United States District Court, D. South Carolina, Charleston Division
OPINION & ORDER
TIMOTHY M. CAIN, District Judge.
This matter is before the court on Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge. On November 11, 2014, Magistrate Judge Bristow Marchant filed a Report and Recommendation recommending Respondent's Summary Judgment Motion (ECF No. 19) be granted and the petition be dismissed with prejudice. (ECF No. 33). On January 13, 2015, Petitioner timely filed objections to the Report (ECF No. 43) and a motion for an evidentiary hearing and to appoint counsel (ECF No. 44).
The Magistrate Judge makes only a recommendation to the court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
I. Background/Procedural History
In June 2008, Petitioner was indicted for first degree burglary and attempted armed robbery. (ECF No. 20-1 at 5). Petitioner was represented by Everett W. Bennett, Jr. ("Bennett"). As part of a negotiated plea, Petitioner pled guilty to the burglary charge and was sentenced to a negotiated sentence of 18 years imprisonment, and the State nolle prosed the robbery charge and withdrew its intent to seek a sentence of life without parole. Id.
The underlying facts were recited during the guilty pleas as follows: Petitioner and three co-defendants entered the residence of David Pinckney (Pickney") at night armed with a 9 mm pistol. Pinckney, who was armed with an AK47, shot twice at the intruders. (ECF No. 20-1 at 16). Police officers found Petitioner shot twice a short distance away from the residence and a gun and a mask nearby him. Id. Petitioner gave a video-taped confessed as to his involvement to police. (ECF No. 20-1 at 17, 95).
Prior to the guilty plea, Bennett disclosed to Petitioner that he had represented the victim, Pinckney, on an unrelated criminal charge years earlier in 2001. Bennett filed an affidavit with the state circuit court in which he stated that he had previously represented Pinckney on unrelated charges and that he felt it would be a conflict of interest to continue representing Petitioner. (ECF No. 27-1 at 1). The circuit court, however, found that Bennett's prior representation of Pinckney in 2001 was not a conflict. (ECF No. 27-1 at 2). Bennett then informed Petitioner that if Petitioner was still uncomfortable with Bennett as his counsel, Petitioner could hire another attorney to represent him. (ECF No. 27-1 at 2). Petitioner, however, proceeded with Bennett as his counsel.
Petitioner did not file a direct appeal and filed for post-conviction relief ("PCR") in 2009, raising three issues: 1) ineffective assistance of counsel; 2) involuntary plea; and 3) due process violation. (ECF No. 20-1 at 25). After a hearing, the PCR court denied Petitioner relief. (ECF No. 20-1 at 120-131). Petitioner appealed raising the following issues: 1) whether plea counsel was ineffective for failing to file a direct appeal; 2) whether the PCR court erred in finding Petitioner's plea was knowing and voluntary when Petitioner questioned counsel's loyalty from a conflict of interest; and 3) whether the trial court abused his discretion in failing to find a conflict of interest based upon plea counsel's prior representation of the victim. (ECF No. 20-2 at 3; 20-3 at 2). The South Carolina Supreme Court denied Petitioner's writ of certiorari and the remittitur was sent down on November 5, 2013. (ECF Nos. 20-4; 20-5).
In this habeas petition, Petitioner raises the following issues, quoted verbatim:
Ground One: Whether plea counsel was effective when he failed to file a direct appeal.
Supporting Facts: Petitioner pled guilty on January 27, 2009 to 1st Degree Burglary. Petitioner requested that his guilty plea be appealed because plea counsel had a conflict of interest. Petitioner delivered the request to a jail official (Captain Frazier). Capt. Frazier testified to delivering Petitioner's request for an appeal to plea counsel. Counsel's failure to perfect a Notice of Appeal upon request of Petitioner was a failure to provide the effective assistance of counsel guaranteed by the Sixth Amendment and the right to a direct appeal from conviction.
Ground Two: Whether the PCR Judge erred in finding Petitioner's guilty plea was knowing and voluntary where Petitioner questioned counsel's loyalty due to a conflict of interest.
Supporting Facts: The PCR Court found Petitioner failed to present any evidence and failed to make specific findings of fact and conclusions of law, as required by law, where Petitioner introduced evidence of the conflict of interest and testified "I don't feel as though he was going to represent me to his best ability." The record was sufficient to require findings of fact and conclusions of law, to include plea counsel's affidavit of conflict and testimony before the PCR Court.
Ground Three: Whether the trial judge abused his discretion in failing to find a conflict of interest that violated the Sixth Amendment where counsel represented the ...