Williams v. Riley

• Decision Date: 14 July 2016
• Docket Number: Civil Action No. 6:15-3236-TMC-KFM
• Parties: Derrick F. Williams, Petitioner, v. Warden Tim Riley, Respondent.
• Court: U.S. District Court — District of South Carolina

Derrick F. Williams, Petitioner, v. Warden Tim Riley, Respondent.

Civil Action No. 6:15-3236-TMC-KFM

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

July 14, 2016

REPORT OF MAGISTRATE JUDGE

The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2254.

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

BACKGROUND

The petitioner is currently incarcerated at Tyger River Correctional Institution in the South Carolina Department of Corrections ("SCDC"). The petitioner was indicted by the Anderson County Grand Jury in April 2008 for trafficking in cocaine 200 grams or more but less than 400 grams (2008-GS-0895) and possession of a weapon during the commission of a violent crime (2008-GS-04-0896).¹ Druanne White and Sarah Drawdy represented the petitioner on the charges.

On October 16, 2008, the petitioner pled guilty before the Honorable J. Cordell Maddox, Jr., Circuit Court Judge, to the lesser included offense of trafficking in cocaine greater than 28 grams but less than 100 grams² and possession of a weapon during the commission of a violent crime. Judge Maddox accepted the negotiated plea, and the petitioner was sentenced to 12 years confinement on the trafficking charge and five years, concurrent, on the weapon charge. The petitioner had previously been convicted in North Carolina of assault, inflicting serious injury, and resisting arrest. The petitioner did not file a direct appeal.

Underlying Case Facts

On January 29, 2008, at 1:00 a.m., the petitioner was stopped for speeding on Interstate 85 ("I-85") by an Anderson County Deputy Sheriff (Deputy Moore). The petitioner was traveling north from Georgia into South Carolina. After the officer activated his blue lights, the petitioner continued to travel on I-85 for approximately one quarter of a mile [15 to 20 seconds on the car video of the stop]. The petitioner then pulled over in the emergency lane and continued to travel for approximately ten to 15 seconds before stopping his vehicle. The petitioner had a North Carolina driver's license and was driving a one day rental car. Another deputy (Deputy Crawford) was called to the traffic stop, and while the officer who stopped the petitioner was writing the petitioner a ticket, the second officer had a drug dog circle the petitioner's vehicle. The drug dog positively indicated on the petitioner's vehicle. The subsequent search of the vehicle resulted in the discovery of 242 grams of cocaine in a vacuum sealed bag in the engine compartment of the rental car. Officers found a black leather bag containing a loaded 9mm pistol in the trunk. The petitioner also had $776.00 in cash that was located underneath the driver's side front floor mat. Officers also seized a vacuum sealer and scales from inside the car. The petitioner pled guilty and admitted at his guilty plea that he was guilty of both trafficking in cocainegreater than 28 grams and possession of a weapon during the commission of a violent crime (app. 1-6, 46).

First PCR

The petitioner filed an application for post-conviction relief ("PCR") on August 12, 2009 (Civil Action #2009-CP-04-3074). In his application he raised the following claim:

1. Ineffective assistance of counsel;

a. Coerced by counsel to not file appeal, after seeking for appeal after incarceration and being told applicant would receive the max sentence if he invoked.

(App. 33). The respondent made a return on December 15, 2009. An evidentiary hearing was held on March 6, 2012, at the Anderson County Courthouse before the Honorable R. Lawton McIntosh, Circuit Court Judge ("the PCR court"). The petitioner was present at the hearing and was represented by Christopher Brumback and Edward C. Nix. Mr. Brumback agreed with the respondent's statement of the following PCR issues:

Failure to file an appeal, involuntary guilty plea, a number of ineffective assistance of counsel, failure to investigate, newly discovered evidence, lack of subject matter jurisdiction, failure to quash indictment and a conflict of interest claim.

(App. 39). The respondent was represented by Kaelon E. May of the South Carolina Attorney General's Office. At the hearing, the petitioner testified in his own behalf. He stated that his attorney was ineffective because she failed to (1) advise him that she had not received drug dog certification records; (2) properly advise him there was a missing link in the chain of custody; (3) advise him he was illegally searched; (4) advise him that the indictments failed to infer subject matter jurisdiction; (5) advise him about his appeal rights; (6) investigate sheriff's deputies and (7) appear at his plea hearing (app. 47-48). The State offered the testimony of Druanne White, the petitioner's plea counsel, and Sarah Drawdy, the attorney who stood in for Ms. White at the petitioner's plea hearing. The PCR court also had before it the records of the Anderson County Clerk of Court regarding thepetitioner's conviction and sentence, the transcript of the proceedings against the petitioner, and the petitioner's records from the SCDC. In an order of dismissal filed May 24, 2012, the PCR court denied and dismissed the PCR application with prejudice (app. 138-52). The petitioner's PCR counsel did not file a Rule 59, SCRCP, motion to alter or amend the order of dismissal. The petitioner attempted to file a pro se Rule 59 motion; however that pro se motion was improper under South Carolina law and was rejected.³

PCR Appeal

The petitioner appealed the denial of his PCR application to the South Carolina Supreme Court by way of a Johnson petition for writ of certiorari (doc. 41-4). The petitioner was represented in the PCR appeal by Wanda H. Carter, Deputy Appellate Defender, of the S.C. Office of Appellate Defense. In the Johnson petition, Ms. Carter raised the following issue to the South Carolina Supreme Court:

The PCR judge erred in denying petitioner's allegation that he did not voluntarily waive his right to a direct appeal in the case.

(doc. 41-4 at 3). Collateral appellate counsel certified to the South Carolina Supreme Court that the appeal was without merit and asked to be relieved as counsel (id. at 7). The petitioner filed a pro se response to the Johnson petition (doc. 41-5). In the pro se response, the petitioner raised the following issues:

1. The PCR Judge erred in denying Petitioner's allegation that trial counsel failed to discover the non-existence of K-9 certification records.

2. The PCR Judge erred in denying petitioner's allegation that trial counsel's misrepresentations to petitioner created a conflict of interest.

(Doc. 41-5 at 2, 4). The appeal was transferred to the South Carolina Court of Appeals. On July 17, 2015, the South Carolina Court of Appeals denied the petition and granted counsel's request to withdraw (doc. 41-6). The remittitur was issued on August 11, 2015 (doc. 41-7).

Second and Third PCRs

The petitioner filed a second PCR application on March 26, 2013 (Civil Action No. 2013-CP-04-0661). The respondent made its return, requesting the application be summarily dismissed for failure to comply with the South Carolina statute of limitations for PCR actions and because the action was improperly successive under South Carolina law. The petitioner filed a third PCR action on December 20, 2013 (Civil Action No. 2013-CP-04-2766). The respondent moved to consolidate the two PCR actions. On May 12, 2014, the second PCR court issued an order consolidating the PCR actions into one action (Civil Action No. 2013-CP-04-0661) and treating the third PCR application as an amendment to the second PCR application (doc. 41-11). On November 20, 2014, the Honorable R. Lawton McIntosh, Circuit Court Judge ("the second PCR court") filed a conditional order of dismissal, finding the consolidated PCR application should be denied and dismissed with prejudice for failure to comply with the state statute of limitations, for being improperly successive, and barred by res judicata (doc. 41-13). The petitioner was given 20 days from the date of service of the order to show why the order should not become final (id. at 10). The conditional order of dismissal was served upon the petitioner on July 13, 2015 (doc. 41-14). On July 28, 2015, the petitioner filed a notice of appeal of Judge McIntosh's conditional order of dismissal (doc. 41-15).

Fourth PCR

The petitioner filed a fourth PCR application on October 6, 2015, with the Anderson County Clerk of Court (Civil Action No. 2015-CP-04-02296) (doc. 41-16). The respondent states that the fourth PCR application was merged with the second and thirdapplications (doc. 59 at 18). On February 25, 2016, the petitioner sent a letter to the Anderson County Clerk of Court stating that he was "dropping" his second, third, and fourth PCR applications "to do away with all unexhausted claims as they relate to [the instant] federal habeas petition" (doc. 49). The petitioner filed the letter in this court on February 29, 2016 (id.). The respondent states that the petitioner's second, third, and fourth PCR actions were dismissed⁴ pursuant to Rule 41, SCRCP (doc. 59 at 18). Accordingly, the petitioner no longer has any PCR actions pending in state court.

FEDERAL PETITION

On August 18, 2015, the petitioner filed his Section 2254 petition (doc. 1). After being granted three extensions of time, the respondent filed a motion for summary judgment (doc. 40) and a return and memorandum on February 16, 2016 (doc. 41). By order filed the same date, pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4^th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion (doc. 42)....