Whelchel v. Bazzle
| Decision Date | 18 December 2006 |
| Docket Number | C.A. No. 2:04-2061-23AJ. |
| Citation | 489 F.Supp.2d 523 |
| Parties | Richard F. WHELCHEL, II, Petitioner, v. E. Richard BAZZLE, Warden of Perry Correctional Institution; and Henry McMaster, Attorney General of South Carolina, Respondents. |
| Court | U.S. District Court — District of South Carolina |
Howard Stanley Feldman, Charleston, SC, for Petitioner.
Melody Jane Brown, SC Attorney General's Office, Columbia, SC, for Respondents.
This matter is before the court upon Petitioner Richard F. Whelchel, II's ("Petitioner" or "Whelchel") petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. The Record contains a Report and Recommendation ("R & R") of a United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1)(B). The magistrate judge's R & R recommends that respondents' motion for summary judgment be granted. A party may object, in writing, to an R & R within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). On September 14, 2006, Whelchel, through his counsel, filed timely objections to the R & R.
Petitioner Whelchel is presently incarcerated in the Perry Correctional Institution of the South Carolina Department of Corrections. He was indicted by a grand jury in June of 1991 for murder and in September of 1991 for armed robbery. R. Scott Davis, Esquire, represented Whelchel in his jury trial held November 19-21, 1991, in the Cherokee County General Sessions Court before the Honorable James B. Stephen. The jury convicted Whelchel as charged, and the judge sentenced Whelchel to life imprisonment for murder and to twenty-five years, concurrent, for armed robbery.
Whelchel appealed, and Lesley M. Coggiola, Assistant Appellate Defender of the South Carolina Office of Appellate Defense, represented Whelchel on appeal. Through his appellate counsel, Whelchel raised only one issue: whether the solicitor's use of peremptory challenges violated the Equal Protection Clause and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). (App. p. 827). The Supreme Court of South Carolina affirmed the convictions on August 5, 1993. State v. Whelchel, Memorandum Opinion No. 93-MO-247 (S.C.Sup.Ct. filed August 5, 1993).
Petitioner then filed an application for post-conviction relief (PCR) on September 5, 1996, alleging three grounds for relief: (1) ineffective assistance of counsel, (2) error in admission of evidence, and (3) after-discovered evidence. An evidentiary hearing convened on July 23, 2001, at which the Honorable Donald W. Beatty presided. William Rhoden, Esquire, represented Petitioner in this endeavor and defined the issues to be presented as follows: (1) ineffective assistance of counsel and (2) ineffective assistance of appellate counsel. (App. p. 570, lines 10-15).
At the conclusion of the hearing, Judge Beatty took the case under advisement. (App. p. 682, lines 4-7). On October 11, 2001, Judge Beatty ordered a new evidentiary hearing because the formal order requested by the court had not been received as of that date. (App. p. 823). A second evidentiary hearing was convened on July 31, 2002, at which the transcript from the first hearing was made part of the record and Petitioner was allowed to supplement the record. (App. p. 634, line 3 — p. 639, line 5). Counsel noted that Petitioner had filed several amendments to the PCR application on his own, and the PCR judge rejected those amendments as a violation of state law prohibiting hybrid representation. (App. p. 637, lines 4-13). However, Petitioner and his counsel noted that these attempted amendments all pertained to the ineffective assistance of counsel allegations and thus did not raise any new issues. (App. p. 637, line 14 — App. p. 638, line 3). On January 2, 2003, Judge Beatty issued a written order of dismissal. (App. p. 715). The order defined the issues raised to, and ruled upon by the PCR judge, as follows:
1. Allegation of ineffective assistance of trial counsel for the failure to procure the Applicant's former wife's tape recorded statement/failure to ... request to be relieved so he could be a witness;
2. Allegation of ineffective assistance of counsel for the failure to address the Applicant's former wife ['s] recantation of her trial testimony;
3. Allegation of ineffective assistance of counsel for the failure to call witnesses to attack the credibility of the Applicant's former wife's drug abuse;
4. Allegation of ineffective assistance of counsel for the failure to object to the diagram being introduced 5. Allegation of ineffective assistance of counsel for advising the Applicant not to testify;
6. Allegation of ineffective assistance of appellate counsel for the failure to raise certain issues.
(App. pp. 709-713). (See also App. p. 640, line 8 — p. 648, line 12).
Whelchel filed a timely notice of intent to appeal the denial of PCR. On June 10, 2003, Wanda H. Haile, Senior Assistant of the South Carolina Office of Appellate Defense, moved in the Supreme Court of South Carolina for an appointment of outside counsel since Whelchel had alleged a claim of ineffective assistance of appellate counsel against a former attorney for the Office of Appellate Defense. On June 26, 2003, the Supreme Court granted the motion and appointed William G. Rhoden, Esquire, as appellate counsel. Both Rhoden and Whelchel moved to have substitute counsel appointed, but on August 6, 2003, the Court denied both motions. On August 29, 2003, Rhoden filed a Petition for Writ of Certiorari and raised the following issues:
1. Trial counsel was ineffective for failing to preserve the issue of premature jury deliberations;
2. Trial counsel was ineffective for failure to preserve evidence and failing to offer himself as a witness;
3. Trial counsel was ineffective for failing to call witnesses and produce evidence to refute the credibility of the state's key witness, Clarissa Whelchel;
4. The Petitioner was denied effective assistance of appellate counsel.
(Cert.petition, pp. 8-11). The Supreme Court of South Carolina issued a summary order on May 13, 2004, which denied the petition.
To grant a motion for summary judgment, this court must find that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The judge 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 nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990).
This court is charged with conducting a de novo review of any portion of the magistrate judge's 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). After a review of the entire record, the R & R, and Petitioner's objections, the court finds that the magistrate judge fairly and accurately summarized the facts and applied the correct principles of law. However, this court finds that the Petitioner's claim of ineffective assistance of counsel regarding counsel's conflict of interest is exhausted and thus ripe for review. Accordingly, the court adopts the R & R in part, and modifies it as set forth by this Order.
It is well settled that a petitioner must first exhaust state court remedies before seeking a writ of habeas corpus under 28 U.S.C. § 2254. See Breard v. Greene, 523 U.S. 371, 375, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) ( ; see also 28 U.S.C. § 2254(b)-(c). To satisfy this exhaustion requirement, "a habeas petitioner must fairly present his claim to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.1997).1 Furthermore, a habeas petitioner must exhaust all post-conviction relief (PCR) remedies, meaning the petitioner must file a PCR application, an order adjudicating the issues must be rendered, and the petitioner must either petition or knowingly waive appellate review. See Gibson v. State, 329 S.C. 37, 42, 495 S.E.2d 426, 428 (1998).
With respect to those claims that were adjudicated by the state court on their merits, habeas relief is warranted only if a petitioner can demonstrate that the adjudication of his claims by the state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained that § 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. Id. at...
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