United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
Petitioner Douglas Thompson, a self-represented state prisoner, 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) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 15.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Thompson was advised of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 16.) Thompson filed a response in opposition. (ECF No. 22.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondent's motion for summary judgment should be granted and Thompson's Petition denied.
Thompson was indicted in October 2009 in Richland County for second degree criminal sexual conduct with a minor. (App. at 75-76, ECF No. 14-5 at 77-78.) Thompson later waived presentment of the charge of contributing to the delinquency of a minor. Thompson was represented by Jay Cooper, Esquire, and on April 29, 2010 pled guilty as charged. The circuit court sentenced Thompson to eight years' imprisonment for criminal sexual conduct with a minor and three years' imprisonment for contributing to the delinquency of a minor, both sentences to be served concurrently. (App. at 19, ECF No. 14-5 at 21.) Thompson did not appeal his guilty plea or sentence.
Thompson filed a pro se application for post-conviction relief ("PCR") on August 5, 2010 in which he raised the following claims:
(1) Constitutional Violation
Supporting Facts: "... The applicant submits that the S.C. Code of Law and the South Carolina Constitution are in conflict. On one hand, the Cons[t]itution says that a fourteen year old can consent to sexual intercourse. Then, on the other hand, the S.C. Code of Law says a fourteen, but less than sixteen year old cannot consent to sexual intercourse. The applicant submits that the South Carolina Constitution overrides the South Carolina Code of Law because one derived from the other." (App. at 27, ECF No. 14-5 at 29.)
(2) Ineffective Assistance of Counsel
Supporting Facts: "The applicant submits that his attorney was ineffective for advising him to plead guilty to an offense that is at conflict with the South Carolina Constitution. The applicant's attorney was also ineffective for not motioning to quash the applicant's indictments pursuant to Gentry v. State, 610 S.E.2d 494 (S.C. 2005) because the applicant's indictment initially stated § 16-3-655(C), and was amended to reflect § 16-3-655(B)(2) without ever being returned back to the grand jury for re-submission." (App. at 27-28, ECF No. 14-5 at 29-30.)
(3) Subject Matter Jurisdiction
Supporting Facts: "The applicant submits that the court was without subject matter jurisdiction to convict and sentence the applicant for the offenses that he was sentenced for because his indictment was fatally defective." (App. at 28, ECF No. 14-5 at 30.)
(4) Involuntary Guilty Plea
Supporting Facts: "The applicant asserts that pursuant to the mandates that are set forth in Boykin v. Alabama, 89 S.Ct. 1709 (1969), that his guilty plea was involuntary because no one in their right mind would plead guilty to an offense in which he could not be guilty of. The sex act involved was consensual and the entire record will reflect the same." (App. at 28, ECF No. 14-5 at 30.)
(See Thompson v. State of South Carolina, 10-CP-40-5273; App. at 22-28, ECF No. 14-5 at 24-30.) The State filed a return. (App. at 29-34, ECF No. 14-5 at 31-36.) On January 10, 2012, the PCR court held an evidentiary hearing at which Thompson appeared and testified and was represented by David Belding, Esquire. By order filed March 29, 2012, the PCR court denied and dismissed with prejudice Thompson's PCR application. (App. at 60-72, ECF No. 14-5 at 62-74.)
On appeal, Thompson was represented by David Alexander, Esquire, Appellate Defender, who filed a Johnson petition for a writ of certiorari that presented the following question:
Whether petitioner's Sixth Amendment right to effective assistance of counsel was violated by his attorney's failure to challenge the constitutionality of section 16-3-655 of the South Carolina Code, thereby rendering his guilty plea unknowing and involuntary?
(ECF No. 14-1.) Thompson filed two pro se responses to the Johnson petition. (ECF No. 14-2.) On October 8, 2014, the South Carolina Court of Appeals issued an order denying Thompson's petition for a writ of certiorari. (ECF No. 14-3.) The remittitur ...