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Green v. Bush

United States District Court, D. South Carolina, Charleston Division

November 21, 2014

Timothy Earl Green, Petitioner,
v.
Warden Dennis Bush, Lee CI, Respondent.

REPORT AND RECOMMENDATION

WALLACE W. DIXON, Magistrate Judge.

The Petitioner, Timothy Earl Green, number 324607, is presently incarcerated at the Lee Correctional Institution, a facility of the South Carolina Department of Corrections. The Petitioner, proceeding pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 17, 2014. (Dkt. 1). The Respondent filed a motion for summary judgment on October 2, 2014, along with a return, supporting memorandum and exhibits[1]. (Dkts. 16, 17). An order was filed October 2, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising the Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Dkt. 18). The Petitioner filed a response in opposition on October 22, 2014. (Dkt. 20).

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.

PROCEDURAL HISTORY

The Petitioner is presently confined in the South Carolina Department of Corrections pursuant to orders of commitment from the Richland County Clerk of Court. The Petitioner was indicted at the August 2005 term of the Richland County Grand Jury for murder and armed robbery. (Attachment 1, PCR App. pp. 187-188; pp. 191-192). Assistant Public Defender Carolyn R. Gripp, along with Deputy Public Defender Lauren H. Mobley, represented the Petitioner on the charges. The State called the case to trial on October 16, 2007; however, after selection of a jury, the Petitioner opted to plead guilty before the Honorable G. Thomas Cooper, Jr. Judge Cooper accepted the plea and sentenced the Petitioner to the minimum sentence on both charges: thirty (30) years imprisonment for murder and ten (10) years, concurrent, for armed robbery. (Attachment 1, PCR App. pp. 51-52; see also Attachment 1, PCR App. pp. 4-5). Petitioner filed a timely notice of intent to appeal.

Wanda H. Carter, Deputy Chief Appellate Defender of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented the Petitioner on appeal. On May 23, 2008, appellate counsel filed a Final Anders[2] Brief of Appellant in the South Carolina Court of Appeals and raised the following issue: "The lower court erred in denying appellant's motion to relieve counsel." (Attachment 2, p. 3).

Appellate counsel also filed a motion to be relieved of appointment as, "in her opinion, the appeal [was] without legal merit sufficient to warrant a new trial." (Attachment 2, p. 7).

By letter dated June 2, 2008, the Clerk of the South Carolina Court of Appeals advised the Petitioner of his right to file a pro se response "addressing any issues [he] believe[d] the Court should consider in [the] appeal." (Attachment 4). By letter dated January 9, 2009, appellate counsel notified the South Carolina Court of Appeals that the Petitioner wished to drop the appeal and provided an affidavit from the Petitioner in support of same. (Attachment 5; see also Attachment 1, PCR App. p. 58). By Order dated January 13, 2009, the South Carolina Court of Appeals dismissed the appeal and issued the Remittitur to the Clerk of Court of Richland County. (Attachment 1, PCR App. p. 59).

On March 23, 2009, the Petitioner filed an application for post-conviction relief ("PCR"), with attachment, in which he raised the following claims verbatim:

1. Trial court deprived Applicant of due process and equal protection when it did not rule upon the pro se motion to have trl counsel relieved due to a conflict of interest and the interruptions that the trial counsel placed into the attorney/client privileges...
2. Counsel ineffective for not exercising Applicant's trial rights when counsel failed to prepare for trial and investigate trial matters, trial counsel ineffective when it interfered with the adverse process when counsel did not assist Applicant with understanding the evidence process as in having it explained to him;
3. Counsel ineffective when failed to disclose the Brady motion materials to him as counsel found the excuses not to do so, whereas the counsel filled the position as the solicitor when she decided to waive all of Applicant's personal rights to a trial and statutory rights to an evaluation to trial issues to his criminal case matters;
4. Counsel ineffective when failed to have the Applicant's co-defendant statements authenticated pursuant to the rules of evidence and knowing that in order for the Applicant to present evidence to the trial court in his favor it must be accordingly to the rules of evidence as applicable;
5. Counsel failed to file pre-trial and post trial motions such: pre-trial motion accordingly to S.C. Code Ann. § 17-19-20, and 30, for the purposes of having the indictments quashed, dismissed, and or charges reduced in the situated effects accordingly to the mandates as: S.C. Const. Art. I, § 11, State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005); U.S. v. Cotton, 535 U.S. 625, 122 S.Ct. 1781 (2002) = Challenges to its sufficiency must be made in accord. With § 17-19-90 (2003);
6. Counsel ineffective when she failed to examine the forensic result reports, failed to investigate the finding of the police investigation as to what the actual findings was from handprints, ect., and counsel failed to examine the time of death that the solicitor testified to and without counsel cross-examined on the records;
7. Counsel ineffective when she failed to get the Applicant a competency examination due to the first hand expressed emotional stresses he displayed towards her and accordingly to the statements she was given prior to the paperwork that was disclosed to her about the Applicant, counsel ineffective when she failed to follow the McNaughten mandates in the regards to § 17-24-10, 20, and 30, dictated by § 44-17-510, and 530 U.S. Supreme Court;

8. Trial counsel ineffective when failed to advise Applicant of his constitutional rights in re to Craig v. M.D., supra. rights..

9. Trial counsel ineffective for failures to visit with the Applicant on an appropriate basis/schedules due to the nature of the charges against him, the counsel was further ineffective when the counsel allowed the State to not assigned a co-counsel to the Applicant's case matters to be represented by;

10. Trial counsel ineffective when she did unauthorized communication with the Solicitor's office as in how she continued to keep the solicitor's office aware of all confidential filings that Applicant filed to the clerk up until the document that was filed by the Applicant requesting for the Clerk to contact the Solicitor for pro se filed matters to the Clerk of Court exposed to the Solicitor's office without the authorizations of it.
11. Trial counsel ineffective when she failed to expedite litigation accordingly to the criminal procedures and civil by exercising the Applicant's rights as applicable to his criminal case matters before the Fifth Circuit General Sessions Court, see as explained in regards to the provisions of the Rules of Professional Conduct, see Rule 407, SCACR, : Rule 3.2, and Rule 8.4:

(Attachment 1, PCR App. pp. 65-66) (errors in original).

The State made its return to the application on April 29, 2009. (Attachment 1, PCR App. pp. 75-78). Tristan M. Shaffer, Esq., represented the Petitioner in the PCR action. An evidentiary hearing was held November 18, 2011, before the Honorable L. Casey Manning. At the beginning of the hearing, PCR counsel Shaffer offered a verbal amendment to the PCR application to include two issues:

1. A due process violation based upon an unconstitutional trial tax; and,

2. Ineffective assistance of counsel based upon advice to plead to avoid trial tax.

(Attachment 1, PCR App. pp. 87-88).

The Petitioner and plea counsel, Gripp, testified. At the conclusion of the hearing, Judge Manning took the matter under advisement. (Attachment 1, PCR App. p. 166). By Order dated January 20, 2012, filed that same day, Judge Manning denied relief and dismissed the PCR application. (Attachment 1, PCR App. pp. 169-185).

The Petitioner appealed the denial of relief. Appellate Defender Dayne C. Phillips of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented the Petitioner on appeal. Appellate counsel Phillips filed a Johnson[3] Petition for Writ of Certiorari in the Supreme Court of South Carolina on November 13, 2012, and presented the following question:

Did the PCR court err in finding Petitioner knowingly, voluntarily, and intelligently pled guilty where Petitioner was improperly influenced into waiving his constitutional trial rights based on plea counsel's advice that Petitioner would receive a significantly harsher sentence if he exercised his right to a jury trial?

(Attachment 6, p. 2).

Appellate counsel Phillips also filed a petition to be relieved of appointment as, "[i]n his opinion seeking certiorari from the order of dismissal [was] without merit." (Attachment 6, p. 9).

By letter dated November 14, 2012, the Clerk of the Supreme Court of South Carolina advised the Petitioner of his right to file a pro se response to the petition and "raise and argue any issues [Petitioner] believe[d] the Court should consider in th[e] appeal." (Attachment 7). By letter dated April 5, 2013, appellate counsel Phillips filed the pro se ...


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