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Smalley v. Cohen

United States District Court, D. South Carolina

December 17, 2014

Terry Mikell Smalley, #336447, Petitioner,
LaVern Cohen, Warden, Respondent


Kaymani D. West, United States Magistrate Judge.

Terry Mikell Smalley (" 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. 24, 25. On August 4, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 26. After receiving two continuances, on December 9, 2014, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 39. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 25, be granted.

I. Background

Petitioner is currently incarcerated in the Ridgeland Correctional Institution (" RCI") of the South Carolina Department of Corrections (" SCDC"). ECF No. 1 at 1. In 2009, Petitioner was indicted at the January term of the Aiken County Grand Jury for two counts of lewd act upon a child (2009-GS-02-67, 2009-GS-02-72). App. 17-22.[1] On August 10, 2009, Petitioner pleaded guilty to both charges before the Honorable J. Michael Baxley. App. 1-17. During his plea, Justin Mims, Esquire, represented Petitioner, and Rochelle Oldfield appeared on behalf of the State. Id. Judge Baxley sentenced Petitioner to fifteen years for the first count and one year for the second count to be served consecutively. App. 15. Petitioner did not file a Notice of Appeal.

II. Procedural History

On March 17, 2010, Petitioner filed an application for Post-Conviction Relief (" PCR"), alleging the following claims:

(a) Ineffective Assistance of Trial/Plea [and maintaining that counsel] did not inform full consequence of [his] plea;

(b) Trial/Plea Counsel Failure to file Notice of Appeal-Rule 203 [and maintaining that counsel] did not inform [him] of [his] right to appeal within (10) days.

App. 25.The State filed a Return to Petitioner's Application on July 21, 2010. App. 30-33. Thereafter a motions hearing convened on January 13, 2011, before the Honorable Doyet A. Early. App. 34-52. Petitioner was present and represented by Attorney Charles C. Mayers, and Assistant Attorney General Mary S. Williams appeared on behalf of the State. See id. After the hearing, the PCR court denied and dismissed Petitioner's PCR Application with prejudice on March 24, 2011, making the following findings of fact and conclusions of law:

This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility and weigh their testimony accordingly. Set forth below are the relevant findings of fact and conclusions of law as required pursuant to S.C. Code Ann. § 17-27-80.

Ineffective Assistance of Counsel/Involuntary Guilty Plea

The Applicant alleges he received ineffective assistance of counsel. In a PCR action, " [t]he burden of proof is on the applicant to prove his allegations by a preponderance of the evidence." Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002) (citing Rule 71.1(e), SCRCP). Where ineffective assistance of counsel is alleged as a ground for relief, the Applicant must prove that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692 (1984); Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985).

The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment Butler, Id. The Applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).

First, the Applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its " reasonableness under professional norms." Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland, supra). Second, counsel's deficient performance must have prejudiced the Applicant such that " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. " A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland). With respect to guilty plea counsel, the Applicant must show that there is a reasonable probability that, but for counsel's alleged errors, he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

To find a guilty plea is voluntarily and knowingly entered into, the record must establish the applicant had a full understanding of the consequences of his plea and the charges against him. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969); Dover v. Slate, 304 S.C. 433, 405 S.E.2d 391 (1991). In determining guilty plea issues, it is proper to consider the guilty plea transcript as well as evidence at the PCR hearing. Harris v. Leeke, 282 S.C. 131, 318 S.E.2d 360 (1984).

An Applicant who enters a plea on the advice of counsel may only attack the voluntary and intelligent character of the plea by showing that trial counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for trial counsel's errors, the defendant would not have pled guilty, but would have insisted on going to trial, Roscoe v. State, 310 S.C. 6, 546 S.E.2d 417 (2001); Richardson v. State, 310 S.C. 360, 426 S.E.2d 795 (1993). Given Applicant's burden of proof and the analysis to be applied to this claim, the Applicant's claim of involuntary plea is, in essence, a claim of ineffective assistance of counsel, and it will be treated as such.

Involuntary Plea

Applicant asserts that Counsel did not apprise him of his constitutional right to a jury trial. Counsel testified that he informed Applicant how a trial would proceed. Counsel stated that through this explanation, Applicant's trial rights were touched on. The plea court also provided a thorough explanation of these rights in clear language during the plea colloquy. (Tr. p. 5, line 21 - p. 9, line 21.) Based on Counsel's testimony and the plea transcript, I find that Applicant has failed to establish that his plea was involuntary due to any lack of understanding of his right to a jury trial.

Applicant also stated that he was threatened with a sentence of twenty-five (25) years to life. Counsel explained that Applicant was also charged with three (3) counts of Criminal Sexual Conduct (1stDegree) . A sentence of twenty-five (25) years to life is the sentence for Criminal Sexual Conduct (1stDegree). S.C. Code § 16-3-655(C)(1). Therefore, Applicant was not " threatened" but rather Applicant was correctly informed of the potential sentence he faced at trial. Counsel has a duty to inform his client of the potential consequences of a trial. Over the course of plea negotiations, Counsel eventually secured the plea offer, which Applicant accepted, wherein the counts of Criminal Sexual Conduct (1st Degree) were nolle prossed . Applicant had a clear understanding of the sentence he faced as a result of his plea. (Tr. p. 3, lines 16-19; p. 6, lines 12-23.) Therefore, I find Applicant has failed to demonstrate any error in this regard.

Applicant further claimed that his attorney told him what to say at his plea. Counsel flatly denied telling Applicant how to answer the questions. Based on my observations of the witnesses and a thorough review of the plea transcript, I find Counsel's testimony to be credible and find Applicant's testimony lacking credibility. Therefore, I find that Applicant has failed to carry his burden.


At the hearing, the Applicant alleged that he was denied effective assistance of counsel when trial counsel failed to inform him of his right to appeal his guilty plea and requested a belated appeal pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974).

This Court agrees that the allegation that the Applicant was denied a direct appeal is meritorious. Where the post-conviction relief judge determines that the applicant did not freely and voluntarily waive his or her appellate rights, the applicant may petition the South Carolina Supreme Court for review of direct appeal issues pursuant to White v. State, See Rule 243, SCACR; Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).[1]

The Court affirmatively finds that the Applicant did not knowingly and voluntarily waive his right to a direct appeal. The Court concludes that the Applicant is entitled to a belated review of his conviction(s). A petition for belated review pursuant to White v. State can remedy the Applicant's lack of a direct appeal.

Other Allegations

No other allegations were raised at the PCR hearing. Therefore, any additional allegations are deemed waived because no evidence was presented.


This Court finds that the grant of a belated direct appeal is proper. This Court further finds and concludes that the Applicant has not established any constitutional violations or deprivations that would require this court to grant his application. Therefore, this application for post conviction relief must be denied and dismissed with prejudice.

This Court advises Applicant that he must file a notice of intent to appeal within thirty (30) days from the receipt of this Order to secure the appropriate appellate review. His attention ...

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