United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed pro se on May 1, 2014.
The Respondent filed a return and motion for summary judgment on August 6, 2014. As the Petitioner is proceeding pro se, a Roseboro order was filed on August 11, 2014, advising the Petitioner that he had thirty-four (34) days to file any material in opposition to the motion for summary judgment. Petitioner was specifically advised that if he failed to respond adequately, the motion for summary judgment may be granted, thereby ending his case. However, even after receiving an extension of time to respond, Petitioner has failed to file a response.
This matter is now before the Court for disposition.
Petitioner was indicted in Clarendon County in July 2006 for four (4) counts of first degree burglary [Indictment No. 06-GS-14-189] and one (1) count of aggravated stalking [Indictment No. 06-GS-14-188]. (R.pp. 2, 56-57). Petitioner was represented by Harry L. Devoe, Esquire, and on October 11, 2006 entered a guilty plea to one count of first-degree burglary and one count of stalking, with a sentencing recommendation of twenty (20) years. (R.pp. 1-15). Petitioner was thereafter sentenced to twenty (20) years imprisonment on the first degree burglary conviction and thirty (30) days confinement for the stalking conviction, both to be served concurrently. (R.pp. 13-14). Petitioner did not appeal his conviction and/or sentence.
On March 23, 2009, Petitioner filed an application for post-conviction relief ("APCR") in state circuit court. Jones v. State of South Carolina, No. 2009-CP-14-150. (R.pp. 16-27). Petitioner raised numerous issues in his APCR, primarily centering around alleged ineffective assistance of counsel. (R.pp. 20-22). Petitioner was represented in his APCR by Tara Leaphart, Esquire, and an evidentiary hearing was held on Petitioner's application on April 26, 2011. (R.pp. 35-49). In an order filed June 10, 2011, the PCR judge denied relief in its entirety. (R.pp. 50-55).
Petitioner filed a timely appeal of the PCR court's order. Petitioner was represented on appeal by Robert M. Pachak, Appellate Defender with the South Carolina Commission on Indigent Defense, who filed a Johnson petition seeking to be relieved as counsel and raising the following issue:
Whether petitioner knowingly and intelligently waived his right to a direct appeal of his guilty plea?
See Court Docket No. 14-5, p. 3.
A pro se petition from the Petitioner was subsequently also received by the South Carolina Supreme Court dated February 13, 2011. See Court Docket No. 14-7. On July 24, 2012, the South Carolina Supreme Court transferred Petitioner's case to the South Carolina Court of Appeals, which granted Petitioner's motion to amend his pro se petition. See Court Docket Nos. 14-8, 14-9 and 14-10. On December 13, 2013, the South Carolina Court of Appeals granted counsel's petition to be relieved and denied Petitioner's petition for a writ of certiorari. See Court Docket No. 14-11. The Remittitur was sent down on December 31, 2013. See Court Docket No. 14-12.
On February 18, 2014, Petitioner filed a second application for post-conviction relief in state circuit court. Jones v. State of South Carolina, No. 2014-CP-14-47. See Court Docket No. 14-13. Petitioner asserted in this petition that he was being held unlawfully because when he went to court, he was under the impression that there was DNA evidence against him based on statements made by his public defender. Petitioner claimed that he had recently seen the SLED report on DNA analysis done on the gun, and that it did not say that it matched Petitioner's DNA. Petitioner contended that he would not have pled guilty had he known this information. See Court Docket No. 14-13, pp. 4-5. In a conditional order of dismissal dated July 24, 2014 (filed on or about August 12, 2014), the PCR Court gave Petitioner twenty (20) days from the date of service of the order to respond. See Court Docket No. 14-15. Based upon a review of the State court docket, Petitioner does not appear to have responded to the Conditional Order of Dismissal in his state court action. See www.judicial.state.sc.us/case (Clarendon County - Donnie Jones Case No. 2014-CP-14-0047); see also Lolavar v. de Santibanes, 430 F.3d 221, 224 & n. 2 (4th Cir. 2005)[taking judicial notice of state court records].
Petitioner filed this Petition for writ of habeas corpus in United States District Court even though his second APCR action discussed hereinabove is still pending. Petitioner raises the ...