United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
WALLACE W. DIXON, Magistrate Judge.
The Petitioner, Stanley Eppenger, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment filed on December 16, 2013. (Dkt. 16, 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.
Eppenger brought this habeas corpus action on July 17, 2013. (Dkt. 1). Respondent moved for summary judgment and by order filed on December 17, 2013, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), Eppenger was advised of the summary judgment dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt.18). Eppenger moved before the court for additional time to respond three (3) times, which motions were granted. On June 5, 2014, the matter was assigned to the undersigned, and on June 27, 2014, Eppenger filed his response in opposition to the Respondent's summary judgment motion. Hence, it appears appropriate to consider the motion.
The Petitioner, Stanley Eppenger, # 298136, is presently housed at Tyger River Correctional Institution, a facility of the South Carolina Department of Corrections, pursuant to orders of commitment of the Beaufort County Clerk of Court. Eppenger was indicted at the January 2003 term of the Beaufort County Grand Jury for assault and battery of a high and aggravated nature (ABHAN) (2003-GS-07-81), criminal sexual conduct (CSC)-1st degree (2003-GS-07-83), and kidnapping (2003-GS-07-84). Eric Erickson, Esquire, represented Eppenger. On November 17-21, 2003, Eppenger proceeded to trial, after which the jury found him guilty as indicted. The Honorable Jackson V. Gregory sentenced him to confinement for twenty-six (26) years each for CSC-1st degree and kidnapping and ten (10) years for ABHAN. The sentences were to run concurrently.
A timely Notice of Appeal was filed on Eppenger's behalf and an appeal was perfected. Robert M. Dudek of the South Carolina Office of Indigent Defense filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967) on August 15, 2005. In the Final Anders Brief of Appellant, counsel Dudek asserted as the sole arguable ground: Whether the court erred by allowing testimony about a prior volatile sexual encounter appellant had since it was irrelevant to the issue of whether the alleged victim in the case consented? (Final Anders Brief of Appellant, p. 3). The South Carolina Court of Appeals dismissed Applicant's appeal. State v. Eppenger, Op. No. 2006-UP-090 (S.C.Ct. App. filed February 14, 2006). The Remittitur was issued on March 3, 2006.
STATE PCR PROCEEDINGS
Eppenger made an application for post-conviction relief (PCR) filed March 10, 2006. App.p. 353. The Respondent made its Return on June 16, 2006. An evidentiary hearing into the matter was convened on September 3, 2009, at the Beaufort County Courthouse before the Honorable Alexander S. Macaulay, presiding judge. The Petitioner was present at the hearing and was represented by Donald Colongeli, Esquire.
Eppenger alleged he was being held in custody unlawfully for the following reasons:
1. Ineffective assistance of trial counsel in that counsel:
a. Failed to engage in valid plea negotiations.
b. Failed to object to trial court's charge that constructively amended the kidnapping indictment.
c. Conceded Applicant's guilt during closing argument.
d. Failed to object when judge impermissibly commented on facts of Applicant's case while giving examples to the jury during his charge.
e. Failed to adequately prepare or spend enough time with Applicant.
f. Did not hire a private investigator or an expert witness.
g. Did not request Jackson v. Denno hearing.
h. Did not make directed verdict motion.
i. Did not review discovery material with Applicant.
j. Did not provide mitigation during sentencing.
2. Ineffective assistance of appellate counsel in that counsel failed to raise a meritorious issue on appeal.
Eppenger testified on his own behalf at the PCR hearing, along with trial counsel. The PCR Court had before it the records of the Beaufort County Clerk of Court, Eppenger's records from the South Carolina Department of Corrections, the Record on Appeal and Supplemental Record on Appeal, the direct appeal records, the PCR application and Eppenger's pro se brief, and Respondent's Return thereto. On October 22, 2009, Judge Macaulay entered his written order of dismissal. App.p. 473-481.
Eppenger made a timely appeal from the denial of PCR relief to the Carolina Supreme Court in which he was represented by Joseph L. Savitz, Senior Appellate Defender of the South Carolina Division on Appellate Defense. On October 18, 2010, he made a Petition for A Writ of Certiorari on the merits raising the following issue:
I. Appellate counsel failed to provide petitioner effective assistance, in violation of Smith v. Robbins , 528 U.S. 259 (2000), and Bennett v. State , 383 S.C. 303, 680 S.E.2d 273 (2009), by failing to raise on direct appeal the trial judge's supplemental charge on the immaterial relationship between the allegations of the indictment and the State's evidence at trial and that the criminal sexual conduct charge "did occur."
Petition for Writ of Certiorari, p, 2.
On September 8, 2012, the South Carolina Court of Appeals entered its order denying the petition for writ of certiorari. Stanley Eppenger v. State of South Carolina, Appellate Case No. 2009-148808 (S.C. Ct. App. September 8, 2012) (order ...