United States District Court, D. South Carolina, Florence Division
THOMAS E. ROGERS, III, Magistrate Judge.
Marcus Antwon Greene (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 19, 2015. (Doc. #1). Respondent filed a motion for summary judgment on August 17, 2015, along with a return and memorandum. (Docs. #14 and #15). The undersigned issued an order filed August 17, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #17). Petitioner filed a response on August 28, 2015. (Doc. #19).
The procedural history as set forth by the Respondent has not been seriously disputed by the Petitioner in his response. Therefore, the undersigned will set out the undisputed procedural history, in part, as set forth by the Respondent.
Petitioner is currently incarcerated in Evans Correctional Institution pursuant to an order of commitment from the Clerk of Court of Kershaw County. Petitioner was indicted during the October 2011 term of the Kershaw County Grand Jury for Armed Robbery (2011-GS-28-0749) and Burglary in the First Degree (2011-GS-28-0753). Thereafter, Petitioner waived presentment to the Kershaw County Grand Jury for: two counts of Failure to Stop on Blue Light-First Offense (2012-GS-28-0270, -0274), Resisting Arrest (2012-GS-28-0271), Possession of Schedule I-V Drug-First Offense (2012-GS-28-0272), and Possession/Attempt to Possess Crack Cocaine-Second Offense (2012-GS-28-0273). Charlie J. Johnson, Jr., Esquire, represented Petitioner. On February 27, 2012, Petitioner appeared before the Honorable J. Ernest Kinard, Jr., where he pleaded guilty to Burglary in the Second Degree (Non-Violent), Resisting Arrest, Possession of Schedule I-V Drug-First Offense, Possession/Attempt to Possess Crack Cocaine-Second Offense, two counts of Failure to Stop for a Blue Light, and Strong Armed Robbery. Judge Kinard sentenced Petitioner to an aggregate sentence of twenty years imprisonment pursuant to negotiations between Petitioner and the State. No direct appeal was taken.
Petitioner filed an application for post-conviction relief (PCR) on November 6, 2012, raising the following claims:
1. Plea Counsel failed to file a direct appeal;
2. Plea counsel conspired with the State to coerce Applicant to plead guilty;
3. Plea counsel failed to inform the court that it lacked subject matter jurisdiction.
4. Plea counsel failed to object to defective arrest warrants;
5. Plea counsel failed to object to defective search warrants.
Respondent filed its Return on June 21, 2013, requesting an evidentiary hearing be held. Petitioner amended his application on November 19, 2013. In his amended application filed by his counsel on the eve of the evidentiary hearing, Petitioner alleged as follows:
1. Plea counsel failed to provide him the opportunity to review the discovery materials in his case before requiring him to make a decision about waiving his rights to a jury trial;
2. Applicant alleges his pleas were not voluntarily and intelligently entered insomuch as they were the product of ineffective assistance of counsel prior to and during his plea proceeding;
3. Plea counsel was ineffective for advising Applicant to enter pleas of guilty to charges on which he did not represent Applicant and had not engaged in the investigation of and not received discovery concerning;
4. Applicant alleges that his pleas of guilty were not voluntarily and intelligently entered insomuch as they were coerced by misrepresentations made by the State concerning evidence that would be presented against him if he went to trial by jury;
5. Plea counsel was ineffective for advising Applicant to plead guilty without disclosing or discussing inconsistencies present in the victim's two statements with the Applicant, and without advising him how those inconsistencies might be used to his advantage at a trial by jury;
6. Plea counsel was ineffective for failing to advise the Applicant of problems with the victim's pre-trial participation in a photo-lineup, and for failing to discuss with the Applicant how that evidence might be used in his defense at a trial by jury;
7. Plea counsel was ineffective for failing to obtain a preliminary hearing for the Applicant;
8. Plea counsel was ineffective for advising the Applicant to plead guilty to drug charges without first obtaining discovery concerning the chemical analysis of the evidence alleged to be controlled substances; and
9. The Applicant alleges that his pleas were entered in violation of his right to the equal protection of the law where his co-defendants received the benefit of full disclosure of the discovery materials which resulted in their right to jury trial and their eventual acquittal.
App.p. 38, 40.
An evidentiary hearing was convened November 20, 2013, at the Richland County Courthouse before the Honorable Robert E. Hood, Circuit Court Judge. App.p. 45-175. Petitioner was present at the hearing and was represented by Tara D. Shurling. At the evidentiary hearing, Petitioner proceeded forward on the nine allegations as set forth in his amended application and testified on his own behalf. Respondent presented testimony from plea counsel Charlie J. Johnson, Jr., Esquire (hereafter "Counsel"), as well as former Assistant Solicitor Ron Moak and prosecuting Assistant Solicitor Brett Perry, Esquire. Respondent was represented by Assistant Attorney General Megan E. Harrigan of the South Carolina Attorney General's Office. Judge Hood entered his order of dismissal dated March 6, 2014. App.p. 183-199.
Petitioner filed a notice of appeal. He was represented by Carmen V. Ganjehsani, Appellate Defender of the South Carolina Commission on Indigent defense, Division of Appellate Defense. On November 21, 2014, counsel filed a Johnson Petition for Writ of Certiorari and petition to be relieved as counsel pursuant to Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988) asserting the following argument:
Whether the PCR court erred in finding that Petitioner's guilty pleas were entered knowingly, voluntarily, and intelligently where Petitioner's plea counsel did not provide him with his discovery prior to his guilty pleas and where Petitioner was unaware at the time he pled guilty of many crucial facts that would have impacted his decision to plead guilty, including deficiencies with the victim's pre-trial identification of Petitioner, inconsistencies in two statements given by the victim, and the absence of a statement against Petitioner by his co-defendant which Petitioner was led to believe existed and which was the reason Petitioner gave a statement implicating himself?
Johnson Petition for Writ of Certiorari. Along with the Johnson petition, Petitioner submitted a pro se submission on December 17, 2014, raising eight issues. (See doc. #15-2).
In an order filed March 4, 2015, the Supreme Court of South Carolina denied the petition and granted appellant counsel's petition to be relieved. The court issued a remittitur on March 20, 2015.
Petitioner raised the following allegations in his pro se petition, quoted verbatim:
GROUND ONE: Ineffective Assistance of counsel/violation of 6th, 5th and 14th Amendments. Petitioner alleges that he received ineffective assistance of counsel in that:
1. Plea counsel failed to provide him the opportunity to review the discovery materials in his case before requiring him to make a decision ...