United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
WALLACE W. DIXON, Magistrate Judge.
The Petitioner, a state prisoner proceeding pro se, seeks habeas relief for state convictions pursuant to 28 U.S.C. § 2254. This matter is before the Court upon several motions: (a) Respondent's Motion for Summary Judgment (Dkt. No. 24; see also Dkt. No. 25); (b) Petitioner's Motion "to Vacate Sentence by a Person in State Custody Pursuant to 28 U.S.C. § 2254 and Motion for Partial Summary Judgment" (Dkt. No. 26); (c) Petitioner's Motion "to Be Relieved from Order of Judgment" (Dkt. No. 32); and (d) Petitioner's Motion for Default Judgment (Dkt. No. 36).
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.
The Petitioner brought this habeas action on September 23, 2013. (Dkt. No. 1.) On or about December 30, 2013, Petitioner filed a Motion "to Vacate Sentence by a Person in State Custody Pursuant to 28 U.S.C. § 2254 and Motion for Partial Summary Judgment" (Dkt. No. 26). On January 7, 2014, Respondent filed a Motion for Summary Judgment. (Dkt. No. 24; see also Dkt. No. 25.) By order filed January 7, 2014, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 27.) Petitioner filed his Response in Opposition on or about January 22, 2014. (Dkt. No. 30.) Petitioner has also filed a Motion "to Be Relieved from Order of Judgment" and Motion for Default Judgment. (See Dkt. No. 32; Dkt. No. 36.)
The Petitioner is currently confined at Lieber Correctional Institution. In February of 2006, the Charleston County Grand Jury indicted Petitioner on two counts of armed robbery, assault and battery with intent to kill, and kidnapping. (See R. at 92-102.) Petitioner was represented by David Wolff, Esquire. (See R. at 1.) On June 26, 2007, Petitioner pled guilty before the Honorable R. Markley Dennis, Jr. (See R. at 2-43.) On June 26, 2007, Petitioner was sentenced, pursuant to the negotiated plea agreement, to twenty-five years, concurrent, on each charge of armed robbery; twenty-five years, concurrent, on the kidnapping charge; and twenty years, concurrent, for the charge of assault and battery with intent to kill. (See R. at 41-42.)
Petitioner did not file a direct appeal. However, on March 15, 2010, he filed an application for post-conviction relief ("PCR"). (R. at 44-50.) The following questions and answers appeared in his PCR application (verbatim):
10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) Ineffective assistance of counsel
(b) Failure to file appeal
(c) Involuntary guilty plea
11. State concisely and in the same order the facts which support each of the grounds set out in (10):
(a) Counselor failed to investigate facts surrounding case
(b) Counselor failed to work diligently in my behalf
(R. at 46.)
On September 15, 2010, an evidentiary hearing was held before the Honorable Roger M. Young, Sr. (R. at 56-85.) Petitioner was present and represented by Mark Archer, Esquire. (R. at 56.) In an order filed on October 19, 2010, Judge Young granted Petitioner's request for a review of direct appeal issues pursuant to White v. State , 263 S.C. 110, 108 S.E.2d 35 (1974), and denied the remainder of the application for post-conviction relief as barred by the statute of limitations. (R. at 86-90.)
On June 23, 2011, Elizabeth A. Franklin-Best, Esquire, of the South Carolina Commission on Indigent Defense, filed a petition for writ of certiorari. (Dkt. No. 25-3.) In that petition, Petitioner raised the following issue: "Does the record support the PCR judge's grant of a belated appeal to Smalls because he did not knowingly and intelligently waive his right to appeal?" (Dkt. No. 25-3 at 3 of 8.) In his White v. State brief, Petitioner raised the following issue:
Whether Smalls did not knowingly and voluntarily plead guilty to these offenses because the trial court judge informed him that he would be able to appeal the judge's rulings on pretrial matters, thus rendering Smalls's plea conditional in violation of South Carolina state law?
(Dkt. No. 25-4 at 4 of 8.)
The South Carolina Court of Appeals entered an order denying the petition on October 31, 2013. (Dkt. No. 25-8.) ...