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, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 15; see also Dkt. No. 14.)
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 July 18, 2014. (See Dkt. No. 1 at 14 of 16.) On December 5, 2014, Respondent filed a Motion for Summary Judgment. (Dkt. No. 15; see also Dkt. No. 14.) By order filed December 8, 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. 16.) Petitioner filed a Response in Opposition to the Motion for Summary Judgment on or about January 9, 2015. (See Dkt. No. 25; see also Dkt. No. 31.)
The Petitioner is currently confined at McCormick Correctional Institution of the South Carolina Department of Corrections ("SCDC"). In August of 2004, the Dorchester County Grand Jury indicted Petitioner on five counts of kidnapping, two counts of armed robbery, and one count of failure to stop when signaled by a law enforcement vehicle. (R. at 547-62.) Petitioner was represented at trial by Kenneth Cooper, Esquire. (See R. at 4.) Petitioner proceeded to a jury trial before the Honorable Diane S. Goodstein on January 24-26 of 2005. (See R. at 4-546.) The jury convicted Petitioner as charged, and Judge Goodstein sentenced Petitioner to life without the possibility of parole on each count of kidnapping and armed robbery; she sentenced Petitioner to three years, concurrent to the other sentences, on the conviction for failure to stop when signaled by a law enforcement vehicle. (R. at 541-45.)
Petitioner appealed and was represented by Joseph L. Savitz, III, Esquire, of the South Carolina Office of Appellate Defense. (See Dkt. No. 14-7.) In an Anders brief filed on September 7, 2006, Petitioner raised the following issue:
The trial judge committed reversible error by refusing to suppress Muhammad's statement to the police, since it was induced by the interrogating officer's offer of leniency and was thus involuntary.
(Dkt. No. 14-7 at 4 of 10.) Mr. Savitz also filed a petition to be relieved as counsel. (Id. at 8 of 10.) In an unpublished opinion filed on January 14, 2008, the South Carolina Court of Appeals dismissed the appeal and granted counsel's motion to be relieved. (Dkt. No. 14-8.) The remittitur was issued on January 30, 2008. (Dkt. No. 14-9.)
Petitioner filed an application for post-conviction relief ("PCR") on December 17, 2008, wherein he raised the following issues: "ineffective assistance of counsel" and "due process." (R. at 564-89.) On December 22, 2009, Petitioner, through Charles T. Brooks, III, Esquire, filed a memorandum in support of his PCR application. (R. at 570-73.) In that memorandum, Petitioner alleged he was being held in custody unlawfully for the following reasons:
(A) Ineffective assistance of Trial Counsel
(B) Due Process/equality
(C) Deprived of interest by appointed trial counsel.
(R. at 570.) Specifically, Petitioner contended that trial counsel "deprived him of an effective trial by allowing the State prosecution to give applicants co-defendant a plea bargain and allowing the State to take him to have a jury trial even after knowing they both were guilty of the charge that was lodged against them." (R. at 571.) He also alleged trial counsel failed "to investigate the circumstances of [Petitioner's] life as part of his preparation for the penalty phase." (R. at 571.) Under the heading of "MULTIPLICITY, " Petitioner stated (verbatim),
Now according to the procedure both applicant and co-defendant was charged with these same eight indictments, the State abused her powers by allowing two separate trials. Sentencing one to life without parole because the Solicitor seeks this for one by name therefore making it a "race" trial, and sentencing the other to a shorter punishment by offering him a plea bargain, because of the different race (one (1) black male and one (1) caucasian male.
(R. at 572.) Petitioner asserted he "did not have enough time with trial counsel" and that had he known he was facing a life sentence, he would have taken a plea in order to receive a twenty-five year sentence. (R. at 572-73.)
On December 9, 2009, an evidentiary hearing was held before the Honorable Edgar Dickson. (R. at 578-612.) Petitioner was present and represented by Charles T. Brooks, III, Esquire. (See R. at 578.) In an order dated March 1, 2011, Judge Dickson denied the application for post-conviction relief and dismissed the petition. (R. at 613-18.)
Petitioner, through his attorney Breen Richard Stevens of the South Carolina Commission on Indigent Defense, filed a Johnson Petition for Writ of Certiorari on October 24, 2011. (See Dkt. No. 14-11.) ...