Wells v. Stevenson, C/A No. 5:15-01652-CMC-KDW

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: Kaymani D. West United States Magistrate Judge
• Docket Number: C/A No. 5:15-01652-CMC-KDW
• Parties: Sean Deron Wells, #335757, Petitioner, v. Michael M. Stevenson, III, Respondent.
• Decision Date: 29 October 2015

Sean Deron Wells, #335757, Petitioner,
v.
Michael M. Stevenson, III, Respondent.

C/A No. 5:15-01652-CMC-KDW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

October 29, 2015

REPORT AND RECOMMENDATION

Sean Deron Wells ("Petitioner") is a state prisoner who filed this pro se petition for a 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) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 10, 11. On June 16, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 12. On July 17, 2015, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 23. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 10, be granted.

I. Background

Petitioner is currently incarcerated in the Broad River Correctional Institution ("BRCI") of the South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 2008, Petitioner

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was indicted at the October term of the York County grand jury for two counts of armed robbery (2008-GS-46-04104, 2008-GS-46-04100) and three counts of kidnapping (2008-GS-46-04103, 2008-GS-46-04102, 2008-GS-46-04101). App. 65-66.¹ Additionally, Petitioner was indicted for first-degree burglary during the November 2008 term (2008-GS-46-02144). During the May 2009 terms of court for the York County grand jury, Petitioner was indicted for first-degree and second-degree burglary (2009-GS-46-04577; 2009-GS-46-02148). App. 77-80. In exchange for Petitioner pleading guilty, the State dismissed several charges and on July 9, 2009, Petitioner pleaded guilty before the Honorable Lee S. Alford to grand larceny; three counts of second-degree burglary, non-violent; two counts of strong armed robbery, and three counts of kidnapping. App. 1-47. During his plea, Attorney William Hancock represented Petitioner, and Assistant Solicitor Dan Hall appeared on behalf of the State. Id. Judge Alford sentenced Petitioner to 10 years imprisonment for the reduced charge of grand larceny; 15 years imprisonment for the reduced charge of second-degree burglary, non-violent; 15 years imprisonment for a reduced charge of strong armed robbery; and 28 years imprisonment for three counts of kidnapping. App. 45-47. Judge Alford instructed that all sentences run concurrently, and Petitioner received credit for time served. Id. Petitioner did not file a direct appeal of his convictions or sentence.

II. Procedural History

Petitioner filed an application for post-conviction relief ("PCR") on June 9, 2010, alleging, verbatim, the following claims for Ineffective Assistance of Counsel:

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1) Failure to advise petitioner that ALL crimes are commercial crimes, Code of Federal Regulations, Title 27. Volume 1, Part 77.11. (SEE ATTACHED APPENDIX "B")
2) Failure to assert request for lesser offense.
3) Failure to file a) Motion for Reconsideration, & b) Direct Appeal as requested by petitioner.
4) Failure to raise validity of Indictments being legally composed.
a) Whom was the forman of the Grand Jury?
b) Was indictment returned in open court my forman of Grand Jury?
c) Are transcripts of the convened Grand Jury for session that indicted petitioner available?
d) Is the certificate of concurrence filed with the Office of the Clerk of Courts?
5) Failure to challenge composition & array of Grand Jury
a) Were the members of the Grand Jury truely my peers in the true sense of the word.
b) Also, failure to counsel petitioner on 4th / 5th /& 6th amendment rights.
6) Failure to obtain grand jury minutes & Applications in which the judge allowed the state to seek a Grand Jury.
7) Failed to present the true nature and cause of accusations. See Appendix "C".
8) Mr Handcock (Petitioners Trial Counsel) misrepresented petitioner, & petitioner believes that Mr. Handcock is guilty of fraudulent concealment. Also, Mr. Handcock violated petitioners due process by presuming that petitioner was guilty, & not investigating his case, a 14th amendment Due Process Violation.

App. 51; 56. The State filed a Return on December 9, 2010. App. 61-64. Thereafter, a hearing convened on October 11, 2011, before the Honorable Paul M. Burch. App. 107-257. Petitioner was present and represented by Attorney Arie D. Bax, and Assistant Attorney General Matthew J. Friedman appeared on behalf of the State. See id. William Hancock, Petitioner's plea counsel, Petitioner's mother Betty Wells, and Petitioner's brother Kevin Wells, also appeared and testified at the hearing. Id. After the hearing, the PCR court denied and dismissed Petitioner's PCR Application with prejudice on February 10, 2012, making the following summaries of evidence and testimony, 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 hearing. This Court has

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further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon his or her 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). Applicant testified that he and his family retained Mr. Hancock as counsel for this case. He testified that he was arrested in July 2008 and first met with counsel in August 2008. He testified that investigator Ronnie Bowers was with counsel, and they all went through the discovery and talked about the charges. Applicant asserted that counsel suggested that Applicant take a 0-30 plea. He testified that Mr. Bowers returned to see him two weeks later, and they discussed the discovery and Applicant told Mr. Bowers about some things that were wrong in the discovery. He asserted that the police reports did not match up with the discovery. Applicant testified that he had witnesses, including his girlfriend Nayla James, who could have been an alibi witness for him but counsel did not contact her. He testified that he did not meet with Mr. Bowers again because Mr. Bowers had a stroke. Applicant testified that he did not see counsel between August 2008 and two days before the plea. He asserted that he called counsel's office two or three times a week, but counsel was never available to speak with him. Applicant testified that he did not know the maximum penalties for the offenses or his right to a jury trial, and he did not discuss the cap of thirty (30) years with counsel. He testified that he and counsel did not discuss potential defenses. Applicant also testified that he and counsel did not discuss the search warrant issues, and if he had known he could have moved to suppress the evidence, then he would have gone to trial. He asserted that he told counsel he was not guilty of the kidnapping charges.

Applicant testified that he did not see the SLED report until after the plea. He contended that he did not have any discussions with counsel about the DNA evidence. He testified that counsel said it would help if Applicant's DNA was not on the glove. Applicant testified that he told the court that he did not kidnap anyone, and the plea court told him to go to trial and "see if he can prove it in a trial." He testified that counsel failed to object to the court's comments. He asserted that counsel told him not to make the plea judge mad. Applicant testified that he wanted to go to trial, but he did not think counsel was prepared for trial. He testified that he asked counsel to file an appeal after the plea and counsel agreed, but Applicant asserted that he never received a direct appeal. Applicant testified that he was on a flight into Charlotte when one of the burglaries occurred and his girlfriend picked him up at the airport. He testified that he gave counsel the contact information for his girlfriend.

Betty Wells, Applicant's mother, testified that she lives in New York. She testified that counsel never contacted her and she did not get enough notice to come down to South Carolina for the plea hearing. She testified that she spoke with investigator Bowers..

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Kevin Wells, Applicant's brother, testified that he lives in New York. He testified that he was not present for the plea hearing because he found out a day a half before the plea that it was going forward. He testified that he spoke with Mr. Bowers, but he never spoke with plea counsel.

Plea counsel testified that Ronald Bowers was his investigator. He testified that Mr. Bowers tried to contact Applicant's girlfriend in Charlotte and was unable to get in touch with her. He testified that he did not hire another investigator after Mr. Bowers had a stroke. Counsel testified that the discovery came in intervals, but he received everything the State received. He asserted that there was nothing exculpatory in the discovery. He testified that the solicitor indicated that Applicant would have been exposed to life without parole (LWOP) if he proceeded to trial. Counsel testified that the solicitor indicated that the first trial would be for the burglary and kidnapping of the 15-year old female victim. He testified that he met with Applicant probably three times prior to April 3, which was the day that the plea offer expired. Counsel testified that he did not discuss a suppression motion with Applicant, but he agreed with the solicitor that any motions would be made on the first day of trial. He asserted that he was prepared to go to trial. Counsel testified that it was Applicant's decision to plead guilty. He testified that he explained to Applicant about fifteen times that if you hold someone against

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