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Rodriguez v. Bush

United States District Court, D. South Carolina

April 1, 2015

Nicanor Perez Rodriguez, Petitioner,
v.
Dennis Bush, Warden, Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATION

PAIGE J. GOSSETT, Magistrate Judge.

Petitioner Nicanor Perez Rodriguez, a state prisoner who is represented by counsel, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC following remand for a limited purpose from the United States Court of Appeals for the Fourth Circuit and referral from the assigned district judge for a Report and Recommendation. Specifically, this matter was remanded to the district court for consideration of Rodriguez's purported claim of ineffective assistance of counsel. (See ECF Nos. 30 & 34.)[1] Having carefully considered the parties' submissions and the record in this case, the court concludes that Rodriguez should not be granted a writ of habeas corpus.

BACKGROUND

As previously summarized by the court, Rodriguez was indicted in August 2007 by the State Grand Jury for trafficking in marijuana (conspiracy), two counts of trafficking marijuana, trafficking cocaine (conspiracy) (06-GS-47-09); trafficking methamphetamine (conspiracy), and trafficking methamphetamine (07-GS-47-02). (App. at 832-56, ECF No. 7-8 at 46-70.) Rodriguez was represented by James Ervin, Esquire, and on October 19-23, 2009 was tried by a jury and found guilty of all charges related to trafficking marijuana and trafficking methamphetamine, but not guilty as to the charge of trafficking cocaine. (App. at 764-65, ECF No. 7-7 at 78-79.) The circuit court sentenced Rodriguez to concurrent sentences of twenty-five years' imprisonment for trafficking methamphetamine, ten years' imprisonment for trafficking methamphetamine (conspiracy), and ten years' imprisonment for trafficking in marijuana (conspiracy). Rodriguez was also sentenced to ten years' imprisonment for each of the two charges of trafficking in marijuana, to be served consecutively to the first three sentences, for an aggregate sentence of forty-five years' imprisonment. (App. at 771-72, ECF No. 7-7 at 85-86.) Rodriguez did not file a direct appeal.

Rodriguez filed a pro se application for post-conviction relief ("PCR") on June 16, 2010 in which he raised the following issues: (1) ineffective assistance of counsel in that counsel failed to preserve any issues of appeal or file a notice of appeal; and (2) that this failure denied Rodriguez due process. (Rodriguez v. State of South Carolina, 10-CP-23-4904; App. at 775-84, ECF No. 7-7 at 89-98.) The State filed a return. (App. at 785-88, ECF No. 7-7 at 99 through ECF No. 7-8 at 2.) Rodriguez, through counsel, amended his PCR application on April 26, 2011, alleging the following:

(a) Applicant's right to effective assistance of counsel as guaranteed by the Sixth Amendment... was violated as a result of the failure, by both his counsel and the trial court, to inform him of his right to appeal.
(b) Applicant's right to due process of law as guaranteed by the Fifth and Fourteenth Amendments... was violated when the court refused to allow

Applicant to plead guilty to the charges.

(App. at 789-94, ECF No. 7-8 at 3-8.) On May 11, 2011, the PCR court held an evidentiary hearing at which Rodriguez appeared and testified and was represented by Martin Tomlinson, Esquire and Troy Tessier, Esquire. By order filed July 27, 2011, the PCR judge denied and dismissed with prejudice Rodriguez's PCR application, but found that Rodriguez was entitled to a belated direct appeal pursuant to White v. State .[2] (App. at 824-31, ECF No. 7-8 at 38-45.)

In his PCR appeal, Rodriguez was represented by Wanda H. Carter, Esquire, Deputy Chief Appellate Defender with the South Carolina Commission of Indigent Defense, who filed a petition for a writ of certiorari that presented the following issues:

I. The PCR court properly ruled that petitioner did not voluntarily and intelligently waive his right to a direct appeal in the case.
II. Trial counsel erred in failing to request that the trial judge [] place on the record his reasons for refusing to accept petitioner's negotiated guilty plea per the terms outlined in the agreement reached by the solicitor and the defense in the case.

(ECF No. 7-12 at 3.) In addition, counsel for Rodriguez filed an Anders[3] brief pursuant to White v. State that raised the following issue:

The trial judge erred in allowing prejudicial character and prior bad act drug testimony into evidence at trial because this was used as an attempt to show the jury that appellant was predisposed to commit drug crimes and therefore ...

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