Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gosnell v. McFadden

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

January 4, 2016

Gregory Gosnell, Petitioner,
v.
Joseph McFadden, Warden, 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 May 28, 2015.[1] [Doc. 1.] On August 10, 2015, Respondent filed a motion for summary judgment and a return and memorandum to the Petition. [Docs. 15, 16.] The same day, 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. 17.] Petitioner's response in opposition was entered on the docket on October 26, 2015. [Doc. 30.]

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 presently confined in the South Carolina Department of Corrections at Tyger River Correctional Institution pursuant to orders of commitment of the Greenville County Clerk of Court.[2] [Doc. 1 at 1; Doc. 33 (notice of change of address to Tyger River Correctional Institution).] In November 2011, Petitioner was indicted for murder and burglary first degree. [App. 166-67[3]; Doc. 16-8.] On September 10, 2012, represented by Brian Johnson ("Johnson") and Evelyn Mitchell ("Mitchell"), Petitioner pled guilty to voluntary manslaughter and received a sentence of seventeen and one-half years imprisonment. [App. 1-100.] No direct appeal was filed.

PCR Proceedings

Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on January 4, 2013. [App. 101-09.] Petitioner alleged he was being held in custody unlawfully based on the following grounds, quoted substantially verbatim:

(a) Ineffective Assistance of Trial/Plea Counsel
(b) Applicant is a Mental Health Patient
(c) See: Attached sheet

[App. 103.] In support of his ground, Petitioner alleged the following facts, quoted substantially verbatim:

(a) Ineffective Assistance/Involuntary Plea
(b) Applicant is a Mental Health Patient

(c) See: Attached sheet

[ Id. ] In the attachment, Petitioner raised the following allegations, quoted substantially verbatim:

Applicant set forth this cause of action pursuant to the Jurisdiction that are set forth in 17-27-20(1)(6) "Collateral attack upon and ground of alleged error heretofore available under this Uniform Post Conviction Act, that are being submitted or amended."
Applicant asserts ineffective assistance of trial Counsel in this application. Due to the lack of records and the assistance of Counsel. Puruant to SCRCiv. P., Rule 71.1(d)(e) states that the burden of proof is on the Applicant to show his entitlement for relief by a preponderance of the evidence and also for the appointment of Counsel for the hearing, to insure that all available grounds for relief are included in the application and shall be amended if necessary. It would be chronologically impossible for the Applicant to carry such a burden without the aid of the whole Lower Court records and the appointment of Counsel to help establish his Constitutional Claims.
The Applicant request that this Court order the state to turn over all the Lower Court records pertaining to this conviction and order that Counsel be appointed in the above mention application. Applicant further request that this Court grant leave to amend the present Application in this cause of action due to the lack of records and Applicant is without Counsel.
Applicant seeks this Court approval of this application, so that Applicant right to a PCR won't be deem abandon due to the fact that Applicant has only one (1) year to file this Application from the date of a Final Judgment or from the remittitur to the Lower Court, which ever come First.

[App. 104.] The State filed a return dated May 7, 2013. [App. 110-15.]

A hearing was held on February 21, 2014, and Petitioner was represented at the hearing by Caroline Horlbeck. [App. 116-56.] On April 9, 2014, the PCR court filed an order denying and dismissing the PCR application with prejudice. [App. 157-65.] A notice of appeal was timely filed and served. [Doc. 16-2.]

Benjamin John Tripp ("Tripp") of the South Carolina Commission on Indigent Defense filed a Johnson [4] petition for writ of certiorari on Petitioner's behalf in the Supreme Court of South Carolina, dated December 17, 2014. [Doc. 16-3.] The petition asserted the following as the sole issue presented:

Did the record support the PCR court's conclusion that Petitioner voluntarily pled guilty where both Petitioner and counsel testified that Petitioner's discovery materials were taken from him in jail and were never restored to him?

[ Id. at 3.] At the same time he filed the Johnson petition, Tripp submitted a petition to be relieved as counsel. [ Id. at 8.] The Clerk of Court for the Supreme Court of South Carolina notified Petitioner of his right to file a pro se response to the petition filed by Tripp [Doc. 16-4]; however, Petitioner did not file a pro se petition [ see Doc. 16-5]. The court denied the petition and granted counsel's request to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.