United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
WALLACE W. DIXON, Magistrate Judge.
The Petitioner, Trenton Bennett (Petitioner/Bennett), was last incarcerated at Manning Correctional Institution, a facility of the South Carolina Department of Corrections prior to his release. Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 8, 2013. Respondent filed a motion for summary judgment on November 14, 2013, along with a return, supporting memorandum and exhibits. (Docs. 14, 15). An order was filed November 14, 2013, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. 13). Petitioner filed a response in opposition on December 20, 2013. (Dkt. 21).
The case was reassigned to the undersigned on June 6, 2014. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2) D.S.C., the undersigned is authorized to review such petitions and submit findings and recommendations to the District Judge. Hence it appears consideration of the motion is appropriate.
The Petitioner was incarcerated pursuant to an order of commitment from the Clerk of Court of Charleston County. A Charleston County grand jury indicted Petitioner in April 2009 for possession with intent to distribute (PWID) cocaine base (2009-GS-10-2609) and PWID cocaine base within proximity of a school (2009-GS-10-2610). (PCR App. at 108-11). Chad Fuller, Esquire, represented Petitioner on the charges. (PCR App. at 1). On September 22, 2009, Petitioner pled guilty to both charges before the Honorable Thomas L. Hughston, Jr. (PCR App. at 1-7). Judge Hughston accepted the plea and sentenced Petitioner to five (5) years imprisonment on each charge, to run concurrently. (PCR App. at 7-11). Petitioner did not file a direct appeal of his conviction or sentence. See (PCR App. at 101).
Petitioner filed an application for post-conviction relief (PCR) on April 6, 2010, in which he asserted that he was being held in custody unlawfully for the following reasons:
"Ineffective assistance of counsel as ground for relief, that Applicant pled was not knowingly and voluntary by Applicant.
1. Counsel was ineffective in that he failed to litig on Fourth Amendment claim that has merit and moved for Frank v. Delaware hearing that Officer Frierson, Sgt Jenkins and Officer Vargo, knowing and intentionally create false information in affidavit to establish and finding of probable cause to asserted Applicant for allege committed allege PWID-cocaine base.
2. Counsel was ineffective in that he failed to litigate an Fourth Amendment Claim that has merit and moved for Frank v. Delaware hearing that Officer Frierson, Sgt Jenkins and Officer Vargo knowingly and intentionally create false information in affidavit to establish and finding of probable cause to arrested Applicant for allege committed allege PWID-cocaine base close prox school.
3. Applicant who entered a pled on the advice of the counsel fell below an objective standar of reasonableness, when counsel failed to litigate a due process claim when he failed to filed an Motion to quash an defective indictment that in violation the Law of Gentry Notice.
4. Applicant who entered a pled on the advice of the counsel fell below an objective standard of reasonableness where counsel was ineffective in that he failed to filed an Motion to dismissed that indictment that is in violation of the Law of Brown v. Bailey.
5. Applicant who entered a pled on the advice of the counsel fell below an objective standard of reasonable where counsel was ineffective in that he failed to litigate an due process claim when he failed to file an Motion to dismissed ________ Indictment, 2009-GS-1002609, PWID _______ cocaine base.
6. Applicant who entered a plea on the advice of the counsel fell below an objective standard of reasonable where counsel was ineffective in that he failed to pursue an Motion to suppressed on due process of the Fourteenth-Amendment ground, when alleged drug was seized, when alleged drug was seized doin an arrest and the State failed to send the drug to Sled for test.
Relevant Excerpts from PCR App. at 13-49 (errors in original).
An evidentiary hearing was held on November 17, 2010, before the Honorable Kristi Lea Harrington. (PCR App. at 55). John B. Kern, Esquire, represented Petitioner at the hearing. (PCR App. at 55). At the conclusion of the hearing, Judge Harrington took the matter under advisement. (PCR App. at 97-98). By Order filed December 23, 2010, Judge Harrington denied and dismissed the entire application with prejudice and found that Petitioner failed to establish "any constitutional violations or deprivations before or during his guilty plea and sentencing proceedings." (PCR App. at 100-07). Judge Harrington noted that counsel was not deficient in any manner and that Petitioner was not prejudiced by counsel's representation. (PCR App. at 107).
On January 12, 2011, Petitioner filed an appeal from the dismissal of his PCR application. (Attachment 2). Thereafter, on January 11, 2012, Deputy Chief Appellate Defender Wanda H. Carter filed a Johnson Petition for Writ of Certiorari on behalf of Petitioner. (Attachment 3). PCR appellate counsel raised the following single issue in the appeal:
The PCR court erred in denying petitioner's allegation that his pleas were given involuntarily as he did not understand sentencing consequences because he believed he was charged with a third offense drug charge when in reality the drug charge was a second offense drug charge, which meant he pled guilty without knowledge of the sentencing consequences of the drug charges against him.
(Attachment 3, Johnson Petition for Writ of Certiorari at 2). Along with the Writ, PCR appellate counsel filed a petition to be relieved as counsel.
By a letter dated January 18, 2012, Petitioner was informed that he had forty-five (45) days to file a pro se response to the Petition filed by appellate counsel, and he filed a response on February 28, 2012 (Attachment 4, 5). On April 3, 2013, the South Carolina Court of Appeals entered an order denying the Petition and granting PCR appellate counsel's request to withdraw. (Attachment 6). The Court of Appeals issued the remittitur on April 22, 2013. (Attachment 7).
GROUNDS FOR RELIEF PRESENTED
Petitioner seeks habeas corpus relief here on the following grounds:
Ground One: Ineffective Assistance of Counsel
Supporting Facts: Counsel was ineffective by allowing the applicant to plead guilty to (PWID) cocaine base and (PWID) proximity of school when the prosecutor didn't have any physical evidence to present at the applicant guilty plea hearing which rendered applicant plea of guilty not knowingly and voluntary made.
Ground Two: Counsel err in ignoring and failing to investigate and suppress evidence or lack of evidence.
Supporting Facts: Had counsel examined the record, he would have found that the state solicitor had no physical evidence or laboratory test result to introduce at trial on the two charges at hand..
Ground Three: Counsel erroness advice cause defendant to render an involuntary guilty plea.
Supporting Facts: Counsel gave applicant faulty advice in regards to the evidence which cause the defendant to make a plea that was due to advice of counsel which was incomplete and materially deficient.
Ground Four: Counsel erred by failing to challenge the chain of custody of alleged substance and not demanding a chemical analysis.
Supporting Facts: Had counsel challenge the chain of custody, counsel would have known that a chemical analysis was never done to established illegal substance and by counsel not demanding an independent chemical analysis it denied the applicant right to know of the outcome of the allege drug. By counsel not doing these things to see the lack of evidence there's a reason possibility that applicant would not have plead guilty.
Ground Five: Counsel err in not requesting laboratory test result.
Supporting Facts: Had counsel requested a laboratory test result it would have give applicant enough knowledge to make an intelligent ...