GUNN v. STATE OF SOUTH CAROLINA, (D.S.C. 2001)

WILLIAM M. CATOE, United States 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 Rule73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review posttrial petitions for relief and submit findings and recommendations to the District Court.

Evelyn Gunn, the petitioner's wife, and Harold Glenn Moss were both codefendants and each has also filed a § 2254 action. Both of those actions (C.A. 6:00-1806-13AK and 2:00-2543-13AK) have been consolidated with this case.

FACTS PRESENTED

The record reveals that the petitioner is currently confined to Broad River Correctional Institution of the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Court for Cherokee County. At an August 1989 session, the South Carolina State Grand Jury issued a 25-count indictment against the petitioner and 20 other defendants. Specifically, the State Grand Jury indicted the petitioner for Conspiracy: Trafficking in Illegal Drugs — Dilaudid (count one of the indictment), and 22 counts of Trafficking in Illegal Drugs — Dilaudid (counts three through 24 of the indictment). Subsequently, at a September 1989 session, the South Carolina State Grand Jury issued a superseding 30-count indictment against the petitioner and 32 other defendants (89-GS-47-04-001). Specifically, the Grand Jury indicted the petitioner for Conspiracy: Trafficking in Illegal Drugs — Dilaudid (count one of the indictment), and 23 counts of Trafficking in Illegal Drugs — Dilaudid (counts two through 13 and 15 through 25 of the indictment).

The petitioner and 12 of his co-defendants were tried by a jury before the Honorable Robert L. McFadden on January 8-23rd 1990. The petitioner was represented by attorney Dallas D. Ball, and the case was prosecuted by Cameron M. Currie and Sean Kittrell of the South Carolina Attorney General's Office, and Seventh Judicial Circuit Assistant Solicitor Beverly Jones. At the conclusion of the State's case, the trial judge dismissed or granted directed verdicts as to four of the 24 counts against the petitioner. Specifically, the judge dismissed or granted directed verdicts as to counts 16, 18, 22, and 25. On January 23, 1990, the jury found the petitioner guilty on 17 or the remaining 20 counts: 1-9, 11-13, 17, 19-20, 23-24. The jury acquitted the petitioner on counts 10, 15, and 21.

Following the jury verdicts and post-trial motions, Judge McFadden sentenced the petitioner as follows:

Count 1: 40 years and a fine of $200, 000;

Count 2: 25 years (consecutive) and a $50, 000 fine;

Count 3: 25 years (consecutive) and a $50, 000 fine;

Count 4: 25 years (consecutive) and a $50, 000 fine;

Count 5: 25 years (concurrent) and a $50, 000 fine;

Count 6: 25 years (concurrent) and a $50, 000 fine;

Count 7: 25 years (concurrent) and a $50, 000 fine;

Count 8: 25 years (concurrent) and a $50, 000 fine;

Count 9: 25 years (concurrent) and a $50, 000 fine;

Count 11: 25 years (concurrent) and a $50, 000 fine;

Count 12: 25 years (concurrent) and a $50, 000 fine;

Count 13: 25 years (concurrent) and a $50, 000 fine;

Count 17: 25 years (concurrent) and a $50, 000 fine;

Count 19: 25 years (concurrent) and a $50, 000 fine;

Count 20: 25 years (concurrent) and a $50, 000 fine;

Count 23: 25 years (concurrent) and a $50, 000 fine; and

Count 24: 25 years (concurrent) and a $50, 000 fine.

A timely notice of appeal on behalf of the petitioner was filed and served by attorney Dallas Ball on February 1, 1990. Trial counsel Ball represented the petitioner on appeal. On July 23, 1990, Ball filed with the South Carolina Supreme Court the Proposed Case and Exceptions for the petitioner's direct appeal. The State followed with its Objections and Amendments to Proposed Case and Exceptions, filed on October 30, 1990.

On November 14, 1990, Appellate Defender Daniel T. Stacey submitted on behalf of co-defendant Harold Glenn Moss his "Return to State's Objections and Proposed Amendments to Case and Exceptions and Motion to Settle the Record." On November 21, 1990, the State filed its "Return to Motion to Settle by Secondary Appellant Harold Glenn Moss." On January 3, 1991, Judge McFadden held a hearing by telephone on the motion to settle the record. On January 6, 1991, Judge McFadden issued an order of settlement on remand, in which he rejected the claim of all defendants that the various appellate lawyers should be entitled to review for a possible violation of Brady v. Maryland, 373 U.S. 83 (1963), the sealed records involving the "investigation into the resignation of the night magistrate." On January 15, 1991, Stacey filed and served a notice of appeal from Judge McFadden's order of settlement on remand. The South Carolina Supreme Court issued an order on March 3, 1993, in which it ordered the sealed records regarding the magistrate's resignation be transported to the South Carolina Supreme Court for review.

On January 16, 1992, Dallas Ball filed on behalf of the petitioner a brief of appellant, in which he raised the following issues:

(1) Did the Court err in not excluding the evidence obtained by a search warrant that did not fulfill the requirements set by statute and is therefore violative of the Fourteenth Amendment and of Article I, Section 10, of the Constitution of the State of South Carolina?

(2) Did the court err in its interpretation of the law relative to conspiracy and in so doing greatly prejudice the Defendant Appellant by allowing testimony of improperly joined conspirators, and also by allowing the Prosecution the unlimited use of hearsay evidence upon their supposition that the link to a conspiracy might later be proven?

(3) Did the Court err when it failed to fully investigate the potential jury tampering that was revealed to the Court during the course of the Appellant's trial, and in failing to do so, deprive the defendant of a fair and impartial trial guaranteed her by the Constitution?

(4) Did the Court err in admitting evidence of the electronic interceptions effected by the Philadelphia, Pennsylvania Police Department, blatantly ignoring this State's public policy and violating the statutory cold regulating the authentication of documents from foreign states presented as evidence in South Carolina Courts?

(5) Did the Court err when it denied Appellant's directed verdict motion on the substance counts of trafficking, where the evidence of weight was legally inadequate, and again in its refusal to charge the jury in the matter?

(6) Did the Trial Judge err in not granting Appellant Gunn's Motion for a new trial in that the circumstances and conduct of this trial, taken as a whole denied Appellant's substantive and procedural due process a guaranteed by the South Carolina and United States Constitutions?

The State filed its brief of respondent on April 22, 1992. On February 22, 1993, the South Carolina Supreme Court issued an order in which it directed the parties to focus their oral arguments on the following issues:

(1) Whether counts 2-30 of the indictment, which do not allege multi-county impact, sufficiently allege the state grand jury's subject matter jurisdiction?

(2) Whether the trial court erred in refusing to allow the impeachment of State's witness Roxanne Gregory by showing she had bribed a judicial officer?

(3) Whether the evidence is sufficient to show that [other codefendants besides Petitioner] were guilty of conspiracy?

On March 4, 1993, the South Carolina Supreme Court issued another order in which it clarified the first issue to be argued as follows:

Whether counts 2-30 of the indictment contain sufficient allegations to establish the crimes charged are within the limited subject matter jurisdiction of the State Grand Jury? See McNamera v. State, 357 S.E.2d 410 [sic] (Fla. 1978); cf, State v. McIntire, 221 S.C. 504, 71 S.E.2d 410 (1952).

On March 8, 1993, the State by letter petitioned the South Carolina Supreme Court to supplement the record with orders from and petitions to the Chief Administrative Judge that the State considered relevant to the subject matter jurisdiction set forth immediately above. The court issued an order on March 9, 1993, in which it denied the State's request to supplement the record.

Oral argument in the direct appeal of the petitioner and his co-defendants was conducted before the South Carolina Supreme Court on March 11, 1993. On August 30, 1993, the South Carolina Supreme Court issued an opinion reversing in part, affirming in part, and vacating in part the various convictions of the petitioner and his co-defendants. State v. Gunn, Op. No. 23931, 1993 WL 335157 (S.C.Sup.Ct. filed August 30, 1993).

Attorney Ball filed a petition for rehearing on September 13, 1993. On September 23, 1993, the South Carolina Supreme Court granted the petition for rehearing as to all appellants to address a further issue. On September 23, 1993, the court issued its amended opinion, which also reversed in part, affirmed in part, and vacated in part. State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993). Specifically as to the petitioner, the opinion:

(1) affirmed petitioner's conviction for trafficking by conspiracy (Count One of the Indictment); (2) reversed petitioner's 16 convictions for substantive acts of trafficking, because the indictments failed to sufficiently allege jurisdiction in the State Grand Jury (Counts 2-9, 11-13, 17, 19-20, 23-24).

State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993). The remittitur was sent down on October 11, 1993.

The petitioner next filed a state application for post-conviction relief ("APCR") on October 20, 1993 (93-CP-11-0351). In his APCR, the petitioner asserted the following claims:

(1) Applicant was deprived of effective assistance of trial counsel in violations and deprivations of Article One, Sections 3 14, of the South Carolina Constitution, and the Sixth and Fourteenth Amendments of the U.S. Constitution when trial counsel failed:

(a) Counsel failed to properly investigate, prepare for and prosecute to dismiss entire indictment for being vague, overbroad and quash,

(b) Counsel failed to properly challenge indictment upon face for failure to sufficiently apprise the applicant of charges,

(c) Counsel failed to timely secure transcript of grand jury proceedings, pursuant of Section 14-7-1700 (S.C. Code 1992 Supp.) And failed to properly investigate all witnesses and evidence thereof,

(d) Counsel failed to properly investigate and challenge police and prosecutoriai misconduct of investigation, arrest, indictment and trial,

(e) Counsel failed to challenge jurisdiction defects of allege conspiracy of two counties,

(f) Counsel failed to properly investigate and research lawfulness and jurisdiction of Grand Jury and proceedings,

(g) Counsel failed to properly research and prepare for and present motion to secure SLED file on prosecution witness Roxanne Gregory,

(h) Counsel failed to properly investigate State witnesses and deals they made and received for testimony,

(i) Counsel failed to properly investigate warrants and illegal arrest,

(I) Counsel failed to object to improper evidence and arguments,

(k) Counsel failed to object to and properly argue against prosecution's pitting of the witnesses,

(I) Counsel failed to properly object to erroneous burden-shifting reasonable doubt jury charge,

(in) Counsel failed to object to erroneous circumstantial evidence jury charge,

(n) Counsel failed to object to erroneous conspiracy jury charges.

(o) Counsel failed to properly investigate, prepare for and argue severance,

(p) Counsel failed to move for voir dire of jury during trial, after jury had been exposed to news media,

(q) Trial counsel failed to move to dismiss indictment upon improper conduct of prosecution's use of news media to convict,

(2) Applicant was deprived of effective assistance of appeal counsel, in violations and deprivations of Article One, Section 3 14, of the South Carolina Constitution, and the Sixth and Fourteenth Amendments of the U.S. Constitution.

(3) Applicant was deprived of rights of substantial due process of law, by acts and omissions of unlawful conduct of police, and prosecution, in violations and deprivations of Article One, Sections 3 10, and the Fourth and Fourteenth Amendments of the U.S. Constitution.

(4) Applicant was deprived of rights of substantial due process, procedural due process and property liberty interests by the Court, police, and prosecution, in violations of Article 1, Section 3 11 of the South Carolina Constitution, and the Fourteenth Amendment of the U.S. Constitution — upon — invalid police action, arrest, warrant, indictment, denial of proofs by Court.

The State made its return on November 22, 1993.

The petitioner retained Isaac McDuffie Stone and Jennifer Kneece Shealy to represent him and his wife and co-defendant, Evelyn Gunn. An evidentiary in both the petitioner's and Evelyn Gunn's APCRs was held on October 10, 1995, before the Honorable J. Derham Cole. The petitioner called to testify himself, Evelyn Gunn, Dennis Fowler, Lisa Dunbar, trial counsel Dallas Ball, Evelyn Gunn's trial counsel Wade S. Weatherford III, Olin Martin, and Lynn Larkin.

On November 29, 1995, the petitioner's APCR counsel submitted a post hearing brief entitled "Brief of Applicants Gunn, " in which they asserted the following issues:

(1) Applicants' attorneys were ineffective in failing to move to sever their clients from the trials of the other co-defendants, to preserve the issue of the existence of multiple and unrelated conspiracies and the prejudice to the Gunns in allowing such testimony in their trial, and to adequately address such issues on appeal.

(2) Applicants' attorneys were ineffective in failing to argue that double jeopardy existed in that Applicants were deprived of their property and sentenced based on the same alleged criminal activity.

(3) Applicant Evelyn Gunn was deprived of effective assistance of counsel by being directed by her attorney to testify at trial which allowed the jury to identify her voice and match it with an incriminating recorded phone call, which according to her attorney was the only "evidence against her, and caused her to admit that it was her voice.

(4) Applicants' attorneys failed to adequately explore through voir dire of the jury the effect pre-trial publicity had on them and failed to ask the judge to inquire daily as to whether any jury member had read or heard any news coverage on the trial.

(5) Applicants' attorneys failed to effectively represent the Applicants by failing to properly prepare their case in that the Applicants were never allowed to read or have read to them the content of all discovery materials.

(6) Applicants' attorneys failed to adequately preserve the issue of the sufficiency of the indictment by not advising the court of the fact that the Applicants had not been afforded the opportunity to review and reproduce the transcript of the testimony of the witnesses who appeared before the Grand Jury.

(7) Applicant Lee Gunn's attorney was ineffective in not retaining a handwriting expert to compare the signatures of Lee Gunn with his alleged signature or motel receipts.

The State followed with its post-hearing brief dated December 15, 1995. On January 4, 1996, attorney Shealy sent a letter to Judge Cole asserting that the petitioner also had raised the issue of whether trial counsel was ineffective for failing to require the State to charge the petitioner pursuant to the statutory conspiracy crime at section 44-53-420. On August 6, 1996, Judge Cole signed an order of dismissal rejecting the petitioner's claims for relief.

Attorneys Stone and Shealy filed on September 16, 1996, a notice of appeal on behalf of the petitioner from Judge Cole's order of dismissal. On September 23, 1996, Shealy and Stone filed with the South Carolina Supreme Court a "Motion to remand or hold appeal in abeyance pursuant to SCROP 60 and Rule 224 of the Appellate Court Rules." In this motion, the petitioner requested that the APCR be remanded back to Judge Cole to rule on unaddressed issues such as counsel's failure to object to the petitioner not being charged under section 44-53-420. On October 3, 1996, the State filed a letter indicating it did not object to the petitioner's motion. The South Carolina Supreme Court remanded the case.

Attorneys Stone and Shealy then filed before Judge Cole on February 12, 1997, a "Motion to Modify or Amend Judgement Pursuant to Supreme Court Order." In this motion, the petitioner argued that trial counsel was ineffective for failing to see that the petitioner was sentenced for conspiracy under section 44-53-370, rather than the trafficking statute, 44-53-370. The State filed a letter return with Judge Cole on April 14, 1997, in which it indicated it had no objection to consideration of the issue and drafting of an amended order. On September 18, 1997, the petitioner filed a pro se "Request for Response: In Re: Motion to Modify or Amend Judgement Pursuant to Supreme Court Order."

On September 24, 1997, Judge Cole signed an amended order of dismissal in which he rejected the additional claims presented by the petitioner. Attorneys Stone and Shealy filed a notice of appeal on November 26, 1997, from Judge Cole's amended order of dismissal. Assistant Appellate Defender Robert M. Pachak of the South Carolina Office of Appellate Defense then represented the petitioner in his APCR appeal. On July 1, 1998, Pachak filed with the South Carolina Supreme Court a petition for writ of certiorari, in which he raised the following issue on behalf of the petitioner:

Whether appellate counsel was ineffective in failing to appeal the issue of prior bad acts that was presented in petitioner's trial?

The State filed its return to the petition for writ of certiorari on October 16, 1998. The South Carolina Supreme Court issued an order denying the petition for writ of certiorari on August 23, 1999, and the remittitur was sent down on September 8, 1999.

In his petition currently before this court, the petitioner makes the following allegations:

(1) Indictment was overbroad and vague. The indictment was overbroad and vague in that it was insufficient in listing pertinent facts regarding the acts alleged that the Applicant engaged. Further, the Trial Court erred in denying Defendant's Motion to Dismiss Count One of the indictment, on the grounds that the indictment is too vague and lacks specificity, is overbroad, consists of only conclusory statements, and fails to comply with the constitutional mandate which requires that an indictment give a Defendant sufficient information to prepare his defense and enable the State to put the Matter to rest in the event either of a conviction or an acquittal so that the Appellant cannot be . . .

(2) Jurisdiction. The indictment alleges multiple conspiracies in two different counties, never specifying precisely which jurisdiction the alleged acts/crimes occurred; nor did it go so far as to differentiate the particular crime to be attributed to a particular defendant at what specific time and in what specific location (jurisdiction).

(3) Brady violation. Applicant asserts that reversible error was committed when the prosecution fail to disclose information held by SLED (South Carolina Law Enforcement Division) on file regarding Confidential Informant witness Roxanne Gregory. South Carolina Supreme Court Justice Finney found that Mr. Lee Gunn should have received a new trial.

(4) Jury instruction(s). As incorporated from the Supreme Court opinion No. 23931, filed September 23, 1993, regarding State v. Gunn, et. al., Applicant contends the trial court committed reversible error in refusing to charge the jury that, under the conspiracy count, it must find beyond a reasonable doubt the conspiracy in fact occurred in both York and Cherokee counties as alleged in the indictment before it could find them guilty of this charge.

(5) Double Jeopardy. Applicant claims his conviction for conspiracy to traffic Dilaudid amounts to a violation of the constitutional prohibition of double jeopardy. His claim is based on the fact that certain items of his property were seized at the time of his arrest and were ultimately subjected to civil forfeiture.

(6) Pre-trial publicity/media coverage. The Applicant alleges that his trial counsel was deficient in failing to thoroughly voir dire the jury concerning pretrial publicity and media coverage. The Applicant argues that counsel failed to request of the jury "followup questions as to the way in which such media coverage effected [sic] their decision making abilities."

(7) Trial counsel and appellate counsel ineffectiveness — motion to sever. The Applicant argues that trial counsel was ineffective in failing to move to sever his case from that of his co-defendants. The Applicant argues that counsel failed to preserve the issue of unrelated evidence concerning separate conspiracies.

(8) The prosecution's frequent referral to "prior bad acts" throughout trial. Throughout the trial of the Applicant, the State's repeated and frequent bare assertions that these other drug related "bad acts" went to motive or intent is not supported by the record. Motive and intent were not issues in this case. The State was really trying to prove that Petitioner and the codefendants were guilty of conspiring to sell Dilaudid because of the prior drug bad acts. The issue served to prejudice the jury irreparably.

On January 16, 2001, the respondents filed a motion for summary judgment. By order of this court filed January 22, 2001, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the summary judgment process and the possible consequences if he failed to adequately respond to the motion. The petitioner filed his response to the motion on April 13, 2001.

APPLICABLE LAW

Title 28, United States Code, Section 2254(d) and (e), provides in pertinent part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) 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

(2) 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.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

When presented with an application for habeas relief, the first inquiry is to determine whether the claim raised on habeas was "adjudicated on the merits" by the state court. 28 U.S.C.A. § 2254(d); see Weeks v. Angelone, 176 F.3d 249, 257 (4th Cir. 1999), aff'd, 120 S.Ct. 727 (2000). If the claim was properly presented to the state court and the state court adjudicated it, the deferential standard of review set forth in § 2254(d) applies and federal habeas corpus relief may not be granted unless the relevant state-court adjudication "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " 28 U.S.C.A. § 2254(d)(1), 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 proceedings, " 28 U.S.C.A. § 2254(d)(2); see Wililams v. Taylor, 529 U.S. 362 (2000). If, however, "a petitioner has properly presented a claim to the state court but the state court has not adjudicated the claim on the merits . . ., our review of questions of law and mixed questions of law and fact is de novo." Weeks, 176 F.3d at 258.

Where a petitioner fails to comply with state procedural rule, which failure provides adequate and independent grounds for the state's denial of relief, federal review will also be barred where the state court has expressly relied on procedural default, absent a showing of cause and prejudice, or actual innocence. Harris v. Reed, 489 U.S. 255 (1989); Murray v. Carrier, 477 U.S. 478 (1986); Wainwright v. Sykes, 433 U.S. 72 (1977).

The failure to raise a claim in the first state post-conviction petition as required by state law provides an adequate state procedural ground for denying federal habeas corpus relief. See Murch v. Mottram, 409 U.S. 41 (1972); Bassette v. Thompson, 915 F.2d 932 (4th Cir. 1990), cert. denied, 499 U.S. 982 (1991); Waye v. Murray, 884 F.2d 765 (4th Cir. 1989); Titcomb v. Virginia, 869 F.2d 780 (4th Cir.), cert. denied, 493 U.S. 843 (1989); Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir.), cert. denied, 485 U.S. 1000 (1988). Similarly, the failure to appeal or to assert a claim in an appeal taken from the denial of the first state post-conviction petition, as required by state law, bars federal review absent cause and prejudice. Coleman v. Thompson, 501 U.S. 722 (1991); see Whitley v. Bair, 802 F.2d 1487 (4th Cir. 1986), cert. denied, 480 U.S. 951 (1987).

A procedurally defaulted ineffective-assistance claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the "cause and prejudice" standard with respect to the ineffective-assistance claim itself. The procedural default doctrine and its attendant "cause and prejudice" standard are grounded in comity and federalism concerns, Coleman v. Thompson, 501 U.S. 722, 730, and apply whether the default occurred at trial, on appeal, or on state collateral attack, Murray v. Carrier, 477 U.S. 478, 490-92. Thus, a prisoner must demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider that claim's merits. 502 U.S. at 750. Counsel's ineffectiveness in failing properly to preserve a claim for state-court review will suffice as cause, but only if that ineffectiveness itself constitutes an independent constitutional claim. Carrier, 477 U.S. at 488-99. The comity and federalism principles underlying the doctrine of exhaustion of state remedies require an ineffective-assistance claim to be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Carrier, 477 U.S. at 489. The doctrine's purposes would be frustrated if federal review were available to a prisoner who had presented his claim in state court, but in such a manner that the state court could not, under its procedural rules, have entertained it.

The Sixth Amendment guarantees the right to effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong standard governing ineffective assistance claims. To obtain reversal of a conviction for ineffective assistance of counsel, the defendant must show both that his counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that the result of the proceeding would have been different but for counsel's performance. The Court explained that the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." The right to effective assistance of counsel applies equally to retained and appointed counsel, but does not apply to pro se representation. A defendant must satisfy both the performance prong and the prejudice prong of the Strickland standard to prevail on an ineffectiveness claim. In reviewing such claims, however, courts are not required to consider both prongs; if a defendant fails to satisfy one prong, the court need not consider the other.

Under the performance prong of Strickland, there is a "strong presumption" that counsel's actions are tactical and strategic decisions and as such are reasonable. To be successful, a defendant alleging ineffective assistance of counsel must overcome this presumption. Courts have declined to characterize counsel's performance as ineffective assistance when counsel acted according to the defendant's restrictions on strategy, or when the defendant failed to provide counsel with complete and accurate information.

Although a court may conclude that a single error rendered counsel's assistance ineffective, it must consider the totality of the circumstances in the case in reaching its determination. Murray v. Carrier, 477 U.S. 478, 496 (1986); Strickland, 466 U.S. at 690.

Under the prejudice prong of the Strickland test, a defendant must demonstrate a "reasonable probability" that counsel's deficient performance altered the outcome of a proceeding. With respect to a guilty plea, a defendant can satisfy the prejudice prong by demonstrating that, but for counsel's deficient performance, a reasonable probability exists that the defendant would not have pleaded guilty, but would have insisted on a trial.

CONCLUSIONS AND RECOMMENDATION

Under the State's theory of this case, the petitioner, Lee Gunn, was the central player in this drug trafficking case, with the majority of the evidence at trial being presented against him. As the central player under the State's theory, the petitioner would not be a proper party to be granted a severance (ground seven).

As to the petitioner's allegation that the indictment was vague and overbroad, this court agrees with and adopts the findings of the South Carolina Supreme Court that the indictment did properly give the petitioner sufficient information to prepare his defense and that the petitioner's attorney's access to the state grand jury testimony gave the petitioner the specific information he needed to prepare for trial. The petitioner cites no specific instance where he was prejudiced by the inefficiency of the indictment. As to jurisdiction, the indictment clearly specified that the conspiracy occurred in Cherokee and York counties.

In his third allegation, the petitioner alleges that there was a Brady violation. The petitioner alleges misconduct by a witness (Roxanne Gregory), specifically that she had a sexual relationship with a state magistrate to have her mother's bond reduced. This incident was investigated by SLED, and that investigative report was requested by the petitioner to impeach Gregory. The trial judge excluded the evidence, and the South Carolina Supreme Court found that this evidence, although improperly excluded, was cumulative to the petitioner's own admission that Gregory was a drug dealer, a liar, a junkie, had prior convictions for marijuana and forgery, and would do anything to support her habit, including lying, cheating, stealing, and prostitution.

This court adopts the findings of the South Carolina Supreme Court that the SLED investigation would have been cumulative to the petitioner's own admission and that the error in not admitting the report did not deny the petitioner a fair trial. Kyles v. Whitley, 514 U.S. 419, 434 (1995).

Ground four concerns the court's failure to instruct the jury that it must find that the conspiracy occurred in both York and Cherokee counties. In Neder v. U.S., 527 U.S. 1 (1999), the United States Supreme Court held that the harmless error rule of Chapman v. California, 386 U.S. 18 (1967), applies to a jury instruction that omits an element of the offense. This court adopts the South Carolina Supreme Court's determination that the refusal to charge was not erroneous, but even it if was error it was harmless error pursuant to Chapman and did not render the criminal trial fundamentally unfair. The trial judge did specifically instruct the jury that

before you may find the defendant guilty under Count One of the indictment that you must find beyond a reasonable doubt that the State has proven that there was a conspiracy as charged in the indictment, that the conspiracy was for the selling, delivery or bringing into this State in Cherokee and York counties . . . . (Tr. 3268 II 4-15).

In his fifth allegation, the petitioner claims double jeopardy because certain items of his property were seized at the time of his arrest. The double jeopardy clause does not apply to civil forfeiture actions. The double jeopardy clause of the Fifth Amendment protects against criminal prosecution, not civil actions. Serfass v. U.S., 420 U.S. 377, 391-92 (1975). Also, the petitioner did not present this claim to the South Carolina Supreme Court and has procedurally defaulted as to this allegation. Coleman v. Thompson, 501 U.S. 722 (1991).

Ground six concems pretrial publicity. However, the petitioner elected not to raise this issue in his appeal to the South Carolina Supreme Court and is now procedurally barred from raising the issue in this court. Coleman, 501 U.S. 722.

Ground eight concerns "prior bad acts." The record does not indicate that this allegation was submitted to the South Carolina Supreme Court and, therefore, it is now procedurally barred. Coleman, 501 U.S. 722. Alternatively, the issue of admission of evidence is a matter of state law interpretation. The admission of this testimony did not result in an unfair trial and did not violate a specific constitutional right and, therefore, cannot be considered in these federal proceedings. Johnson v. Blackburn, 778 F.2d 1044 1050 (5th Cir. 1985).

A review of the entire record reveals that the petitioner was granted a fair trial and was provided effective assistance of counsel. Wherefore, it is recommended that this action be dismissed.