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Nesbitt v. Superintendent, Leath Correctional Institution

United States District Court, D. South Carolina

September 17, 2014

Brenda Nesbitt, #139726, Petitioner,
v.
Superintendent, Leath Correctional Institution, Respondent.

REPORT AND RECOMMENDATION

KAYMANI D. WEST, Magistrate Judge.

Petitioner Brenda Nesbitt ("Petitioner") is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 20, 21. On May 19, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if she failed to respond adequately to Respondent's Motion. ECF No. 22. On June 13, 2013, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 27. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 20, be granted.

I. Background

Petitioner is currently incarcerated in the Leath Correctional Institution of the South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 1986, Petitioner was indicted at the November term of the Greenville County Grand Jury for armed robbery, (#86-GS-23-6212), murder (#86-GS-23-6213), and conspiracy (#86-GS-23-6214). App. 225-27.[1] After the State agreed to drop its notice to seek the death penalty, Petitioner pleaded guilty to all charges against her on February 16, 1987. App. 65-67. Petitioner appeared before the Honorable William T. Howell and was represented by C. Carlyle Steele and Will T. Dunn during the guilty plea. App. 1; 64-70. Petitioner's co-defendant also pleaded guilty on February 16, 1987. App. 77-81. The following day, the Honorable William T. Howell sentenced Petitioner to life imprisonment on the murder charge, 25 years imprisonment for the armed robbery charge, and five years imprisonment for the conspiracy charge. App. 91-92. The sentences were to run consecutively. Id. Petitioner did not file an appeal of her conviction or sentence.

II. Procedural History

Petitioner filed three applications for Post-Conviction Relief ("PCR"). Petitioner filed her first PCR Application on June 25, 1996, (96-CP-23-1745), alleging "(a) Sixth Amendment Constitutional Violation of Effective Assistance of Counsel. (b) 8th Amendment to the United States Constitution, and (c) 14th Amendment to the United States Constitution and S.C. Constitution." App. 94-100. Specifically, Petitioner asserted the following allegations, recited verbatim, regarding her claims:

(A) Trial Counsel Failed to appeal.
2 Trial Counsel failed to timely file notice of appeal.
3 Trial Counsel failed to advise Nesbitt of her right to an appeal.
4 Counsel failed to provide expert testimony regarding Nesbitt's childhood, medical/mental status at the time the incident occurred.
(5) Applicant was denied the right to have her individual circumstances considered by the court imposing the sentence, a violation of the 8th Amendment to the United States Constitution, age, teenage mother, drug abuse.
6 Trial Counsel failed to motion during the week of sentencing, in regards to her sentence, since the sentence is the Applicant's only complaint.
7 Applicant states there is new evidence and/or material facts that have not been presented or heard by the court, arrest warrants, indictments, etc. Applicant state her Counsel's ineffectiveness prejudiced her defense.
8 The conviction was in violation of Applicant's right to due process, to appeal and equal protection guaranteed by the 14th Amendment to the United States Constitution and by the South Carolina Constitution.
9 The trial concentrated on the crime and not the evidence nor the warrants, or indictments whereas the indictment read that Ms. Nesbitt was an accessary not the primary, but it was her counsel's legal responsibility to communicate the facts and circumstances surrounding this matter to the Court in a clear and timely manner prior to her plea.
10 Counsel rushed Applicant (Ms. Nesbitt) into pleading guilty without securing a written agreement (Plea Agreement) from the Solicitor and/or judge prior to sentencing.
11 Counsel failed to lay out a trial strategy rather than rush into an unprotected guilty plea.
12 Counsel met with Defendant (Applicant) over a (9) nine month period, preparing her defense, in agreement with her to plead Not Guilty, then once in Court, let the Solicitor intimidate her into pleading Guilty to all the primary charges, when she was only an accessory.

App. 96. The State filed a Return to Petitioner's Application on May 23, 1997. App. 101-05. Thereafter a motions hearing convened on June 23, 1998, before the Honorable Jackson V. Gregory. App. 106-159. During the hearing, Petitioner was present and represented by David W. Holmes. See id. After the hearing, the PCR Court denied and dismissed Petitioner's PCR Application with prejudice on October 5, 1998, because Petitioner had not "established any constitutional violations or deprivations before or during her guilty plea proceeding." App. 160-66.

On October 16, 1998, PCR counsel Holmes filed an appeal on Petitioner's behalf. ECF No. 21-2. On April 7, 1999, Daniel T. Stacey, Chief Attorney for the South Carolina Office on Indigent Defense, filed a Petition for Writ of Certiorari, and raised "[w]hether [P]etitioner pleaded guilty knowingly, intelligently and voluntarily when she was not made aware of the sentences she was facing?" ECF No. 21-3. The State filed a Return to the Petition for Certiorari on June 8, 1999. ECF No. 21-4. The South Carolina Supreme Court issued an Order denying the Petition for Writ of Certiorari on July 10, 2000, and issued the Remittitur on July 26, 2000. ECF Nos. 21-5; 21-6.

Petitioner filed her second PCR Application on June 18, 2001. ECF No. 21-7. Petitioner claimed, verbatim, she was being held unlawfully based on the following grounds:

(a) Prejudice Trial Judge Violated A procedure. 5th Amendment.
(b) Denied Due Process of Law/Prosecution Misconduct
(c) Inaffective Assistance of Trial Counslor/Neligence in ...

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