United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on cross motions for summary judgment. [Docs. 14, 18.] Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on October 30, 2013. [Doc. 1.] On February 18, 2014, Respondent filed a motion for summary judgment and a return and memorandum to the Petition [Docs. 14, 15], to which Petitioner filed a response in opposition on April 4, 2014 [Doc. 22]. On March 19, 2014, Petitioner filed a motion for summary judgment [Doc. 18], to which Respondent filed a response in opposition on March 27, 2014 [Doc. 20].
Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted, Petitioner's motion for summary judgment be denied, and the Petition be denied.
Petitioner is presently confined in the South Carolina Department of Corrections ("SCDC") at Lee Correctional Institution pursuant to orders of commitment of the Pickens County Clerk of Court. [Doc. 1.] In September 1977, Petitioner was indicted for burglary, assault and battery with intent to kill, aggravated assault and battery, and armed robbery. [Doc. 15-1.] On October 7, 1977, represented by Sydney F. McDaniel ("McDaniel"), Petitioner pled guilty to the charges and received a sentence of life imprisonment for the burglary charge, twenty-five years imprisonment for the armed robbery charge, twenty years imprisonment for the assault and battery with intent to kill charge, and ten years for the aggravated assault and battery charge, the armed robbery and assault and battery with intent to kill sentences to run consecutively to the life sentence while the aggravated assault and battery charge to run concurrently with the life sentence. [Doc. 15-2.] No direct appeal was filed.
First PCR Application
Petitioner filed an application for post-conviction relief ("PCR") on January 23, 1981. [Doc. 15-3.] Petitioner raised the following grounds for relief, quoted substantially verbatim:
(1) Ineffective assistance of counsel during all stages
(2) Illegal search and seizure
(3) Under influence of drugs during arrest and during time of guilty plea
(4) Plea of guilty made under conditions of plea bargaining that were not carried out
(5) Denial of constitutional rights
[ Id. at 2.] In support of his grounds for relief, Petitioner provided the following facts, quoted substantially verbatim:
I was under influence of medication from the time of my arrest. The medication was prescribed by a Court-appointed physician. My Constitutional Rights were never explained to me nor was I given enough time to prepare my case before trial with my attorney. My attorney further instructed me to plead guilty because of a
[ Id. ] The State filed a return on March 20, 1981. [Doc. 15-4.]
An evidentiary hearing was held on March 1, 1982, at which Petitioner was represented by Karl Kenyon ("Kenyon") and Robert Lusk ("Lusk"). [Doc. 15-5.] On June 4, 1982, the PCR court issued an order denying and dismissing the PCR application. [Doc. 15-6.]
A notice of appeal was timely filed. [Doc. 15-7.] On September 30, 1982, the Supreme Court of South Carolina issued a certificate of no return. [Doc. 15-8.] On October 12, 1982, the appeal was dismissed. [ See Doc. 15-18 at 32.]
Second PCR Application
Petitioner filed a second PCR application on May 7, 1990. [Doc. 15-9.] Petitioner raised the following grounds for relief, quoted substantially verbatim:
(a) Ineffective assistance of counsel
(b) Denied due process of law
(c) Abuse of discretion by the sentencing Court
[ Id. at 3.] In support of his grounds for relief, Petitioner provided the following facts, quoted substantially verbatim:
(a) Counsel for the petitioner did not render the assistance to his client that this Court would consider to be reasonable or consistent with the Mandates of Strickland v. Washington (citations omitted). Petitioner would show the following:
Counsel for the petitioner did not conduct an independent investigation into his clients' case, nor prepare a proper defense for his client. Counsel did not research the case at bar, such as the issue of impaneling a jury to hear the case that would include all evidence from the state, and all the evidence that the petitioner would submit in mitigation, and then make a determination as to whether or not the petitioner would have received a recommendation of mercy on the burgulary charge. If the petitioner had received a recommendation of mercy on the burgulary offense, the sentencing Court would have had the discretion of sentencing the petitioner to a term of imprisonment of not less than five (5) years. Counsel for the petitioner did not advise the petitioner, or the Court, of the petitioners' right to impanel a jury for the purpose of determining this issue.
It is a well settled rule in this state that this is a right that counsel must advise his client of. The record is bereft of any facts that would lead this Court to believe that the Attorney for the petitioner did in fact advise the petitioner of the right that was due him through the 6th Amendment of the United States Constitution, and all of the mandated cases for this District.
(b) The Court, as well as the Attorney for the petitioner, did not advise the petitioner of his rights that are secured and guaranteed to him by the 6th Amendment to the Constitution of the United States, thereby denying the petitioner due process of law.
(c) The Honorable Judge John Gentry, presiding Judge over the case at bar, did abuse his discretion in this case. The abuse was established when the Court accepted the petitioners' plea without questioning the petitioner through affirmative awareness, consistent with Rule 11 or the Federal Rules of Civil Procedure, to insure the Court and the petitioner that the party before the Court had been advised of all his rights, and that he understood all his rights, options, and opportunities. However, the Court did not comply with this Rule, and thereby foreclosed the petitioner from ever knowing that he had the right to impanel a jury for the purpose of allowing the jury to hear all of the evidence that the state and the petitioner had to offer before making a determination as to whether or not the petitioner should receive a recommendation of mercy on the burglary charge.
[ Id. at 3-4.] The State filed a return on June 26, 1990. [Doc. 15-10.]
On July 26, 1991, the PCR court issued a conditional order of dismissal. [Doc. 15-11.] In the conditional order, the court expressed its intent to summarily dismiss the matter as successive and untimely but granted Petitioner twenty days to show why the order should not become final. [ Id. ] On January 23, 1992, after petitioner filed objections to the conditional order, the PCR court issued a final order of dismissal. [Doc. 15-12.]
A notice of appeal was timely filed. On April 17, 1992, Wanda H. Haile of the South Carolina Office of Appellate Defense filed on Petitioner's behalf a petition for writ of certiorari in the South Carolina Supreme Court. [Doc. 15-13.] The petition asserted the following as the sole question presented:
Petitioner received ineffective assistance from his postconviction relief counsel because counsel failed to properly initiate an appeal from the lower court's order dismissing the post-conviction relief application?
[ Id. at 2.] The court granted the petition on July 29, 1992 and remanded the matter to the circuit court for an evidentiary hearing on the issue of whether Petitioner was denied an opportunity to seek appellate review of the denial of his first post-conviction relief application. [Doc. 15-14.]
An evidentiary hearing and supplemental hearing were held, at which Petitioner was represented by Dallas D. Ball ("Ball"). [Docs. 15-15, 15-16.] On December 21, 1992, the court denied and dismissed the PCR application. [ See Doc. 15-24 at 2.]
A notice of appeal was timely filed. On June 16, 1993, M. Anne Pearce ("Pearce") of the South Carolina Office of Appellate Defense filed on Petitioner's behalf a petition for writ of certiorari in the South Carolina Supreme Court. [Doc. 15-19.] The petition asserted the following as the sole question presented:
Whether petitioner waived his right to appeal the order dismissing his first application for ...