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Frazier v. McCall

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

July 29, 2014

Herbert T. Frazier, Petitioner,
v.
Michael McCall, Warden, Respondent.

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. ยง 2254. This matter is before the Court upon Respondent's Motion for Summary Judgment. (Dkt. No. 18; see also Dkt. No. 17.)

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 August 19, 2013. (See Dkt. No. 1 at 14 of 14.) On December 18, 2013, Respondent filed a Motion for Summary Judgment. (Dkt. No. 18; see also Dkt. No. 17.) By order filed December 23, 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. 19.) Petitioner filed his Response in Opposition on or about February 24, 2014. (Dkt. No. 23.)

PROCEDURAL HISTORY

The Petitioner is currently confined at Lee Correctional Institution. In October of 2007, the Charleston County Grand Jury indicted Petitioner for armed robbery. (See R. at 29-30.) Petitioner was represented by Rodney Davis, Esquire. (See R. at 1.) On March 7, 2008, Petitioner pled guilty before the Honorable R. Markley Dennis, Jr. (See R. at 1-28.) Judge Dennis sentenced Petitioner to twenty years of confinement. (R. at 26.)

Petitioner did not file a direct appeal. On February 23, 2009, however, he filed an application for post-conviction relief ("PCR"). (R. at 32-38.) In his PCR petition, Petitioner claimed ineffective assistance of counsel, involuntary plea, and that the plea was not knowingly and intelligently made. (R. at 34.) On February 9, 2010, an evidentiary hearing was held before the Honorable Roger M. Young, Sr. (R. at 45-96.) Petitioner was present and represented by Benjamin LeClereq, Esquire. (R. at 45.) Judge Young denied relief. (R. at 97-103.)

On November 1, 2010, Kathrine H. Hudgins, Esquire, of the South Carolina Commission on Indigent Defense, filed a petition for writ of certiorari. (Dkt. No. 17-1.) In that petition, Petitioner raised the following issue: "The guilty plea was rendered involuntary by the fact that an officer told petitioner that he would receive a sentence of no more than six years." (Dkt. No. 17-1 at 5 of 8.)

The South Carolina Court of Appeals entered an order denying the petition on September 5, 2012. (Dkt. No. 17-3.) The matter was remitted to the lower court on September 27, 2012. (Dkt. No. 17-4.)

As noted, Petitioner filed this habeas petition on August 19, 2013. (See Dkt. No. 1.) In this court, Petitioner claims ineffective assistance of counsel, involuntary plea, and that his plea was not knowingly and intelligently made.

APPLICABLE LAW

Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are material' when they might affect the outcome of the case, and a genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth. , 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "the nonmoving party's evidence is to be believed, and all justifiable inferences ...


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