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Ramirez v. Warden, Kershaw Correctional Institution

United States District Court, District of South Carolina, Charleston Division

January 28, 2015

Miguel Ramirez, Petitioner,
v.
Warden, Kershaw Correctional Institution, Respondent.

ORDER

Richard M. Gergek, United States District Judge

This matter is before the Court on the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 56), recommending Respondent's Motion for Summary Judgment be granted. For the reasons stated below, the Court ADOPTS the R & R in full. Accordingly, Respondent's Motion for Summary Judgment, (Dkt. No. 42), is GRANTED.

Miguel Ramirez ("Petitioner"), a prisoner at the Kershaw Correctional Institution proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming ineffective assistance of counsel. Pursuant to 28 U.S.C. 636(b) and Local Civil Rule 73.02(B)(2) DSC, the matter was automatically referred to a Magistrate Judge for pretrial proceedings. Respondent filed a Motion for Summary Judgment (Dkt. No. 42) and a Return and Memorandum to the Petition (Dkt. No. 43). The Magistrate Judge issued the present R & R, recommending that the motion be granted and Petitioner timely filed an objection to the R & R on December 29, 2014 (Dkt. No. 58).

I. Background

Petitioner was indicted in January 2002 for felony driving under the influence resulting in great bodily injury and felony driving under the influence resulting in death. At trial, Petitioner was represented by O. Lee Sturkey, and on May 3, 2002, entered an Alford[1] plea to the charges.[2] On August 5, 2002, Petitioner was sentenced to twenty-five years imprisonment for felony driving under the influence resulting in death and a consecutive sentence of fifteen years imprisonment for driving under the influence resulting in great bodily injury. (R&R at 1-2). Petitioner timely appealed and was represented by Daniel T. Stacey, Appellate Defender, who filed an Anders [3] brief on Ramirez's behalf that presented the following question:

Whether the court erred in sentencing appellant to the maximum available sentence where he had pleaded guilty and expressed remorse, since sentences of this type will discourage guilty pleas and up the burden on an already swamped system?

(Id. at 2). Ramirez filed a pro se response to the Anders brief raising grounds of ineffective assistance of counsel and that his guilty plea was involuntary and unknowing. (Id.). On May 5, 2004, the South Carolina Court of Appeals filed an order dismissing Ramirez's appeal. (Dkt. No. 43-5). The remittitur was issued on June 8, 2004. (Dkt. No. 43-6).

On June 3, 2004, Petitioner filed a pro se application for post-conviction relief ("PCR") raising five issues: (1) ineffective assistance of counsel, (2) due process violation of law, (3) involuntary and unknowing guilty plea, (4) subject matter jurisdiction, and (5) "conflict of interest with the interpreter from the she[]riff s office when the sheriffs office was going against the defendant." (R&R at 3). An evidentiary hearing was held on March 17, 2008 at which the Petitioner, represented by Tommy A. Thomas, appeared and testified. By order filed August 11, 2009, the PCR petition was denied and dismissed with prejudice. Id.

On appeal, Petitioner was represented by Appellate Defender Elizabeth A. Franklin-Best. Appellate counsel filed a petition for writ of certiorari with the Supreme Court of South Carolina that presented the following issues:

I. Did plea counsel render ineffective assistance of counsel for failing to communicate and prepare the case with his client when he failed to obtain a proper Mam speaking interpreter, for use during discussions with his client, and when he allowed him to plead guilty, as provided for by S.C. Code Ann. §17-1-50(1976)?
II. Was petitioner's guilty plea involuntarily [sic] because petitioner could not understand the proceedings against him?

(Dkt. No. 43-7). On June 11, 2013, the South Carolina Court of Appeals issued an order denying Ramirez's petition for a writ of certiorari (Dkt. No. 43-9) and the remittitur was issued July 1, 2013. (Dkt. No. 43-10). This action followed.

II. Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v Weber, 423 U.S. 261, 270-271 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions of the R & R to which objection is made. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed. R. Civ. P. 72(b). Where the Petitioner fails to file specific objections to the Report and Recommendation, this Court "must 'only ...


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