United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
SHIVA V. HODGES, Magistrate Judge.
Petitioner Tracy Alvin James is an inmate at the Evans Correctional Institution of the South Carolina Department of Corrections 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 14, 15]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by April 17, 2014. [ECF No. 16]. Petitioner filed a response on April 16, 2014, and an amended response on May 29, 2014. [ECF Nos. 18, 19].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
At trial, Petitioner's daughter ("Daughter") testified concerning the events of April 24, 2007. [ECF No. 14-1 at 23-33]. She reported Petitioner picked her up from her elementary school, where she was in the second grade, and took her to his home. Petitioner told her to go to his room, where he showed her pictures of naked women and directed her to take off her pants. Daughter testified that Petitioner took off his pants, laid on top of her, and put his private part on her private part. Later that afternoon, Petitioner walked Daughter to the home she shared with her mother.
The following evening, Daughter told her mother that she was hurting and had a blood stain in her panties. When Daughter reported what happened the prior day, her mother took her to the emergency room. Daughter was then transferred to the Care House in Florence, South Carolina, where she was interviewed. Following the report of the case manager from the Care House, Petitioner was arrested on April 26, 2007.
Petitioner was indicted for first degree criminal sexual conduct ("CSC") with a minor by the Williamsburg County grand jury during the August 2007 term of court. [ECF No. 14-11 at 7-8 (2007-GS-45-183)]. Petitioner was represented by W. Legrand Carraway, Esq., and proceeded to a jury trial on October 18, 2007, before the Honorable Clifton Newman, Circuit Court Judge. [ECF No. 14-1 at 3, et seq.]. After the prosecution and the defense had both rested, but before closing arguments, Petitioner pled guilty before Judge Newman to criminal sexual conduct in the second degree ("CSC-2nd"). [ECF No. 14-3 at 30-44 at 3]. Judge Newman sentenced Petitioner to 150 months, in accordance with the State's recommendation. Id.; ECF No. 14-3 at 44-45. Petitioner did not file a direct appeal. [ECF No. 14-3 at 45; ECF No. 14-11 at 3 (sentencing sheet).].
Petitioner filed an application for post-conviction relief ("PCR") on April 29, 2008 [ECF No. 14-4], and an amended PCR application on July 14, 2008 [ECF No. 14-3 at 47-57], asserting claims of ineffective assistance of counsel and involuntary guilty plea. A PCR evidentiary hearing was held before the Honorable R. Ferrell Cothran, Jr., Circuit Court Judge, on October 27, 2009, at which Petitioner and his counsel, Verdell Barr, Esq., appeared. Id. at 65-115. On December 22, 2009, Judge Cothran signed an order of dismissal. Id. at 117-126.
Petitioner timely filed a notice of appeal and was represented by Appellate Defender Wanda H. Carter of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who filed a Johnson petition for writ of certiorari in the South Carolina Supreme Court on or about November 29, 2010, raising the following issue: "The PCR court erred in dismissing petitioner's claim that he did not voluntarily and intelligently waive his right to a direct appeal in the case." [ECF No. 14-6 at 3]. Petitioner's counsel asserted that the petition was without merit and requested the court relieve her as Petitioner's counsel. Id. at 7. Petitioner filed a pro se brief on or about January 12, 2011 [ECF No. 14-7 at 1-13]. On November 10, 2011, Petitioner filed an amended pro se brief, in which he raised the following issues:
1) Did the Lower Court erred in improperly not finding that counsel was ineffective for failing to call witness and withholding DSS Report into evidence that prejudice the petitioner defense to effective assistance of counsel?
2) Did Counsel on Appeal failed to raise nonfrivilous issue on Appeal for which the petitioner was prejudiced by counsel's unsatisfactory representation? [ECF No. 14-8 at 3] (errors in original).
By order filed August 15, 2013, the South Carolina Court of Appeals denied the petition for certiorari. [ECF No. 14-9]. The remittitur issued on September 5, 2013. [ECF No. 14-10]. Petitioner filed this federal petition for a writ of habeas corpus on December 13, 2013. [ECF No. 1-3 at 1].
Petitioner raises the following grounds in his petition:
Ground One: Mr. James was Denied due Process of Law under the 14th Amendment to the United States Constitution
Supporting Facts: During Mr. James trial my attorney refused to call DSS witteness to testify in which DSS Did an Investigation on Mr. James the outcome was Mr. James was not the perpetrator, See DSS report & page 69 of the Trial Transcript, & Exhibit B DSS letter Head
Ground Two: Mr. James was denied due process of Law under the 14th Amendment to the United States Constitution
Supporting Facts: My Attorney at my Trial refuse to call the PCN who examined my daughter for Sexual Abuse in which her examination came back Negative See Exhibit C.
Ground Three: Mr. James was denied due Process of Law under the 14th Amendment to the United States Constitution
Supporting Facts: During Mr. James trial my Attorney let me be charged with 2 indictment, Criminal Sexual Conduct With A Minor 1st degree & CSCWAM 2nd degree with the same child which the elements are different. See Exhibit E&F
Ground Four: Mr. James was denied due process of Law under the 14th Amendment to the United States Constitution.
Supporting Facts: During Mr. James trial my Attorney did not ask for the prosecutor or the trial judge to step down from this trial The prosecutor Mr. Saab and the trial Judge Mr. Clifon Newman were Law Partners in Saab & Newman Law Firm a conflict of interest
[ECF No. 1-1 at 5-10] (errors in original).
A. Standard for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific ...