United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
KEVIN F. McDONALD, Magistrate Judge.
The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2254.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.
The petitioner is serving a 22-year sentence for a voluntary manslaughter conviction entered in the Court of General Sessions for Charleston County on November 26, 2009, in Case No. 2008-GS-10-04528, pursuant to an Alford guilty plea. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) ("Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt."). The petitioner had originally been indicted for murder, which carried a sentence of thirty years to life (app. 105), by the Charleston County Grand Jury on June 13, 2008 (app. 104). Although the petitioner indicates that the direct appeal was "[d]ismissed" by the South Carolina Court of Appeals (doc. 1 at 2), the respondent states that no direct appeal was filed (doc. 25 at 6).
The petitioner on April 30, 2010, filed his first application for post-conviction relief ("PCR"), Case No. 2010-CP-10-3595 (app. 36-42), wherein he raised three claims of ineffective assistance of counsel (app. 36). Those three claims of ineffective assistance of counsel were: (1) trial counsel failed to advise the petitioner correctly about the results of the DNA test by SLED; (2) trial counsel misled the petitioner into signing the plea agreement; and (3) trial counsel withheld evidence from the petitioner and failed to investigate "the discovery" (app. 36). On July 15, 2010, the State filed its return (app. 43-47).
An evidentiary hearing was held before the Honorable Roger M. Young, South Carolina Circuit Judge, on September 13, 2010, in Charleston, South Carolina (app. 49-86). William F. Runyon represented the petitioner, and Matthew Friedman represented the State of South Carolina (app. 49). The petitioner testified at the hearing on direct examination (app. 54-61), on cross-examination (app. 61-64), on re-direct examination (app. 79-80), and on re-cross examination (app. 80-81). Mary Robinson, the petitioner's older sister, also testified (app. 65-67). The petitioner's counsel at the guilty plea proceeding, Mark Peper, also testified on direct examination (app. 68-73) and on cross-examination (app. 73-77). The petitioner's PCR counsel made oral arguments at the close of the petitioner's case (app. 81-83). Counsel for the State contended that the petitioner had failed to meet his burden (app. 83). At the close of the hearing, Judge Young concluded that the petitioner had failed to meet his burden (app. 83-84).
On October 7, 2010, Judge Young issued an Order of Dismissal in the PCR case (app. 97-103). Judge Young concluded that the petitioner had failed to satisfy the first and second prongs of the Strickland test, see Strickland v. Washington, 466 U.S. 668 (1984) (app. 100-102). The PCR Judge also found that the testimony of the petitioner's guilty plea counsel was credible (app. 101).
The petitioner's PCR counsel filed a Notice of Intent to Appeal on October 11, 2010 (doc. 25-2 at 1, 9). On appeal in the PCR case, Robert M. Pachak, Appellate Defender, represented the petitioner and filed a Johnson petition for writ of certiorari on February 28, 2011 (doc. 25-3 at 1-6), see Johnson v. State, 364 S.E.2d 201, 201 (1988) ( per curiam ) ("This Court has approved the withdrawal of counsel in meritless post-conviction appeals, provided the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), were followed.") and a motion to be relieved as counsel (doc. 25-3 at 7-8). On March 7, 2011, the Office of the Attorney General apprised the Supreme Court of South Carolina that it had no objection to the motion to be relieved as counsel (doc. 25-5 at 1). Meanwhile, the Clerk of the Supreme Court of South Carolina apprised the petitioner that he could submit a pro se brief within forty-five days (doc. 25-4 at 1).
The petitioner filed his pro se brief (doc. 25-6) on March 29, 2011. In his pro se brief, the petitioner raised nine grounds of ineffective assistance of counsel, many of which were raised for the first time (doc. 25-6 at 6-8). On January 26, 2012, the Supreme Court of South Carolina denied certiorari and granted appellate counsel's request to withdraw (doc. 25-7 at 1). The remittitur was issued on February 13, 2012 (doc. 25-8 at 1). The remittitur was formally filed by the Clerk of Court for Charleston County on February 14, 2012 (doc. 50-1 at 2).
The petitioner filed a second application for PCR (Case No. 2010-CP-10-9071) on November 1, 2010 (doc. 25-9 at 1-18). The petitioner filed on August 20, 2012, a motion for an evidentiary hearing and for appointment of counsel (doc. 25-14). In the second application for post-conviction relief, the petitioner raised as grounds: (1) "Actual Innocence" (doc. 25-9 at 5-8); (2) violation of the petitioner's Fourteenth Amendment and Due Process rights resulting from fraud upon court by the Solicitor and law enforcement agents ( id. at 8-12); (3) genuine issues of material facts ( id. at 12); and (4) duress ( id. ). On December 29, 2010, the State filed a return and motion to dismiss on the basis that the application for PCR was successive (doc. 25-10 at 1-5). In an order formally filed on November 14, 2011, the Honorable Kristi L. Harrington, South Carolina Circuit Judge, in a Conditional Order of Dismissal, dismissed the application as successive (doc. 25-11 at 1-3). In her Order, Judge Harrington apprised the petitioner that he had twenty days to file a response showing why the Conditional Order of Dismissal should not become final ( id. at 3). On December 28, 2012, the petitioner filed a motion to supplement and a memorandum of law (doc. 25-12). On November 5, 2012, the Honorable Deadra L. Jefferson, South Carolina Circuit Judge, issued a Final Order of Dismissal and dismissed the second application with prejudice (doc. 25-15 at 1-3). Although Judge Jefferson noted in her Order the receipt of the petitioner's motion to supplement and a memorandum of law (doc. 25-15 at 1), she concluded that the petitioner had not responded to the Conditional Order of Dismissal: "This Court has not received any amendments to the Applicant's application for post-conviction relief or any response to the Applicant's [ sic ] Conditional Order of Dismissal." ( id. at 2).
The petitioner filed a pro se Notice of Appeal on or about November 13, 2012 (doc. 25-16 at 1-7). On December 17, 2012, the Supreme Court of South Carolina dismissed the appeal pursuant to the holding in Edith v. State, 632 S.E.2d 844, 844 (S.C. 2006), because the petitioner had not filed a response to the Conditional Order of Dismissal (doc. 25-17). The remittitur was issued on January 3, 2013 (doc. 25-18 at ...