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 Respondent's motion for summary judgment. [Doc. 19.] Petitioner, proceeding pro se, 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 December 16, 2013. [Doc. 1.] On April 30, 2014, Respondent filed a motion for summary judgment and a return and memorandum to the Petition. [Docs. 18, 19.] On May 1, 2014, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 20.] On May 14, 2014, Petitioner filed a response in opposition. [Doc. 22.]
Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted and the Petition be denied.
Petitioner is presently confined in the South Carolina Department of Corrections at Lee Correctional Institution pursuant to orders of commitment of the Laurens County Clerk of Court. [Doc. 1.] In December 2009, Petitioner was indicted for murder and possession of a weapon during the commission of a violent crime. [App. 90-91; Doc. 18-3.] On June 22, 2010, represented by Michael W. Barcroft ("Barcroft"), Petitioner entered a guilty plea to the lesser included offense of voluntary manslaughter. [App. 1-16.] As part of the plea negotiations, the State agreed to dismiss the possession of a weapon during the commission of a violent crime charge. [App. 2.] Petitioner was sentenced to thirty years imprisonment, consistent with the plea negotiations. [App. 15.] No direct appeal was filed.
Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on April 27, 2011. [App. 17-44.] Petitioner alleged he was being held in custody unlawfully based on the following grounds, quoted substantially verbatim:
Ground #1: Applicant's case counsel failed to have him examined by a psychiatris[t] to determine what Applicant's mind stages was at the time he was involved in the incident(s).
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... Applicant was denied the rights to effective assistance from case counsel that is mandatory by 5th-6th and 14th Amend's. of the U.S. Const. And guaranteed by the S.C. Const. Art's 1, §§§§ 3; 9; 11 and 14.
... Case Counsel was ineffective in every stages of the case and his assistances was unreasonable and prejudicial pursuant to case cite Strickland v. Washington, 466 U.S. 668 (1984); see Case Counsel was ineffective in and during his representations as the following but not limited to the acts an omissions:
1. Case Counsel failed to get an examination by a psychiatric done on Applicant which did abridged his Fifth Amend. Rights.
2. Case Counsel failed to investigate, examine, develop, and present all available evidence that are relevant to case and due to the Case Counsel failures to prepare case Applicant's sentence is unreliable and unfair.
3. Case Counsel failed to present all necessary legal facts to the Court for a determination for juvenile waiver as a minor to an adult adjudication for charges as convicted for.
4. Case Counsel was ineffective when he coerced Applicant to plead guilty to thirty (30) years when the plea deal was for not more than twelve (12) years based on the counsel own statements made to Applicant and family members that of which is case in facts made the based on the outcomes of the Applicant's Codefendants sentences imposed by the Court and the victim's prior records.
5. Applicant's guilty plea was not voluntary and intelligently made due to the counsel failures to advise him of the nature of charge and his abilities of waiving his constitutional rights as he did not benefited from his waivers that must place him in the better positions to receive lesser punishments by the legal influences and the advised expectations, to a sentence in ranges of ten (10) to twelve (12) years.
Ground #2: Applicant's Case Counsel was ineffective when he did not conduct an investigation nor did Counsel represented the truth about when he stated that he had hired a private investigator to investigate the case. Counsel failures resulted in the overlookings to the misstated facts in statements given in affidavits by the Deputies Witnesses and the Solicitor's Office Counsel, as this counsel was manipulated by the hand of the Solicitor Office Counsel didn't care about reaching out to find the truth that was relevant to case so that counsel could have articulated an objective reasonable strategy to avoid being ineffective assistance, and by the mandatory language in the ABA standards counsel must present to the case record that a minimum of adequate and accurate representation was given as required to the Defendant in his/her case, and here in case at bar counsel done no more than to conspire with the adverse component to get a plea of guilt to be done and nothing more.
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Ground #3: Case Counsels for Applicant failures to conduct pre-hearing invest. to procure independent information for Applicant's juvenile transfer and waiver process and hearing from Family Court to the Court of General Sessions, as it being violative of his guaranteed rights of the S.C. Const. Art. I., §§
3 and 14, pursuant to: S.C. Code Ann. § 20-7-740, "as amended, " and U.S. Const. 6th and 14th Amend. Counsels failures placed a dispute to Applicant giving waivers of jurisdiction and in Applicant's case matter, as the hearing discloses. Applicant's statutory rights as a juvenile were critically important because the Juvenile Court is vested with the original and exclusive jurisdiction of minors, therefore, Applicant then minor of 16 and or 15 yrs. old was by statute entitled to certain procedures and benefits regardless of his race, social status and records had Counsels were knowled[gea]ble of S.C. laws for juveniles and were not engaged into unprofessional conducts it would have been validated that his statutory rights were enforcable by Counsel(s). Applicant's waivers does not measure up to the essentials of due process and fair treatments as it are accordingly to settled laws and mandates.
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Ground #4: Applicant plead guilty to charges by Case Counsel advise and Applicant plead guilty expecting 12 years sentence but instead the Court imposed a 30 years sentence and it should not have because by Counsel own statements he coordinated the 12 years plea deal with the Solicitor's Office as it being in the exchanged for my plea of guilt and reducted charge and based on the deceased vic. being the aggressor of the offense as well, had Applicant known that he was being deceived by his own Counsel he would not have plead guilty to no 30 years. Counsel made the same convincing statements in regards to the 12 years plea to the Applicant's Mother and other family members whom was involved with his wellbeings. Applicant also places to records that he received a 30 yrs. Sentence when it is evidence that the records shows co-defendants received sentences so lesser or no sentence at all.
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Ground #5: Applicant incorporates issue Four and Five having the legal authorities ground 4 to represent the allegation that are contended to giving all other inclusions to the unreliabilities of the unfulfilled agreements to plea, and the included legal authority as it is cited.
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Ground #6: Applicant Case Counsel was ineffective assistance when he did not exercise Applicant's rights to a preliminary hearing for the purposes of rebutting all misstated facts stated in the affidavits, and by Counsel failures it did made a misopportunity because Case Counsel is full aware of what a preliminary hearing serves to a Defendant, it gives Counsel for Applicant a chance to see the weakness of the Solicitor to present his/her case to the Grand Jury. So therefore as Counsel have stated that preliminary hearing are for self-serving.
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Ground #7: Case Counsel actually kept the Conflicts indulged and Counsel had the supports of the Court and it left Applicant no resource to turn to other than the Counsel for Displinary Hon. Lesley M. Coggiola, now as was shown see motion filed to have Counsel relieved and have other counsel appointed. Applicant makes his claims by an evidence that only shows a type of fraud by Counsel, when the was paid to hire an investigator and as he stated that he did and by the records of the law firm he was showed other-wise constitutes an act of fraud. Secondly, Counsel use the matter that Applicant was a juvenile to be less respectful and attentive to him in handling his Case, and third, Case Counsel is shown by the jailhouse telephone record to be ignoring Applicant even when it was attempted to make contacts with his office leaving Applicant to believe that the counsel had no interest in case and nore did counsel had the desires to explore as he should the case by all circumstances in the legal aspects; by Counsel doing an inducements to initiate conflicts in representing Applicant violated his Constitutional rights.
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[ Id. ] On June 15, 2011, Petitioner amended his PCR application through counsel, Rodney Richey ("Richey"). [App. 45-48.] In the amendments, Petitioner asserted plea counsel was ineffective in the following ways:
1. My defense attorney failed to conscientiously discharge his professional responsibilities while he was handling my case.
2. My defense attorney failed to effectively challenge the arrest and seizure of Applicant.
3. My defense attorney failed to act as my diligent, conscientious advocate.
4. My defense attorney failed to give me his complete loyalty.
5. My defense attorney did not have my best interest in mind while he was supposed to be investigating and preparing my case.
6. My defense attorney failed to serve my cause in good faith.
7. My defense attorney neglected the necessary investigations and the preparation of my case.
8. My defense attorney did not do the necessary factual investigations on my behalf.
9. My defense attorney did not do the necessary legal research.
10. My defense attorney did not conscientiously gather any information to protect my rights.
11. My defense attorney did not try to have my case settled in a matter that would have been to my best advantage.
12. My defense attorney did not advise me of all my rights or take any of the actions that were necessary to protect preserve them; knowing that I was not versed in the law.
13. My defense attorney, knowing I was illiterate in the law, never properly ascertained whether or not I actually understood or comprehended all of the issues that were involved in my case.
14. My defense attorney never properly consulted with me or kept me informed with what was going on as far as my case was concerned.
15. My defense attorney never explained to me or discussed with me any of the elements of the crime charged.
16. My defense attorney never made any attempt to ascertain whether or not I actually knew what the elements of the crime charged were or whether or not I understood exactly what the term "criminal" element" actually meant.
17. My defense attorney never explained to me or discussed with me how the elements of the crime charge and the evidence that the prosecution planned to introduce into evidence against me related to one another and did not discuss how the sentencing would be done especially as it related to the elements of the crime as in State V. Bovd.
18. My defense attorney never informed me of any of the defenses that were available to me.
19. My defense attorney never intended to offer any defense to the court on my behalf.
20. My defense attorney never explained to me or discussed with me any kind ...