United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
MARY GORDON BAKER, Magistrate Judge.
The Petitioner, a state prisoner proceeding pro se, seeks habeas relief for state convictions pursuant to 28 U.S.C. § 2254. This matter is before the Court upon Respondent's Motion for Summary Judgment. (Dkt. No. 17; see also Dkt. No. 16.)
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 July 21, 2014. (Dkt. No. 1 at 49 of 49.) On October 31, 2014, Respondent filed a Motion for Summary Judgment. (Dkt. No. 17; see also Dkt. No. 16.) By order filed November 3, 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. 18.) Petitioner filed his Response in Opposition on or about December 1, 2014. (Dkt. No. 30.)
The Petitioner is currently confined at Perry Correctional Institution ("PCI") of the South Carolina Department of Corrections. In April of 2003, the Greenville County Grand Jury indicted Petitioner on two counts of murder and one count of assault and battery with intent to kill. (R. at 449-54.) Petitioner was represented at trial by Tom Quinn, Esquire. (See R. at 1.) Petitioner proceeded to a jury trial before the Honorable Larry L. Patterson on May 11-12 of 2004. (R. at 1-448.) The jury convicted Petitioner as charged, and Judge Patterson sentenced Petitioner to two life sentences on the murder convictions and twenty years on the conviction for assault and battery with intent to kill. (R. at 447.)
Petitioner appealed and was represented by Robert M. Dudek, Esquire, of the South Carolina Office of Appellate Defense. (See Dkt. No. 16-7.) In an Anders brief filed on January 9, 2006, Petitioner raised the following issue:
Whether the court erred by refusing to redact from appellant's statement references to appellant's father having fifty to a hundred pounds of marijuana brought to his house from Mexico since references to major drug dealing were unduly prejudicial, and unnecessary to a fair presentation of the state's case?
(Dkt. No. 16-7 at 4 of 13.) Mr. Dudek also filed a petition to be relieved as counsel. (Id. at 11 of 13.) In an unpublished opinion filed on April 17, 2007, the South Carolina Court of Appeals dismissed the appeal and granted counsel's motion to be relieved. (See Dkt. No. 16-10.) The remittitur was issued on May 4, 2007. (Dkt. No. 16-11.)
Petitioner filed an application for post-conviction relief ("PCR") on April 15, 2011. (Dkt. No. 16-12.) Petitioner asserted, inter alia, that counsel was ineffective for failing to conduct "a proper pretrial investigation, " failing "to contest the voluntariness" of Petitioner's confession, and failing to object to an erroneous malice charge. (See Dkt. No. 16-12.) On August 4, 2011, the State filed a Return and Motion to Dismiss wherein the State asserted Petitioner's application was untimely. (See Dkt. No. 16-13.)
On August 8, 2011, the Honorable Robin B. Stilwell signed a Conditional Order of Dismissal; Petitioner was given twenty days to provide the state court "with specific reasons, factual or legal, why it should not dismiss the matter in its entirety." (Dkt. No. 16-14 at 3 of 3.) Judge Stilwell's Conditional Order noted that the application for PCR was filed "approximately three (3) years after the statutory filing period expired." (Id.) On or about August 18, 2011, Petitioner filed a Response to the Conditional Order, stating that he had never "heard of a PCR" and learned of the deadline two years after the deadline passed. (See Dkt. No. 16-16; see also Dkt. No. 16-17.) Judge Stilwell filed his Final Order of Dismissal on October 21, 2011. (Dkt. No. 16-18.)
On November 14, 2012, Petitioner filed a second application for PCR. (See Dkt. No. 16-19.) Petitioner filed several motions in this second PCR proceeding. (See Dkt. No. 16-20; Dkt. No. 16-21; Dkt. No. 16-22; Dkt. No. 16-23.) The State filed a Return and Motion to Dismiss on April 30, 2013. (Dkt. No. 16-24.) On May 7, 2013, the Honorable D. Garrison Hill signed a Conditional Order of Dismissal, concluding, inter alia, that the petition was untimely and successive. (Dkt. No. 16-25.) Petitioner filed a Motion to Amend on May 17, 2013 and a Reply on May 21, 2013. (Dkt. No. 16-26; Dkt. No. 16-27.)
On August 30, 2013, the Honorable Robin B. Stilwell held a hearing on Petitioner's Motion for Default Judgment. (Dkt. No. 16-28.) Brian P. Johnson, Esquire, had been appointed to represent Petitioner, and Mr. Johnson and Petitioner were present at the hearing. (See Dkt. No. 16-28.) In an Order filed on August 30, 2013, Judge Stilwell denied Petitioner's Motion for Default Judgment. (Dkt. No. 16-29.) The Final Order of Dismissal, signed by Judge Hill, was filed on December 9, 2013. (Dkt. No. 16-31.)
On December 12, 2013, Petitioner, through Attorney Brian P. Johnson, filed a Motion to Vacate Disposition and Reopen Proceedings. (Dkt. No. 16-32.) Judge G. Edward Welmaker issued an order denying Petitioner's Motion to Vacate Disposition and Reopen Proceedings on February 21, 2014. (Dkt. No. 16-34.) Petitioner filed a Motion to Reconsider; Judge Welmaker denied that motion on April 15, 2014. (Dkt. No. 16-36; see also Dkt. No. 16-35.)
On or about January 23, 2014, Petitioner filed a Notice of Appeal, stating that he "appeals the judgment of the Honorable Robin B. Stilwell dated October 21, 2011 and August 30, 2013." (Dkt. No. 16-37.) The Supreme Court of South Carolina dismissed the appeal without prejudice on April 21, 2014, because at the time the Notice of Appeal was filed, "there was a Rule 59, SCRCP, motion filed by counsel that was pending before the circuit court." (Dkt. No. 16-38.) The remittitur was issued on May 7, 2014. (Dkt. No. 16-39.)
On May 14, 2014, Petitioner, through Attorney Brian P. Johnson, filed a Notice of Appeal, appealing Judge Hill's order denying post-conviction relief to Petitioner. (Dkt. No. 16-40.) On or about May 8, 2014, Petitioner filed a pro se Notice of Appeal. (Dkt. No. 16-41.) In an order dated June 30, 2014, the Supreme Court of South Carolina dismissed the appeal, stating, "[i]n the explanation required by Rule 243(c) of the South Carolina Appellate Court Rules (SCACR), petitioner has failed to show that there is an arguable basis for asserting that the determination by the lower court was improper." (Dkt. No. 16-44.) The remittitur was issued on July 16, 2014. (Dkt. No. 16-45.) On July 18, 2014, the Supreme Court of South Carolina issued an order recalling the remittitur because a timely Petition for Rehearing had been filed. (Dkt. No. ...