Sowell v. McFadden

TODD M. SOWELL, #238581, Petitioner, v. JOSEPH L. MCFADDEN, WARDEN, Respondent.

CIVIL ACTION NO. 9:14-1008-JMC-BM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

October 16, 2014

REPORT AND RECOMMENDATION

Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed pro se on March 19, 2014.

The Respondent filed a return and motion for summary judgment on August 18, 2014. As the Petitioner is proceeding pro se, a Roseboro order was filed on August 21, 2014, advising the Petitioner that he had thirty-four (34) days to file any material in opposition to the motion for summary judgment. Petitioner was specifically advised that if he failed to respond adequately, the motion for summary judgment may be granted, thereby ending his case. On August 22, 2014, Respondent filed an additional attachment, and Petitioner filed a response in opposition on September 24, 2014.

This matter is now before the Court for disposition.¹

Procedural History

Petitioner was indicted in Richland County in June 2005 for burglary in the first degree [Indictment No. 05-GS-40-393]. (R.pp. 335-336). Petitioner was represented by Richland County Public Defenders Maxwell G. Schardt and E. Deon O'Neil. After a jury trial on March 15-16, 2007, Petitioner was found guilty as charged, and was sentenced to twenty (20) years imprisonment. (R.pp. 313, 324, 337).

Petitioner filed a timely appeal on which he was represented by Appellate Defender Robert M. Pachak. Counsel filed an Anders² brief requesting to be relieved and raising the following issue:

Whether the trial court erred in refusing to grant a directed verdict to the charge of first degree burglary when the State failed to prove the appellant entered the dwelling with the intent to commit a crime?

See Brief, p. 3 (Court Docket No. 19-6, p. 4).

Petitioner then filed his own pro se brief raising the following issues:

Ground One: Did the trial court err in failing to find this prosecution is barred by the second protection of the double jeopardy clause?

Ground Two: Did the rulings on evidence allow relevant issues in the case to be heard, that the truth may be ascertained?

Ground Three: Whether the trial court erred in refusing to grant a directed verdict to the charge of first degree burglary when the state failed to prove that appellant entered the dwelling with the intent to commit a crime?

See Final Pro Se Brief, p. 3 (Court Docket No. 19-7, p. 8).

On January 15, 2009, the South Carolina Court of Appeals granted counsel's request to be relieved and denied the appeal in its entirety. See State v. Todd Sowell, 2009-UP-040 (S.C.Ct.App. Jan. 15, 2009)(Court Docket no. 19-8). Petitioner filed a pro se petition for rehearing, which the Court of Appeals denied on March 24, 2009. See Court Docket Nos. 19-9 and 19-10. Petitioner then sent a Petition for Writ of Certiorari to the Supreme Court of South Carolina, which summarily dismissed Petitioner's filing on procedural grounds in an order dated April 6, 2009, citing State v. Lyles, 673 S.E.2d 811, 813 (S.C. 2009)[holding that the Supreme Court of South Carolina will not "entertain petitions for writ of certiorari where the Court of Appeals has dismissed an appeal after conducting an Anders review]. See Court Docket Nos. 19-11 and 19-12. The Court of Appeals thereafter sent the Remittitur to the Richland County Clerk of Court on April 8, 2009. See Court Docket No. 19-13.

On April 14, 2009, Petitioner filed an application for post-conviction relief ("APCR") in state circuit court. See Sowell v. State of South Carolina, No. 2009-CP-4002686. (R.pp. 338-343). The APCR raised the following issues:

Ground One:Double Jeopardy. Appellant was previously tried for the same act in Magistrate['s] Court. S.C. Code Ann. § 17-23-20 completely bars this prosecution, as well as S.C. Const. Art. I, § 12; U.S.C.A. Const. Amend. V;

Ground Two:Ineffective assistance of counsel. Ineffective utilization of discovery procedures, failure to 1. subpoena witness, 2. preserve Speedy Trial violation, 3. Advise of Jackson v. Denno procedure, 4. Assert consent defense, 4. [appellate counsel failed] to raise preserved issues; and

Ground Three:Prosecutorial Misconduct. Unfair or improper remarks about defendant and counsel, reference to previous convictions, presentation of false evidence, [and] material misstatements of law, and fact.

(R.pp. 339-340).

Petitioner was represented in his APCR by Tommy Thomas, Esquire, and an evidentiary hearing was held on Petitioner's application on April 14, 2010. (R.pp. 348-412). In an order filed April 6, 2011, the PCR judge denied relief on the APCR in its entirety. (R.pp. 413-422).

Petitioner next filed a timely appeal of the PCR court's order. See Court Docket No. 19-15. (Case No. 2009-CP-40-02686). Petitioner was represented on appeal by Kathrine Hudgens, Esquire, who raised the following issues:

1. Did the PCR judge [err] in refusing to find counsel ineffective for failing to object to the introduction in evidence of petitioner's conviction for criminal domestic violence and referencing the conviction several times when the incident took place the same night of the burglary charge upon which petitioner proceeded to jury trial and involved the same alleged victim?

2. Did the PCR judge err in refusing to find counsel ineffective for conceding that petitioner did not have permission to enter the residence involved in the burglary charge when petitioner and his fiancee had recently lived together at the residence, petitioner told counsel he had consent to enter and in petitioner's statement to the police he told them he entered the residence to remove some of his things and did not believe anyone was at home.

See Petition, p. 2 (Court Docket No. 19-15, p. 3).

On May 16, 2013, the South Carolina Supreme Court denied Petitioner's writ of certiorari. See Court Docket No. 19-17. The Remittitur was sent down on June 3, 2013. See Court Docket No. 19-18.

Petitioner then filed a pro se Petition for Writ of Certiorari to the United States Supreme Court; Sowell v. South Carolina, No. 13-5831 (Court Docket No. 19-19); in which he presented the following issue:

Under the double jeopardy clause, prosecution for the greater crime after prosecution for the lesser is impermissible. The State Courts held Petitioner's magistrate offensesdidn't prevent felony conviction under Blockburger³. Does double jeopardy prohibit multiple trials on related charges even if Blockburger allows charges in a single proceeding?

See Court Docket No. 19-19, p. 4.

The United States Supreme Court denied certiorari in a letter Order filed on October 15, 2013. See Court Docket No. 19-20.

In his Petition for writ of habeas corpus filed in this United States District Court, Petitioner raises the following issues:

Ground One: Unreasonable application of clearly established federal law.

Supporting Facts: Counsel conducted a defense premised on guilt, overriding Sowell's not-guilty plea. In the burglary trial, counsel conceded that Sowell didn't have lawful possession of the residence he shared with his fiancee. Further, Counsel stressed to the jury that he was wrong to be there. The PCR order found (1) [c]ounsel acted [reasonably] in failing to argue consent, and (2) testimony is needed to overcome the prejudice prong.

Counsel cannot waive a defendant's constitutional right to plead not guilty. Brookhart v. Janis, 384 U.S. 1 (1966). In the burglary trial, Counsel conceded that the Petitioner didn't have lawful possession of the residence he shared with his fiancee. The PCR order found Counsel acted [reasonably] in failing to argue consent, and (2) testimony is needed to overcome the Strickland prejudice standard. Does the order fall under the "unreasonable application" criterion of 28 U.S.C. 2254(d)(1)?

See Petition, p. 6 & Attachment, p. 1.

Discussion

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, while the federal court ischarged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case; See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972); the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).

I.

Petitioner contends that his counsel was ineffective for not arguing that Petitioner had consent to enter the burglarized dwelling and, instead, conceded that Petitioner did not have permission to enter the dwelling at issue. Petitioner contends that his counsel's ineffectiveness is demonstrated because: (1) he and his fiancee had recently lived together at the residence; (2) he told counsel he had consent to enter; and (3) in his statement to the police, he told them he entered the residence to remove some of his things and that he did not believe anyone was at home. See Memorandum in Opposition to Summary Judgment, pp. 2, 13. Petitioner also contends that his counsel was ineffective for not arguing that he was a "tenant at-will" who had not been properly ejected from the residence, and that his counsel violated his constitutional rights by effectively voiding his not guilty plea by admitting to several elements of the burglary first charge. See Memorandum in Opposition to Summary Judgment, pp. 6-7, 19-21.

However, while Petitioner raised arguments in his PCR proceeding related to ineffective assistance of counsel due to his counsel's...