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. 19; see also Dkt. No. 18.)
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 the instant habeas action on November 24, 2014. ( See Dkt. No. 1 at 15 of 16; see also Dkt. No. 1-2 at 2 of 2.) On April 3, 2015, Respondent filed a Motion for Summary Judgment. (Dkt. No. 19; see also Dkt. No. 18.) By order filed April 3, 2015, 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. 20.) Petitioner filed a Response in Opposition to the Motion for Summary Judgment on or about June 1, 2015. (Dkt. No. 25.)
The Petitioner is currently confined at McCormick Correctional Institution of the South Carolina Department of Corrections ("SCDC"). In November of 2007, the Richland County Grand Jury indicted Petitioner for murder. ( See R. at 105-07.) Petitioner was represented by Todd Rutherford, Esquire. ( See R. at 1.) On October 16, 2008, Petitioner pled guilty as charged before the Honorable J. Michelle Childs. ( See R. at 1-21.) On October 16, 2008, Judge Childs sentenced Petitioner to 30 years. (R. at 20.)
It is unclear whether Petitioner filed a direct appeal. However, on June 11, 2009, he filed an application for post-conviction relief ("PCR"). (R. at 22-28.) The following questions and answers appeared in his PCR application:
10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) The Applicant received Ineffective Assistance of Counsel prior and during his plea in violation of his rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, as well as Article I, Section 14 of the South Carolina Constitution.
(b) The Applicant's Plea of Guilty was not Voluntarily and Intelligently entered. The judgment and sentence against the Applicant were entered in violation of his right to due process of law and effective assistance of counsel.
11. State concisely and in the same order the facts which support each of the grounds set out in (10):
(a) Trial Counsel failed to adequately investigate the Applicant's charge, failed to investigate and interview potential witnesses and failed to give his client adequate legal advise [sic] prior to Applicant's guilty plea proceeding. Trial Counsel failed to fully advise the Appl[i]cant of the consequences of his plea and further failed to investigate defenses against the charge against the Applicant.
(b) Counsel failed to provide client effective assistance of counsel prior to and during his guilty plea proceeding. The Applicant's plea of guilt was coerced by counsel's failure to provide adequate representation.
(R. at 24.)
On June 7, 2011, an evidentiary hearing was held before Judge James R. Barber, III. (R. at 35-92.) Petitioner was present and represented by Tara D. Shurling, Esquire. ( See R. at 35.) In a written order dated August 17, 2011, Judge Barber denied the application for post-conviction relief and dismissed the petition. (R. at 93-104.)
Petitioner, through his attorney Robert M. Dudek, Esquire, of the South Carolina Commission on Indigent Defense, filed a Petition for Writ of Certiorari on May 14, 2012. ( See Dkt. No. 18-3.) Through counsel, Petitioner raised the following issue:
Whether the Court erred by ruling defense counsel did not provide ineffective assistance of counsel where it was undisputed counsel erroneously advised petitioner he would serve 85% of his sentence for murder where he actually had to serve that sentence "day for day" since petitioner would not have pled guilty if he had not been erroneously advised about "parole" or his "max out" date?
(Dkt. No. 18-3 at 4 of 15.)
In an order filed July 18, 2014, the South Carolina Court of Appeals denied the petition for a writ of certiorari. (Dkt. No. 18-5.) The matter was remitted to the lower court on August 6, 2014. (Dkt. No. 18-6.)
Petitioner then filed the instant habeas petition, wherein he raised the following grounds for review (verbatim):
GROUND ONE: The Applicant received IEOC prior/during his plea in violation of his Six and Fourteenth Amendment State and Federal Constitution.
Supporting facts: Counsel failed to adequately investigate the charge, to investigate and interview potential witnesses, give adequate legal advice prior to guilty plea. Counsel failed to fully advise the Applicant of the consequences of his plea and failed to investigate defenses of the charge against the Applicant.
GROUND TWO: The Applicant's plea of guilty was not voluntary/intelligently entered. The judgment/sentence were entered in violation of due process and IEOC. Supporting facts: Counsel failed to provide client effective assistance of counsel prior to and during his guilty plea proceeding. The Applicant's plea of guilty was coerced by counsel's failure to provide adequate representation.
GROUND THREE: It was undisputed counsel advised [Applicant] he would serve 85% when the sentence was day for day.
Supporting facts: Whether the Court erred by ruling defense counsel did not provided IEOC where it was undisputed counsel erroneously advised petitioner he would serve 85% of his sentence for murder where he actually had to serve that sentence "day for day" since petitioner would not have pled guilty ...