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Ozorio v. Warden Perry Correctional Institution

United States District Court, D. South Carolina, Anderson/Greenwood Division

July 8, 2015

Luis Ozorio, a/k/a Luis A. Ozorio, a/k/a Luiz Alonzo Ozorio, Petitioner,
v.
Warden Perry Correctional Institution, Respondent.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JACQUELYN D. AUSTIN, Magistrate Judge.

This matter is before the Court on Respondent's motion for summary judgment. [Doc. 15.] Petitioner, proceeding pro se, is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 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.

Petitioner filed this Petition for writ of habeas corpus on September 15, 2014.[1] [Doc. 1.] On December 1, 2014, Respondent filed a motion for summary judgment and a return and memorandum. [Docs. 14, 15.] On December 2, 2014, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 16.] Petitioner filed a response in opposition on January 5, 2015. [Doc. 22.]

Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted.

BACKGROUND

Petitioner is incarcerated in the Perry Correctional Institution of the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Court for Anderson County. [Doc. 1 at 1.] Petitioner was indicted in October 2009 for trafficking in cocaine, 400 grams or more. [Doc. 14-4.] On September 21, 2011, represented by Joenathan Shelly Chaplin ("Chaplin") and Nicole Latonya Singletary, [2] Petitioner entered a guilty plea. [App. 6-35.[3] Petitioner was sentenced to 18 years for drugs/trafficking in cocaine, 28 grams or more, but less than 100 grams-first offense. [App. 34, 36; Doc. 1 at 1.]

PCR Application[4]

On December 9, 2011, Tom W. Dunaway, III ("Dunaway"), filed on Petitioner's behalf an application for post-conviction relief ("PCR"), in which Petitioner alleged he was being held in custody unlawfully based on the following ground, quoted substantially verbatim

(a) My attorney did not provide me with effective assistance of counsel due to the following:
I. Plea counsel was ineffective in failing to communicate the State's initial twelve (12) year plea offer resulting in prejudice to me by plea counsel's deficient performance and deprived me of my right to effective assistance of counsel under the Sixth and Fourteenth Amendments of the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution.
ii. Plea Counsel's conduct in not communicating initial plea offer constituted unreasonable performance under the prevailing professional standards established by the American Bar Association and/or state-specific professional rules of professional conduct.
iii. Plea Counsel's failure to communicate the initial twelve (12) year plea deal before I accepted the eighteen (18) year plea deal prevented me from making a voluntary, intelligent and informative decision on whether or not to accept the plea offer among the alternative courses of action open to me.
iv. My attorney failed to keep me informed throughout my case regarding important developments in the course of the prosecution which prevented me from making a voluntary plea of guilty because I was never advised of my right to pursue other courses of action and I did not have a full understanding of the consequences of my plea as required under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
v. But for plea counsel's deficient performance and resulting prejudice due to counsel's failure to communicate and inform me of my options at the plea hearing, specifically the availability of the State's initial twelve (12) year plea offer, I would not have pled guilty to the eighteen (18) year sentence imposed upon me.
vi. The Plea Counsel's advice to accept the eighteen (18) year plea deal over the previous twelve (12) year plea deal which was offered but never conveyed to me by plea counsel fell outside of the reasonable range of competence demanded of attorneys in criminal cases and prejudiced my ability to weigh all of my options and make an informed decision on whether to go to trial or accept the plea offer.
vii. The eighteen (18) year plea deal which I agreed to was entered into without a full understanding of the resulting consequences and alternative courses of action available to me.
viii. Plea Counsel's representation fell below the objective standard of reasonableness because there is a reasonable probability that, but for Plea Counsel's failure to communicate the initial twelve (12) year plea offer, I would not have pled guilty, but would have either accepted the initial plea offer or insisted on going to trial.

[Doc. 14-6 at 3-4.] Petitioner also filed a "Memorandum of Law in Support of Applicant's Application for Post-Conviction Relief, " which contained additional legal support for his arguments. [Doc. 14-6 at 8-14.] The State filed a return on March 6, 2012. [App. 47-51.]

An evidentiary hearing concerning the application was held on March 6, 2012, at which Petitioner was represented by Dunaway. [App. 62-119.] By an order signed on May 17, 2012, the PCR court denied and dismissed the PCR application with prejudice. [App. 125-137.]

A notice of appeal was timely filed. Dunaway filed on Petitioner's behalf a petition for writ of certiorari in the Supreme Court of South Carolina, signed August 25, 2012, asserting the following as the sole issue presented:

Did the circuit court err in holding that petitioner's trial counsel was not ineffective in failing to communicate or disclose the State's initial twelve-year plea offer to petitioner?

[Doc. 14-8 at 3.] The State filed a return [Doc. 14-10] and Petitioner filed a reply [Doc. 14-11].

The South Carolina Court of Appeals denied the petition on April 21, 2014 [Doc. 14-12] and remitted the matter to the lower court on May 7, 2014 [Doc. 14-13].

Petition for Writ of Habeas Corpus

As previously stated, Petitioner filed the Petition on September 15, 2014. [Doc. 1.] In his Petition, Petitioner raises the following ground for relief, quoted substantially verbatim:

Ground One: Ineffective Assistance of Counsel
Supporting Facts: SEE ATTACHED STATEMENT OF FACTS

[Doc. 1 at 5.] In his attachment to his Petition, labeled "Statement of Facts, " Petitioner alleged the following, quoted substantially verbatim:

On September 21, 2011, Petitioner entered a plea of guilty to a lesser included offense of trafficking cocaine 28 to 100 grams 1st offense. Upon Counsel's advice Petitioner pled guilty and was sentenced ...

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