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Whittaker v. McKie

United States District Court, D. South Carolina

December 22, 2014

Robert Whittaker, Petitioner,
v.
Bernard McKie, Respondent.

REPORT AND RECOMMENDATION

PAIGE J. GOSSETT, Magistrate Judge.

Petitioner Robert Whittaker, a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 22.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Whittaker was advised of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 23.) Whittaker filed a response in opposition. (ECF No. 25.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondent's motion for summary judgment should be granted and Whittaker's Petition denied.

BACKGROUND

Whittaker was indicted in June 2006 in Spartanburg County for trafficking in cocaine (06-GS-42-2409).[1] (Supp. App. at 4-5, ECF No. 21-13 at 6-7.) Whittaker was represented by James Hatcher, Esquire, and on November 2, 2006 was tried and found guilty as charged. (App. at 158, ECF No. 21-12 at 160.) The circuit court sentenced Whittaker to twenty-five years' imprisonment. (App. at 161, ECF No. 21-12 at 163.) Whittaker moved for a new trial based upon an alleged lack of evidence, which was denied by order issued December 7, 2006. (ECF No. 21-1 at 4.)

Whittaker timely appealed. However, his appellate counsel, Eleanor Duffy Cleary, Esquire, filed a letter with the Clerk of Court on May 9, 2007 at Whittaker's request that included an affidavit from Whittaker indicating he wanted to withdraw his appeal. (ECF No. 21-3.) The South Carolina Court of Appeals issued an Order of dismissal and remittitur on May 11, 2007. (ECF No. 21-4.)

Whittaker filed a pro se application for post-conviction relief ("PCR") on March 28, 2007 in which he raised the following claims:

(a) Ineffective assistance of Counsel at trial
(b) Spartanburg County lack Subject Matter Jurisdiction
(c) Constitution Violation 6th Amendment[.]

(See Whittaker v. State of South Carolina, 07-CP-42-1178; App. at 163-69, ECF No. 21-12 at 165-71.) The State filed a return. (App. at 170-75, ECF No. 21-12 at 172-76.) On July 29, 2009, the PCR court held an evidentiary hearing at which Whittaker appeared and testified and was represented by Lara P. Harrill, Esquire. At the hearing, Whittaker, through counsel, amended his application to include a request for a belated direct appeal pursuant to White v. State .[2] By order filed September 30, 2009, the PCR found that Whittaker was entitled to a belated direct appeal pursuant to White, and declined to address Whittaker's remaining PCR issues until the belated appeal was exhausted. (App. at 209-10, ECF No. 21-12 at 211-12.) The State filed a motion to alter or amend pursuant to Rule 59(e) in which it asked to court to alter its ruling with respect to the belated direct appeal based on Whittaker's direct appeal and subsequent withdrawal, and also requested that the court address Whittaker's remaining PCR issues. (App. at 211-13, ECF No. 21-12 at 213-15.) On December 14, 2009, the PCR court held a hearing on the Rule 59(e) motion at which Whittaker appeared and continued to be represented by Lara P. Harrill, Esquire. The court issued an order on May 17, 2010, denying and dismissing Whittaker's PCR application with prejudice. (App. at 214-22, ECF No. 21-12 at 216-24.)

On appeal, Whittaker was represented by Elizabeth A. Franklin-Best, Esquire, who filed a petition for a writ of certiorari on Whittaker's behalf that presented the following question:

Did trial counsel render ineffective assistance of counsel when he did not timely move to quash Whittaker's indictments when the State failed to abide by South Carolina Rules of Criminal Procedure, Rule 3(c) that an indictment be presented to the grand jury within 90 days after receipt of an arrest warrant?

(ECF No. 21-8.) The State filed a return. (ECF No. 21-9.) On September 26, 2013, the South Carolina Court of Appeals issued an order denying Whittaker's petition for a writ of certiorari. (ECF No. 21-10.) The remittitur was issued October 30, 2013. (ECF No. 21-11.) This action followed.

FEDERAL HABEAS ISSUES

Whittaker's federal Petition for a writ of habeas corpus raises the following issues, as summarized by the respondent:

I. Ineffective assistance of counsel

a. Counsel failed to adequately communicate with me concerning court procedures and I had to research the law on my own.
i. Counsel should have advised Applicant that the state had 90 days to indict me after the arrest under S.C. Criminal Procedure Rule 3 and had the charges ...

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