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Dunn v. Bush

United States District Court, D. South Carolina, Charleston Division

February 18, 2015

Islam Dunn, Petitioner,
v.
Warden Michael Bush, Respondent.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

MARY GORDON BAKER, Magistrate Judge.

The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. ยง 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 22; see also Dkt. No. 21.)

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.

The Petitioner brought this habeas action on or about June 5, 2014. (Dkt. No. 1.) On October 20, 2014, Respondent filed a Motion for Summary Judgment. (Dkt. No. 22; see also Dkt. No. 21.) By order filed October 21, 2014, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 23.) Petitioner filed a Response in Opposition to the Motion for Summary Judgment on or about November 5, 2014. (Dkt. No. 25.)

PROCEDURAL HISTORY

The Petitioner is currently confined at Lee Correctional Institution of the South Carolina Department of Corrections ("SCDC"). In November of 2009, the Aiken County Grand Jury indicted Petitioner for murder and attempted armed robbery. (R. at 92-97.) Petitioner was represented by Aaron G. Walsh, Esquire. (See R. at 1.) On September 16, 2010, Petitioner pled guilty to voluntary manslaughter and attempted armed robbery before the Honorable Doyet A. Early, III. (See R. at 1-16.) Petitioner was sentenced to twenty years, concurrent, on each conviction on September 20, 2010. (R. at 17-36.)

Petitioner, through attorney Walsh, filed a Notice of Appeal. (Dkt. No. 21-1.) Mr. Walsh filed a Rule 203(B) Explanation, wherein Mr. Walsh stated that although he "does not have a good faith basis to believe that any issues are properly before the Court of Appeals, and [he] did not object to the sentence or file a motion to reconsider the sentence, " he filed the appeal at the request of Petitioner. (Dkt. No. 21-2.) In an Order filed October 26, 2010, the South Carolina Court of Appeals dismissed the appeal. (Dkt. No. 21-3.) The Court of Appeals issued the remittitur on November 12, 2010. (Dkt. No. 21-4.)

Petitioner filed an application for post-conviction relief ("PCR") on January 19, 2011. (R. at 39-45.) The following questions and answers appeared in his PCR application (verbatim):

10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) I feel that I've been forced to take a plea
(b) I been verbally threaten in if I didn't take plea I would get life
11. State concisely and in the same order the facts which support each of the grounds set out in (10):
(a) My lawyer was working with the State
(b) The threat came from the judge

(R. at 41.)

On January 26, 2012, an evidentiary hearing was held before Judge Edgar W. Dickson. (R. at 51-84.) Petitioner was present and represented by Michael W. Chesser, Esquire. (See R. at 51.) In a written order dated May 22, 2012, Judge Dickson denied the application for post-conviction relief and dismissed the petition. (R. at 86-91.)

Petitioner, through his attorney Breen Richard Stevens, Esquire, of the South Carolina Commission on Indigent Defense, filed a Johnson Petition for Writ of Certiorari on February 15, 2013. (Dkt. No. 21-5.) [1] Through counsel, Petitioner raised the following issue:

Whether Petitioner's guilty plea was knowingly, intelligently, and voluntarily made where Petitioner indicated he was threatened that he would get a life sentence if he went to trial, and where Counsel admitted to telling Petitioner he would likely receive a life sentence if he went to trial?

(Dkt. No. 21-5 at 3 of 13.) Mr. Stevens also filed a petition to be relieved as counsel. (Dkt. No. 21-5 at 12 of 13.) Petitioner filed a pro se response to the Johnson petition, wherein he raised the following issues:

1. Issue: forced guilty plea. Re: forced to plead guilty by atty: atty allowed solicitor to use an intimidation tool on his client in pressuring him to plead guilty.
2. Issue: judicial misconduct, judge make threatening remarks to applicant when expressing a desire to exercise his rights guaranteed by the constitution for trial judge then make it known that a harsh sentence would be imposed if applicant did not plead guilty.
[3.] Ineffective assistance of appellate counsel by trial see rules 208 SCACR, 207 SCACR, 203 SCACR.

(Dkt. No. 21-6.) In an order filed January 23, 2014, the South Carolina Court of Appeals denied the petition and granted counsel's request to withdraw. (Dkt. No. 21-7.) The matter was remitted to the lower court on February 11, 2014. (Dkt. No. 21-8.)

Petitioner then filed the instant habeas petition, wherein he raised the following grounds for review (verbatim):

Ground One: Petitioner's fifth, sixth, and fourteenth U.S. Constitutional Amendments were violated due to an involuntary plea.
Supporting Facts: My plea counsel allowed the solicitor to use an intimidation tactic into pressuring me to plead guilty by persuading my dad (co-defendant) to coerce me to plead guilty against my will.
Ground Two: Petitioner's fifth, sixth, and fourteenth U.S. Constitutional Amendments were violated due to trial counsel's failure to object to judicial misconduct.
Supporting Facts: Plea judge made threatening remark about me to my plea counsel when I expressed a desire to proceed with trial. Judge then made it known that a harsh sentence would be imposed if I did not plead guilty. Judge told my lawyer that if I accepted the plea deal I was gonna receive no less than 15 years and no more than 25 years. However, if I elected to proceed with trial and lose, then I wouldn't see daylight again.
Ground Three: Petitioner's fifth, sixth, and fourteenth U.S. Constitutional Amendments were violated due to Ineffective ...

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