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Tessner v. Warden, Kirkland Correctional Institution

United States District Court, District of South Carolina

November 4, 2014

ERIC TESSNER, #317137, a/k/a Eric Dale Tessner, Petitioner,
v.
WARDEN, KIRKLAND CORRECTIONAL INSTITUTION, Respondent

Eric Dale Tessner, Petitioner, Pro se, Columbia, SC.

For Warden of Kirkland Correctional Institution, Respondent: James Anthony Mabry, LEAD ATTORNEY, Donald John Zelenka, SC Attorney General's Office, Columbia, SC.

REPORT AND RECOMMENDATION

Bristow Marchant, United States 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 June 11, 2013.[1]

The Respondent filed a return and motion for summary judgment on July 7, 2014. As the Petitioner is proceeding pro se, a Roseboro order was filed on July 8, 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, Petitioner failed to timely respond, and a recommendation for dismissal was entered. Petitioner then sought additional time, but even after receiving the granting of a belated motion for extension of time, Petitioner still failed to timely file any response.

After the case was dismissed for failure to prosecute, Petitioner was given yet another opportunity to file a response, which he eventually did on October 15, 2014, although this response primarily consists of a copy of Petitioner's Amended Post Conviction Relief (" PCR") petition with a few notations added. This matter is now before the Court for disposition.[2]

Procedural History

Petitioner was indicted in Florence County in March 2006 on two counts of murder [Indictment No. 06-GS-21-579] and one count of use of a vehicle without the owner's permission [Indictment No. 06-GS-21-580). (R.pp. 1519-1522). Petitioner was represented by Thurmond Brooker, Esquire, and after a jury trial on August 14- 18, 2006, was found guilty on both counts of murder. (R.pp. 1247-1248). Petitioner was sentenced to consecutive life imprisonment terms on each murder charge, while the use of vehicle charge was apparently nolle prossed with leave to re-indict. (R.p. 1254). Petitioner did not file a direct appeal of his convictions or sentences.

On April 18, 2007, Petitioner filed an application for post-conviction relief (" APCR") in state circuit court. Tessner v. State of South Carolina, No. 2009-CP-21-619. (R.pp. 1304-1310). Petitioner originally raised the following issues in his APCR:

Under the Sixth Amendment violation of the United States and South Carolina Constitutions.
Ineffective Assistance of Counsel. Counsel Failed to Submit Evidence for My Defense.

(R.p. 1306).

Petitioner subsequently filed an amendment and supplement to his PCR petition, setting forth numerous ineffective assistance of counsel issues. (R.pp. 1312-1345). Petitioner was represented in his APCR by Charles Blake, Esquire, and an evidentiary hearing was held on Petitioner's application on September 9, 2009. (R.pp. 1367-1471). In an order filed October 5, 2009, the PCR judge denied relief on the allegations in the APCR, except for the granting of a belated review of a direct appeal. (R.pp. 1490-1518).

Petitioner filed a timely appeal of the PCR court's order by way of a Petition for Writ of Certiorari (merits brief) and a White v. State[3] brief (merits brief). Petitioner was represented on appeal by Robert M. Pachak, of the South Carolina Office of Appellate Defense. In the Petition for Writ of Certiorari, Petitioner raised the following issues:

Ground One: Whether there was any evidence to support the PCR judge's findings that Petitioner was entitled to a belated appeal of his convictions?

Ground Two: Whether defense counsel was ineffective in failing to request a jury charge on Petitioner's alibi defense?

Petition for Writ of Certiorari, p. 2 (Court Docket No. 50-11).

In the White v. State brief, Petitioner raised the following ...


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