US v. Roderrete McClure (5th Cir., 4/25/17): When Does a Plea Agreement in Federal Court Prevent Additional Indictments?

Tough, tough lesson here for McClure, and all criminal defense lawyers should be aware of this case.  Here, McClure appeals the denial of his motion to dismiss his indictment for narcotics trafficking, arguing that the Government was barred from pursuing the indictment based on a plea agreement he entered into in an earlier case.  In 2012, McClure pleaded guilty to 18 USC 922(g)(1), Felon in Possession of a Firearm.   Information leading to this charge was obtained during the course of the Government’s investigation of McClure for public corruption and narcotics trafficking which eventually led to these charges.

Essentially, McClure and others stole drugs on several occasions from the Tenaha, Texas Marshal’s Office to sell.  He and others eventually staged a burglary of the evidence room to cover up the crime.  They stole drugs and gun and dumped the guns in a creek outside of Tenaha.  The FBI got involved after McClure’s confederate forwarded extortion letters that he and McClure received.  The letters were signed “Jack Frost” who purported to be a DEA agent and threatened to expose the thefts at the Marshal’s Office unless they paid him money.  The FBI concluded, after investigation, that Tracy Forman wrote the letters. Fortman confessed and said he needed the money because he couldn’t move the drugs that McClure and his buddy gave him.  He also showed the FBI agent a picture of a ‘well-stocked” gun cabinet in McClure’s house.  Shortly before interviewing Fortman, the FBI agent also interviewed McClure about the burglary of the Marshal’s office.  McClure told the agent he had installed recording equipment at the Marshal’s Office and City Hall and that he kept copies of these recordings on computers and hard drives in his home.  Based on this information, the agents got a search warrant.  And that’s when they found the guns (and other stuff not directly pertinent to this issue).

Two days later, McClure is indicted for the guns.  The Government filed a 404(b) motion regarding the guns stolen from the Marshal’s Office.  The judge excluded that evidence finding it concerned another “crime which is still under investigation” and was “peripheral” to the gun charge.  McClure pleaded guilty to a single count of being a felon in possession of a fire arm.  The plea agreement stated:

  1. Government’s Agreement: The United States Attorney for the Eastern District of Texas agrees not to prosecute the defendant for any additional non-tax-related charges based upon the conduct underlying and related to the defendant’s plea of guilty.

After this, the Government continued its investigation into public corruption and narcotics trafficking.  The investigation was transferred to another district. In August, 2013, McClure was indicted for drug conspiracy, possession with intent to distribute and distribution of marijuana, cocaine, prescription drugs and firearms charges.  A whole bunch of Texas-sized trouble.  McClure moved to dismiss the indictment on the basis that the earlier plea agreement precluded his prosecution.

At a hearing on the matter, McClure’s lawyer testified it was her understanding during the plea negotiations that the plea agreement would preclude any charges related to the Tenaha narcotics investigation, and that’s what she advised her client.  She also testified, however, that she did not recall any specific conversation with the AUSA on the issue.  The AUSA testified that she never suggested to counsel or anyone else that McClure’s guilty plea would dispose of these other charges.  The AUSA also testified that defense counsel never received any discovery relating to the narcotics investigation, other than evidence relating to the guns.  The district court judge denied the motion to dismiss the indictment.  He appealed.

The Fifth Circuit essentially adopted the district court’s reasoning.  The 2012 plea agreement stated that the Government could not bring additional charges “based upon the conduct underlying and related to the defendant’s plea of guilty.”  The two sets of charges are separate and distinct because 1) the two cases involved separate and distinct courses of conduct, 2) In the gun case, the crime was possession of the stolen guns while he was a felon; the narcotics case involved stolen drugs and guns from the Marshal’s Office, 3) the relevant time frames were different– August 15, 2011 for the guns, August 2009 to the end of 2010 for the narcotics case, 4) they happened at different places, 5) they implicated different statutory provisions, and 5) there’s a co-conspirator in the narcotics case not present in the gun case.

McClure argued that since the charges arose out of the same investigation, they are “inextricably intertwined.”  Per the Court, this argument misses the point.  The focus of the Government’s promise not to bring any additional charges is on the conduct “underlying and related to the” McClure’s guilty plea, and not on the Government’s investigation of it.  Additionally, in another case, United States v. Elashyi, 554 F.3d 480 (5th Cir. 2008) the Fifth Circuit found a breach of a plea agreement where the language of the agreement was that the Government agreed not to “seek, prefer or prosecute any further criminal charges against [the defendant] arising out of the facts and circumstances known by the government at this time surrounding [the defendant’s] involvement in the crimes addressed in the …indictment.”  As noted in that opinion, the phrase “arising out of” has a very broad meaning.  And also, a defense counsel’s subjective belief that a defendant’s plea will preclude future prosecuted related to an ongoing investigation, even if the defendant relies on it, does not, without more, immunize him from prosecution.”  See United States v. Williams, 809 F.2d 1072, 1079-80 (5th Cir. 1987).

So, really tough result here, and serves as a reminder that one set of charges, arising out of an investigation, does not necessarily immunize a client from a second set of charges from that same investigation.  Language is key, and make sure there’s no wiggle room in the plea agreement.

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United States v. Philip Swaby, 4th Circuit Court of Appeals (filed 4/24/17): Court’s “general” immigration warnings did not cure lawyer’s erroneous advice regarding consequences of guilty plea.

A very important case for lawyers representing defendants facing possible deportation as a consequence of criminal convictions.  The facts here are very similar to those SCOTUS addressed in Padilla v. Kentucky, 559 U.S. 356 (2010).  Counsel was appointed to represent a client who had lawful permanent resident status.  He was married to a citizen and has two daughters who are citizens.  He also has a step-daughter.  He and his wife were indicted for trafficking counterfeit goods.  Recognizing possible immigration consequences, counsel reached out to another attorney, one who specialized in immigration law.  Counsel sent the indictment and what he believed was the applicable statute to the immigration lawyer.  Unfortunately, he inadvertently sent the wrong statute so the immigration lawyer erroneously advised plea counsel that a plea to the crime would not be considered an aggravated felony for immigration purposes under 8 U.S.C. 1101(a)(43)(M)(i).  The plea agreement ultimately entered into by Petitioner and the Government was predicated on their understandings that Swaby would be free from deportation if he secured a sentence for less than 365 days.  The plea agreement itself contained boilerplate warnings about possible immigration consequences.  And, at the plea itself, the district court judge informed Petitioner that his guilty plea could lead to his deportation or removal from the United States.

The short of it is that the Fourth Circuit found that the general warnings by the district court judge did not mitigate the prejudice of plea counsel’s deficient performance.  In United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012), the Court also found that a district court’s general warnings of risk of deportation do not correct counsel’s deficient performance, although a “careful explanation” specifically correcting misadvice may cure any prejudice that misadvice may cause.  Id. at 253-54.

As to the prejudice prong of the Strickland inquiry, the Court notes that a defendant is prejudiced if “there is a reasonable probability that, but for counsel’s errors, [a defendant] would not have pleaded guilty and would have insisted on going to trial.  Hill v. Lockhart, 474 U.S. 52 (1985).  In the context of a guilty plea, the Fourth Circuit recognizes that a defendant is prejudiced if there is a reasonable probability that the defendant would have negotiated a plea agreement that did not affect his immigration status. United States v. Rodriguez-Vega, 797 F.3d 781, 788-89 (9th Cir. 2015); Kovacs v. United States, 744 F.3d 44, 52-53 (2d Cir. 2014).  Under these tests, and assessing Petitioner’s situation, the Court found that Petitioner demonstrated a reasonable likelihood that he would have negotiated for, and the government would have been amenable to, a plea agreement that had no immigration consequences.  Alternatively, Petitioner could have shown prejudice by showing a reasonable likelihood that, absent his counsel’s error, he would have gone to trial instead.  The Court reversed, vacated, and remanded Petitioner’s case for further proceedings consistent with this opinion.  It looks like Petitioner is going to be able to stay in the United States with his wife and children, a very humane result under the facts of this case.  Chief Judge Gregory, Judge Wynn and Judge Thacker on the opinion.

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In the Matter of the Care and Treatment of Jeffrey Chapman, South Carolina Requires Competent Counsel for Sexually Violent Predator Hearings (Op. No. 27705, filed 2/15/17).

A hugely important win for Mr. Chapman here, but with a dissent that argues the opinion invades the province of the legislature.  Excellent work by David Alexander of the Office of Indigent Defense.

The State sought to keep Chapman civilly committed after the expiration of his prison sentence pursuant to South Carolina statute.  It appears from the opinion that he received less than zealous advocacy in the hearing. Chapman’s lawyer did not make any motions during the two-day trial, and only objected once.  Indeed, his attorney did not even insist that the presiding judge charge the law at the conclusion of the evidence as required by the SCRCP, Rule 51.  It’s pretty clear the Court found this is a problem.

The Court held that Chapman was entitled to effective assistance of counsel during all stages of the SVP proceeding.  It noted that the United States Supreme Court “repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”  Addington v. Texas, 441 U.S. 418, 425 (1979).  Our statute in South Carolina provides that “At all stages of the proceedings…, a person subject to [the Act] is entitled to the assistance of counsel, and if the person is indigent, the court must appoint counsel to assist the person.  S.C. Code Ann. 44-38-90(B).  Implicit in this statutory guarantee of the right to counsel, the Court also rooted the right to effective assistance of counsel in the Fourteenth Amendment and the South Carolina Constitution.

But the question is how to vindicate that right since the SVP statute does not provide a mechanism for raising ineffective assistance of counsel claims?   The Court held that an appellant wishing to raise ineffective assistance of counsel claim should do so by filing state habeas petitions and applying the Strickland standard (requires the appellant to prove counsel’s deficient performance and that appellant was prejudiced by the substandard performance).  This is a different standard than is usually applied in state habeas petitions (which is “manifest injustice” and “shocking to the universal sense of justice”).

So this opinion brings some much-needed relief in this corner of the law since the quality of representation in these hearings has been extremely low for a number of years.  Justice Few believes the Court exceeded its authority, and suggests how he thinks this kind of challenge should be raised.  In his dissent he suggests that an SVP appellant should bring a claim of IAC in circuit court.  Then, the circuit court judge would address the issue of whether the SVP’s right to annual review adequately protects the SVP’s due process rights regarding the effectiveness of his counsel.  If the circuit court rules on that, and it is appealed, then the Court would be required to determine whether the court committed any errors.  My objection to that is that it fails to consider how abysmal the quality of representation in this area really is.  It would take an effective lawyer to even file the appeal alleging the ineffectiveness of the lawyer, and that won’t happen.  I think it’s just further proof of the sorry state of this area of law that no one has, until this case, it appears, even raised the issue of the ineffective assistance of these court-appointed and virtually not-paid lawyers who have been handling these cases.  In other words, I read this opinion as the Court finally putting its foot down and insisting that South Carolina citizens be adequately represented.   It’s been a long time coming.

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Ramirez v. State, Appellate Case No. 2015-002063 (filed 1/5/17), SC Supreme Court Clarifies Law for Incompetent Guilty Plea

The petitioner here is severely intellectually disabled.  His plea counsel failed to request an independent competency evaluation prior to his guilty plea.  Initially, the PCR judge denied relief.  The South Carolina Court of Appeals disagreed and found that trial counsel was ineffective but denied relief finding itself constrained under the “any evidence” standard that typically applies when the appellate courts review a PCR judge’s findings as to the prejudice prong.

In a case where a defendant’s competency is at issue, the law is this:

When a PCR applicant raises issues of competency in the context of a plea proceeding, the two-prong Strickland analysis still applies; however, because of the nature of the claim, proof of deficiency of counsel is intertwined with prejudice.  Specifically, when establishing Strickland prejudice in the context of plea counsel’s failure to request a mental competency evaluation, “the [applicant] need only show a ‘reasonable probability’ that he was …incompetent at the time of the plea.”  Jeter v. State, 308 S.C. 230, 233, 417 S.E.2d 594, 596 (1992) see also Matthews v. State, 358 S.C. 456, 458-60, 596 S.E.2d 49, 50-51 (2004) (expanding the reasonable probability standard as the burden for proving both the deficiency of counsel and the prejudice prongs) … “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Gallman v. State, 307 S.C. 273, 276, 414 S.E.2d 780, 782 (1992).

The Court vacated Ramirez’s plea and remanded the case back to the court of general sessions.  Acting Chief Justice Pleicones dissented and found that an earlier report by a psychologist that Ramirez was competent supported the PCR judge’s finding that Ramirez was not prejudiced by his counsel’s failure to obtain an independent competency evaluation.  But, he also states that allowing Ramirez’s plea to stand in this case is “shocking to the universal sense of justice” and warrants Butler relief.  Butler v. State, 302 S.C. 466, 397 S.E.2d 87 (1990).

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Post-Conviction Relief Hearings, How to Raise and Preserve Your Winning Issues Under the Current System

In my opinion, the post-conviction relief (PCR) system in South Carolina is completely and utterly broken for the vast majority of inmates. Under the Commission of Indigent Defense’s relatively new system, attorneys contract with that agency to take these cases. For their efforts, they receive a flat sum of $800. That’s it. And they’re not allowed to bill for mileage or other ordinary expenses. They can request funding for an investigator, and other experts, but few do. This flat fee system has been roundly criticized by the American Bar Association (ABA), but that fact has been ignored. Many of the lawyers who sign up for this contract system are young and inexperienced. That, unfortunately, is simply a fact as there are no “qualifications” for inclusion on the list.

In one case that I handled in PCR, I secured a copy of the voucher submitted by my client’s PCR counsel. Even though my client is serving a 25-year sentence for drug distribution, imposed after a three-day trial, his PCR counsel did not even read his transcript! PCR counsel failed to raise patently obvious claims of ineffective assistance of counsel, including claims for which there is clear, well-established case law that would compel a new trial for my client. So, what to do about that? Well, unfortunately, almost nothing. South Carolina does not recognize a claim for ineffective assistance of PCR counsel. Short of committing legal malpractice, there is really nothing that can be done if you receive ineffective assistance of PCR counsel. In some cases, you may be able to raise claims by way of a federal habeas petition, but having any claims heard in federal court that have not previously been raised in state court is a daunting task.

So, what do you do if you’re an inmate, with limited resources, and you’ve been appointed a lawyer who has not even read your case? In my opinion, inmates need to do more to self-advocate. If you know the issues in your case, write your own brief and insist that your lawyer make it a part of the record at your evidentiary hearing. Doing so will at least preserve those issues for appellate review (or at least show the court that you tried to raise these issues but were unable to do so because your lawyer was ineffective). Also, it is absolutely necessary that if you claim your trial counsel was ineffective for failing to call witnesses at your trial, you must have those witnesses present at your PCR hearing to testify. If your lawyer has not subpoenaed those witnesses, write a letter to the judge, and send a copy to the Clerk of Court to keep in your file so your appellate lawyer can raise the issue (anything contained in a Clerk of Court’s file can be made a part of the appellate record). Ask the judge to help you subpoena witnesses. Make sure there is a record of your attempting to have the court help you secure these witnesses.

This, of course, is not to claim that all contract PCR attorneys are incompetent. I’m sure there are some very conscientious ones out there. But my experience has led me to believe that there is a serious problem with the quality of PCR representation in our state court system, and that it is not likely to improve in the near future. Inmates who are going to pursue their PCR remedies need to take affirmative steps to raise and preserve their winning issues.

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Nicandor Rodriguez v. Bush, Appellate No. 14-7297, 15-6716 (4th Cir, filed Nov. 23, 2016), Federal Habeas Loss b/c No Fed Right to Plea

Before Rodriguez’s state criminal trial, the trial judge rejected a plea agreement between him and the Solicitor.  The judge gave no other reason other than stating he “was ready to try a case.”  Trial counsel did not object on the record.  Rodriguez’s claim is that trial counsel rendered IAC in failing to do so.  He sought federal habeas relief.

After trial, Rodriguez received a 45-year sentence.  He filed for post-conviction relief and argued that trial COURT violated his federal due process rights by not allowing him to enter the plea agreement.  He also alleged trial counsel IAC for failing to object to the rejection of the plea which kept him from raising that issue on appeal.

At the PCR hearing, trial counsel testified that Rodriguez initially rejected a 25 year offer.  On the day trial was set to begin, the State offered 20 years which he accepted.  His co-defendants were also extended plea offers which they accepted.  The judge ACCEPTED those pleas.   Back in chambers, trial counsel and the solicitor informed the judge of the plea agreement.  The judge said he “was not going to accept that plea and that he was ready to try a case this week or that week.”  Trial counsel admitted that had never happened before, and that he did not know how to handle the situation.

The PCR court found that Rodriguez failed to meet his burden to show that trial counsel should have objected to the judge’s refusal to accept the agreement, and that Rodriguez could not show prejudice.  The court also found that Rodriguez’s due process rights were not violated.

The South Carolina Supreme Court denied cert.

Rodriguez filed his federal habeas petition.

To establish that a state court unreasonably applied federal law, a petitioner must demonstrate:

 [T]hat the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”  Harrington v. Richter, 562 U.S. 86, 103 (2011).

The Fourth Circuit makes quick work of Rodriguez’s claim by finding that the United States Supreme Court has clearly stated that there is no federal right that a plea be accepted by a judge.  Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012). This same proposition is repeated in Lafler v. Cooper, 132 S. Ct. 1376 (2012) (decided on the same day as Frye).  The lack of any cognizable federal right to have a judge accept a plea torpedoes Rodriguez’s claim, even though it would seem that the equities would work in his favor.  It’s hard to see how a defendant doing an extra 25 years in prison just so a judge would have something to do isn’t a constitutional violation . . . but apparently it isn’t.

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Joseph Reddy v. Kelly, 2016 WL 5403918 (6th Cir., filed September 28, 2016). Non-capital Habeas Win on IAC Claim!

Reddy was convicted of the aggravated murder of his mother.  At sentencing, Reddy’s lawyer asked the court to consider evidence that Reddy suffered from Post-Traumatic Stress Disorder (PTSD), which had not been offered at trial.  On appeal, Reddy argued that the evidence was insufficient to support his aggravated murder conviction, and that counsel was ineffective for failing to introduce the PTSD evidence at trial.  The Ohio appellate court changed his aggravated murder conviction to regular murder.  It did not address his PTSD claim.  Reddy then raised the ineffective assistance/ PTSD claim in federal habeas, and the district court denied his petition.   Then, here, on appeal, the Sixth Circuit, reversed (but, beware as it is unpublished).

The facts of the case are sad (as these sorts of cases generally are).  Reddy was arrested for the murder of his mother, a woman with a long history of abusing her children.

Reddy was indicted for aggravated murder, a crime which requires the additional element that the defendant acted “with prior calculation and design.”  A defendant may present mitigating evidence to obtain an instruction on involuntary manslaughter.  Reddy waived his right to a jury trial and proceeded to a bench trial.  Reddy’s lawyer asked the court to find Reddy “guilty of something less than aggravated murder.”  The court found Reddy guilty of aggravated murder.  The court then scheduled a sentencing hearing.  Trial counsel asked the court to review a report written by Dr. John Fabian, a forensic and clinical psychologist who trial counsel had hired to assess Reddy’s psychological and psychiatric state as a part of a competency evaluation.  The parties later stipulated to Reddy’s competency so the report did not come to the judge’s attention at that time.

In his report, Dr. Fabian noted that he administered the Detailed Assessment of Posttraumatic Stress (DAPS) to assess for posttraumatic stress disorder symptoms.  Reddy scored in the clinically significant range for significant emotional or cognitive distress at the time of the traumatic event.  This, the doctor found, was consistent with the significant and consistent abuse of his mother.  Dr. Fabian found that Reddy qualified for Posttraumatic Stress Disorder.  He further found a nexus between this disorder and the killing of his mother.  The court did not address the report at sentencing.  He sentenced Reddy to 20 years to life imprisonment.  He also appointed appellate counsel.

On appeal, one of the issues raised was that trial counsel rendered ineffective assistance of counsel by failing to present relevant and available psychiatric testimony regarding Reddy’s state of mind.   In its opinion, the Ohio Court of Appeals agreed that the evidence presented was insufficient to support the aggravated murder conviction, and modified his conviction to find him guilty of murder rather than ordering a new trial.  Reddy appealed to the Supreme Court, and it denied leave to appeal (the arcana of the procedural posture of this case is, of course, recounted in the opinion and is not included here).

Now, for the good stuff.  Reddy raised the issue that his trial counsel was ineffective by failing to present evidence that Reddy suffered from PTSD to the trial court in his habeas petition.  The District Court for the Northern District of Ohio dismissed his petition and denied a certificate of appealability.  Reddy appealed to the Sixth Circuit.  In short, the Court found that counsel rendered ineffective assistance of counsel:

            “Despite obtaining [Dr. Fabian’s] report, [trial counsel] offered no evidence of PTSD- or any psychiatric evidence—at trial.  Evidence of PTSD would have been vital to Reddy’s defense…The record establishes that [trial counsel’s] decision not to present PTSD evidence was not sound trial strategy.”

Essentially, because mental intent was the heart of Reddy’s defense, it was ineffective for his counsel not to use Dr. Fabian’s finding that Reddy suffers from PTSD.  The Court held that “[Trial counsel’s] decision not to present TPSD evidence warrants relief because the evidence was sufficiently probative of voluntary manslaughter to establish a reasonable probability that the result of Reddy’s trial would have been different.”

Judge Boggs issued a partial concurrence and dissent.  In dissent, he argues that Reddy’s claim fails on the prejudice prong since the PTSD diagnosis was only “provisional.”  He also argues that the trial court judge’s statements already considered that Reddy’s abuse may have caused him to react disproportionately to his mother’s attack of him.  Also, Judge Boggs argues that the trial court judge’s decision was based on the weight of evidence showing that the killing did not happen in the way that Reddy said that it did (and used that as a basis to find the element of “prior calculation and design”).

So, a very nice and important win in the Sixth Circuit.  No doubt this decision will be appealed, so place it on your To Watch List.

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Martina Putnam v. State of South Carolina, App. Case No. 2012-212396 a/k/a YOU WILL LOSE YOUR PCR CASE IF YOUR LAWYER DOESN’T BRING WITNESSES TO TESTIFY

This case is a lesson regarding how a state PCR lawyer absolutely MUST perform at the evidentiary hearing that is provided for an inmate by statute.

The facts are very tragic and involve the conviction of a mother for homicide by child abuse.  After she was convicted and sentenced to 25 years in prison, she submitted a post-conviction relief application.  She alleged that her trial counsel rendered ineffective assistance of counsel by failing to call her husband and her children to testify to the events that occurred in the home on the day the victim died.  She argued that if the Children had attended trial and the trial court had admitted videotapes of the Children’s interviews that it would have helped her case.  At the PCR hearing, neither Patrick nor the Children testified.  Nor did Putnam introduce the evidence she alleged should have been admitted at her trial—the videotapes or the transcripts of the recorded interviews.  Putnam also alleged ineffective assistance of counsel for failing to call an expert to testify to the victim’s medical issues.  Putnam’s lawyer did not introduce any expert testimony at the PCR hearing.

Trial counsel must provide “reasonably effective assistance” under prevailing professional norms.”  Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under the two-prong test established in Strickland, a PCR applicant must prove (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the applicant’s case.  Leon v. State, 379 S.C. 448, 450, 666 S.E.2d 260, 261 (Ct. App. 2008).  “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.”  Strickland, 466 U.S. at 700.

The real problem in this case is that PCR counsel did not secure these witnesses for the PCR hearing.  The Court of Appeals found that trial counsel rendered deficient performance based on their absence, but ultimately concluded Putnam couldn’t prevail on her claim because she could not show prejudice.  THE LAW IN SOUTH CAROLINA IS CLEAR ON THIS ISSUE:

“A PCR applicant cannot show that he was prejudiced by counsel’s failure to call a favorable witness to testify at trial if that witness does not later testify at the PCR hearing or otherwise offer testimony within the rules of evidence.”  Dempsey v. State, 363 S.C. 365, 369, 610 S.E.2d 812, 814 (2005).  “The applicant’s mere speculation what the witnesses’ testimony would have been cannot, by itself, satisfy the applicant’s burden of showing prejudice.”  Glover v. State, 318 S.C. 496, 499, 458 S.E.2d 538, 540 (1995).

This clearly sunk the case here.  The Court found, “[a]lthough Putnam asserted the Children’s testimony “may have shown some sort of information that may have helped in some way” and may have provided the jury with a better understanding of “what was actually going on in the house at the time,” that testimony was speculative and therefore insufficient to establish prejudice.”  And again, “[T]he evidence supports the PCR court’s conclusion that Putnam did not demonstrate prejudice from trial counsel’s failure to subpoena Patrick.”  But then, as if there was ANY confusion about the point, the Court notes in its footnote 3:

“In that regard, we are concerned that PCR counsel—who knew of trial counsel’s failure to secure Patrick’s and the Children’s presence at trial—failed to secure their presence at the PCR hearing or provide evidence of what their testimony would have been at trial.  At the PCR hearing, for example, PCR counsel failed to present any depositions or the Childen’s videotaped interviews in an effort to establish trial counsel’s deficient performance prejudiced Putnam’s case.”

For those inmates who are going into PCR, it is absolutely imperative that you make sure witnesses show up to your PCR hearing to testify if you’re alleging your trial counsel was ineffective for failing to call those witnesses.  You absolutely will not win your case without that being done.  Also, keep in mind that South Carolina does not currently recognize ineffective assistance of PCR counsel so if your lawyer screws up, you’re not going to be able to do anything about it.   This is a hard lesson for Ms. Putnam.

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