

h. Failure to conduct a mental evaluation as to petitioner's mental condition, i.e. hearing voices, delusional thoughts.

As to the Grand Jury,

i. Prosecutor misled the Grand Jury by misstating the crime was at night, and as to prior convictions by Petitioner.

j. African- Americans are systematically excluded from the selection process.

App. 29-30. On January 25, 2013, a second amendment to the PCR application containing the

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identical grounds for relief was filed by PCR counsel. App. 32-33. Thompson v. State, No. 11-CP-11-0324. After the State filed its Return to the PCR application, App. 48-52, an evidentiary hearing was held on June 24, 2013 in Spartanburg, South Carolina before the Honorable Judge R. Lawton Mcintosh ("the PCR court"). PCR counsel represented Petitioner and Assistant Attorney General Suzanne H. White represented the State at the hearing. App. 53. Petitioner and plea counsel testified at the hearing. App. 59-85, 85-93. Following the hearing, the PCR court issued an order of dismissal dated October 31, 2013. App. 100-10. Neither party to this case disputes that the PCR court's order accurately summarizes the testimony provided by the two witnesses at the PCR hearing. Thus, because the relevant portion of that order is quoted verbatim below, it is unnecessary for this court to provide a separate summary of the testimony given at the PCR hearing in this Report. The PCR court's order contains the following findings of fact and conclusions of law:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This Court has had the opportunity to review the record in its entirety and has heard the testimony and arguments presented at the PCR hearing. This Court has further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon their credibility. This Court has weighed the testimony accordingly. Set forth below are the relevant findings of fact and conclusions of law as required by S.C. Code Ann. § 17-27-80 (2003).

Ineffective Assistance of Counsel

The Applicant alleges he received ineffective assistance of counsel. In a PCR action, "[t]he burden of proof is on the applicant to prove his allegations by a preponderance of the evidence." Frasier v State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002)(citing Rule 71.1(e), SCRCP). Where ineffective assistance of counsel is alleged as a ground for relief, the Applicant must prove that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v.

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Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674, 692 (1984); Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985).

The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler, Id. The Applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).

First, the Applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its "reasonableness under professional norms." Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland). Second, counsel's deficient performance must have prejudiced the Applicant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
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