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Fulton v. McCall

United States District Court, D. South Carolina, Charleston Division

July 15, 2014

Kevin Fulton, Petitioner,
v.
Michael McCall, Lee CI Warden, Respondent.

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. ยง 2254. This matter is before the Court upon Respondent's Motion for Summary Judgment. (Dkt. No. 16; see also Dkt. No. 15.) 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 July 11, 2013. (Dkt. No. 1.) On November 4, 2013, Respondent filed a Motion for Summary Judgment. (Dkt. No. 16; see also Dkt. No. 15.) By order filed November 5, 2013, 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. 17.) Petitioner filed his Response in Opposition on or about November 21, 2013. (Dkt. No. 19.)

PROCEDURAL HISTORY

The Petitioner is currently confined at Lee Correctional Institution of the South Carolina Department of Corrections. In January of 2005, the Florence County Grand Jury indicted Petitioner for murder. (See R. at 25-26.) Petitioner was represented by Barry Scott Suggs, Esquire. (See R. at 1.) On October 27, 2005, Petitioner pled guilty to voluntary manslaughter before the Honorable John L. Breeden, Jr. (See R. at 1-21.) On October 27, 2005, Petitioner was sentenced to thirty years of confinement. (R. at 20-21.) Mr. Suggs made an oral Motion for Reconsideration on October 27, 2005; a hearing on that motion was held on February 27, 2007. (R. at 21-23, 28, 30-60.) In an order dated May 3, 2007, Judge Breeden reduced Petitioner's sentence to twenty-five years. (R. at 61-62.)

Petitioner did not file a direct appeal. On March 18, 2008, however, he filed an application for post-conviction relief ("PCR"). (R. at 63-74.) In his application, Petitioner raised the following grounds for relief:

(a) The Applicant was denied effective assistance of counsel mandated by the [S]ixth Amendment of [the] U.S. Constitution, protected by virtue of the Fourteenth Amendment, enforceable through [S]ection [F]ive.
(b) Counsel was ineffective in failing to enterview/supeana [sic] exculpatory witnesses['] testimony prior to the impending trial.
(c) Counsel was ineffective for not building a self-defense defense on the Applicant's behalf when the evidence in his case strongly supported one.

(Dkt. No. 15-3 at 66 of 106.)

On April 8, 2009, an evidentiary hearing was held before the Honorable Thomas A. Russo. (R. at 80-110.) Petitioner was present and represented by Charles T. Brooks, III, Esquire. (See R. at 80.) In an order filed on October 5, 2009, Judge Russo denied the application for post-conviction relief and dismissed the petition. (R. at 111-17.)

Petitioner, through his attorney Kathrine H. Hudgins of the South Carolina Commission on Indigent Defense, filed a Johnson Petition for Writ of Certiorari on February 7, 2011. (See Dkt. No. 15-1.)[1] Through counsel, Petitioner raised the following issue:

Was the guilty plea rendered involuntary by the fact that plea counsel led petitioner to believe that he would receive a sentence of less than fifteen years but counsel failed to negotiate a sentence cap of fifteen years and petitioner received a twenty five year sentence?

(Dkt. No. 15-1 at 3 of 10.) Ms. Hudgins also filed a petition to be relieved as counsel. (Dkt. No. 15-1 at 9 of 10.) On or about March 3, 2011, Petitioner filed a pro se response to the Johnson petition, wherein he raised the following issues (verbatim):

1. PCR Applicant Kevin Fulton argues that the PCR Court's order of dismissal is shown being inadequate and not addressing every and each issue raised in the PCR application for the PCR Court to ...

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