United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 22.] Petitioner, proceeding pro se, is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 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.
Petitioner filed this Petition for writ of habeas corpus on July 2, 2013. [Doc. 1.] On December 31, 2013, Respondent filed a motion for summary judgment and a return and memorandum. [Docs. 22, 23.] On January 2, 2014, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 24.] Petitioner filed a response on March 6, 2014. [Doc. 30.] On March 27, 2014, the Court granted Respondent's motion to expand the record and include a previously unavailable transcript from certain state court proceedings. [Doc. 33.] The Court allowed Petitioner until April 10, 2014, to respond to the additional documents. [ Id. ] Petitioner filed a response in opposition to the motion to supplement on April 9, 2014. [Doc. 36.]
Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted and the Petition be denied.
Petitioner is presently confined in the South Carolina Department of Corrections at Lieber Correctional Institution. [Doc. 1.] In June of 2000, Petitioner was indicted for possession of more than 400 grams of cocaine. [Doc. 23-5 at 65.] Petitioner went to trial on August 13, 2001, and was convicted by a jury of the charge on August 16, 2001. [Docs. XX-X-XX-X.] Judge B. Hicks Harwell, Jr. sentenced Petitioner to thirty years in prison. [Doc. 23-5 at 66.]
Petitioner did not file a direct appeal of his conviction or sentence. [Doc. 23 at 2.]
Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on August 16, 2002. [Doc. 23-5 at 66-77.] Petitioner alleged he was being held in custody unlawfully based on ineffective assistance of counsel, because counsel failed to file a timely notice of appeal. [ Id. at 72.] Petitioner requested a belated appeal pursuant to White v. State, 208 S.E.3d 35 (S.C. 1974). [ Id. ] The PCR court held an evidentiary hearing on October 14, 2004, and granted Petitioner a White v. State appeal and 30 days to file an amended PCR application, which Petitioner did through his attorney Scott P. Floyd ("Floyd"). [Doc. 23-5 at 82-91.] Therefore, two grounds were before the PCR court: (1) "my lawyer failed to file an appeal after he was requested to do so;" and (2) my lawyer failed to object to the testimony of witness Lowman Timmy Arush, III." [ Id. at 89.]
On December 12, 2007, a hearing was held before Thomas A. Russo on Petitioner's PCR application, at which Petitioner was represented by Floyd. [Doc. 32-1.] Petitioner and his trial counsel, Hank Anderson, both testified at the hearing. [Doc. 32-1.] On January 8, 2008, the PCR court issued an order denying and dismissing Petitioner's application with prejudice. [ Id. at 120-27.] In denying the application, the PCR judge found that:
[T]he allegation that trial counsel's representation fell below reasonable professional norms is without merit. This Court finds trial counsel's testimony to be more credible than that of the [Petitioner]. This Court finds that trial counsel's trial strategy in dealing with Rush's testimony fell within reasonable professional norms for a trial attorney. Trial counsel objected several times to hearsay and to leading. In addition, he used the inconsistencies to his client's advantage as much as he could. Trial counsel was able to demonstrate to the jury that Rush's testimony was questionable and not credible. The fact that the jury still found the [Petitioner] guilty does not render trial counsel ineffective.
[ Id. at 126.] The PCR court did note that Petitioner was still entitled to his direct appeal. [ Id. at 121.]
Belated Direct Appeal
On July 23, 2010, represented by Kathrine H. Hudgins of the South Carolina Commission on Indigent Defense, Petitioner filed a writ of certiorari with the South Carolina Supreme Court. [Doc. 23-7.] The State did not object to the writ being granted [Doc. 23-9] and the South Carolina Supreme Court granted the writ pursuant to White v. State on December 1, 2011. [Doc. 23-11.] Petitioner presented one issue on appeal: "did the trial judge abuse his discretion in imposing the maximum sentence because petitioner would not admit guilt following a jury trial." [Doc. 23-8 at 4.] The Supreme Court held oral arguments and determined that Petitioner's sentence was imposed in violation of his constitutional rights. [Doc. 23-12.] The case was reversed and remanded for re-sentencing. [ Id. ] Remittitur issued on April 16, 2012. [Doc. 23-12.]
Petitioner was re-sentenced on May 8, 2012, to 28 years of imprisonment. [Doc. 23-14.] Petitioner attempted to file a notice of appeal of his new sentence on May 11, 2012. On October 12, 2012, the South Carolina Court of Appeals notified Petitioner that his notice of appeal was deficient because he did not provide a proof of service on the state's counsel. [Doc. 23-15.] Petitioner submitted proof of service, dated October 18, 2012; thereafter, on November 1, 2012, the South Carolina Court of Appeals dismissed the appeal as untimely. [Doc. 23-16.] Petitioner filed a petition for rehearing and on February 11, 2013, the Court of Appeals denied the petition. [Doc. 23-17.] Remittitur issued on March 20, 2013. [Doc. 23-18.] Petitioner appealed the Court of Appeal's dismissal to the South Carolina Supreme Court, which was dismissed as untimely on April 12, 2013. [Doc. 23-19.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on July 2, 2013, pursuant to 28 U.S.C. § 2254. [Doc. 1.] Petitioner raises the following ground for relief, quoted verbatim:
Dismissal of notice of appeal, dismissal reconsideration motion by the Court of Appeals. Petition for rehearing is denied by the Supreme Court of South Carolina and Court of Appeals.
Supporting facts: Erred in their dismissal of notice of appeal and reconsideration motion. Petition[er] file[d] his reconsideration motion of dismissal, that were timely file to Court of Appeals and Supreme Court of S.C. Petition[er's] facts documents proves to the courts of his timely file appeals. Petition[er] showing proof of his legal mail of when he received and mail out from institution mail room at Kirkland R&E, and Lieber C.I. Petition[er] showing of his filing documents is within a timely manner. See: copy of legal mail, stamped envelopes to institutions mailrooms. I file all documents accordingly, to as I receive them from the Court of Appeals and the Supreme Court of S.C.
[Doc. 1-4 at 5.]
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is ...