Williams v. Warden, C/A No. 5:15-02106-MGL-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
• Parties: Jimmy Lee Williams, #331836, Petitioner, v. Warden, Lieber Correctional Institution, Respondent.
• Decision Date: 10 March 2016
• Docket Number: C/A No. 5:15-02106-MGL-KDW

Jimmy Lee Williams, #331836, Petitioner,
v.
Warden, Lieber Correctional Institution, Respondent.

C/A No. 5:15-02106-MGL-KDW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

March 10, 2016

REPORT AND RECOMMENDATION

Petitioner Jimmy Lee Williams ("Petitioner"), a state prisoner, filed this pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. 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 ("R&R") on Respondent's Return and Motion for Summary Judgment filed September 4, 2015. ECF Nos. 16, 17. On September 8, 2015, pursuant to Roseboro v. Garrison,¹ the court advised Petitioner to file a Response to Respondent's Summary Judgment Motion if he wished to pursue his case. ECF No. 18. On October 16, 2015, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 24. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 16, be granted.

I. Background

Petitioner is currently incarcerated in the Lieber Correctional Institution of the South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 2005, Petitioner was indicted during the May term of the Horry County Grand Jury for murder (2008-GS-26-1689). ECF No.

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17-1 at 3-4. Petitioner proceeded to a jury trial from November 10, 2008, to November 14, 2008, before the Honorable Edward B. Cottingham, Circuit Court Judge. Id. at 74. Petitioner was represented by Paul Taylor, Esquire, and Assistant Solicitors Lawrence Filiberto and George Henry Debusk represented the State. Id. Petitioner was tried with co-defendant Anthony Quentin Scott who was represented by Charles David Barr. Id. After the trial, the jury found Petitioner guilty of murder, App. 378,² and Judge Cottingham sentenced Petitioner 30-years imprisonment, App. 389.

Joseph L. Savitz, Senior Appellate Defender, represented Petitioner in the appeal of his conviction and sentence. ECF No. 17-2. In his appellate brief, Petitioner raised the following issue:

The trial judge erred by denying Williams's motion for a directed verdict of acquittal, as the State's circumstantial evidence against Williams was too insubstantial to rise above a mere suspicion that he was guilty.

Id. at 4. The State filed a Response Brief on January 8, 2010. ECF No. 17-3. On December 14, 2010, the South Carolina Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished opinion. ECF No. 17-4. On December 30, 2010, the South Carolina Court of Appeals issued a Remittitur. ECF No. 17-5.

II. Procedural History

John Mobley, Esq., represented Petitioner during Post-Conviction Relief ("PCR") proceedings. On December 2, 2011, Petitioner filed an application for PCR and made the following allegations of ineffective assistance of counsel:

a. Failure to request lesser charges of Aiding and Abetting and Accessory After the Fact.

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b. Failure to object to improper character evidence.
c. Failure to object to an improper jury charge on circumstantial evidence charge.
d. Stating in opening statement that Petitioner's defense was self-defense admitting Petitioner's killed the victim, yet presenting no evidence of that self-defense during the trial.

ECF No. 17-1 at 7-9. Assistant Attorney General Tyson Andrew Johnson filed a Return on behalf of the State. ECF No. 17-6. A PCR hearing was held on April 23, 2013, before the Honorable Larry B. Hyman, Jr. ECF No. 17-1 at 19. Petitioner was present and represented by PCR Counsel Mobley, and Attorney Johnson appeared for the State. Id. Petitioner and his trial counsel testified as witnesses during the PCR hearing. App. 3-52. In an Order filed June 17, 2013, the PCR court denied Petitioner's PCR Application in full, finding Petitioner raised the following allegations and making the following findings of fact and conclusions of law:

ALLEGATIONS
Applicant alleged in his Application for PCR that he is being held in custody unlawfully for the following reasons:

1. "Failure to request lesser charges of Aiding and Abetting and Accessory After the Fact."
2. "Failure to object to improper character evidence."
3. "Failure to object to an improper jury charge on circumstantial evidence charge."
4. "Stating in opening statements that Petitioner's defense was self-defense admitting Petitioner's killed the victim, yet presenting no evidence of that self-defense during the trial."

At the opening of the Applicant's case, his counsel advised the Court that Applicant was waiving the first three claims, and that they were only going forward on the fourth claim of "Stating in opening statements that Petitioner's defense was self-defense admitting Petitioner killed the victim, yet presenting no evidence of that self-defense during the trial." Accordingly, all other claims are deemed waived and denied, and the Court will address Applicant's only remaining allegation.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court has had the opportunity to review the record in its entirety and has

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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 (1985).

Ineffective Assistance of Counsel
Applicant alleges his conviction at trial is the result of ineffective assistance of counsel. The burden of proof is on the applicant in a PCR proceeding to prove the allegations in his application. Bell v. State, 321 S.C. 238, 467 S.E.2d 926 (1996); Rule 71.1(e), SCRCP.

For an applicant to be granted PCR as a result of ineffective assistance of counsel, he must show both: (1) that his counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) that he was prejudiced by his counsel's ineffective performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Judge v. State, 321 S.C. 554, 471 S.E.2d 146 (1996).

In order to prove prejudice, an applicant must show that but for counsel's errors, there is a reasonable probability the result at trial would have been different. Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Where trial counsel articulates a valid reason for employing certain trial strategy, such conduct should not be deemed ineffective assistance of counsel. Roseboro v. State, 317 S.C. 292, 454 S.E.2d 312 (1995); Stokes v. State, 308 S.C. 546, 419 S.E.2d 778 (1992).

This Court will now address the allegation of ineffective assistance of counsel:

The defense of self-defense
Applicant alleges that his counsel was ineffective for asserting the defense of "self-defense" without presenting evidence of self defense. Applicant did not testify at trial. At the PCR hearing, Applicant and his trial counsel gave sharply divergent accounts on why Applicant did not testify at trial. Applicant indicated he never intended to testify, whereas trial counsel indicated that Applicant only refused to testify after the State rested its case in chief, surprising counsel. Counsel indicated he was essentially ambushed by a suddenly uncooperative client who expressed that he was terrified of testifying after observing other witnesses testifying. Counsel also indicated that Applicant told him that since in Applicant's opinion the state had failed to prove its case, Applicant felt he didn't need to testify.

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It is clear to this Court that trial counsel unequivocally intended to put up evidence of self-defense in the form of Applicant's trial testimony but Applicant surprised his trial counsel by refusing to testify. Applicant by his refusal to testify created the peril for which he now complains and blames trial counsel for.

In the testimony of counsel, he made a discovery request, reviewed the discovery with Applicant, met with Applicant in the course of counsel's investigation and discovered Applicant had made incriminating statements to others who were potential witnesses for the State.

In the course of his investigation counsel discovered there were witnesses who could likely testify that Applicant received a telephone call, that he argued on the telephone with a person believed to be the deceased victim, that Applicant left and then returned and made additional statements which were incriminating involving the death of the deceased victim. The shell casing found in Applicant's car was a ballistic match with a gun found in the woods behind Applicant's house. Counsel for Applicant also testified "[Applicant] told me he fired the gun."

Faced with overwhelming evidence of guilt against his client, counsel realized a trial strategy of self-defense was best course of action. Counsel indicated he believed Applicant could have been convicted based upon the circumstantial evidence.

The record also supports counsel's version of the Applicant's decision not to testify, and casts a shadow over Applicant's testimony. The trial judge announced that as there was no evidence presented on self-defense (as neither co-defendant testified) that the court would not charge self-defense. Once the trial judge made it abundantly clear to Applicant and counsel that unless there was additional evidence he would not permit a charge on self-defense, he gave Applicant another opportunity to testify or put up other evidence. Therefore, counsel indicated at page 298, Line 9-11 that he would once again ask Applicant if he wished to testify. The trial judge indicated he would still permit Applicant to testify at page 298 lines 19-21. Knowing without his testimony supporting the defense of

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