United States District Court, D. South Carolina, Florence Division
Isaac J. Walker, Petitioner,
Warden Leroy Cartledge, Respondent.
R. Bryan Harwell United States District Judge
Petitioner Isaac J. Walker, a state prisoner proceeding pro se, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1. The matter is before the Court for consideration of Petitioner’s objections to the Report and Recommendation (R & R) of United States Magistrate Judge Thomas E. Rogers, III. See ECF Nos. 52 & 54. For the reasons stated below, the Court adopts the Magistrate Judge’s R & R, grants Respondent’s motion for summary judgment, and dismisses Petitioner’s § 2254 petition with prejudice.
Facts and Procedural History
The State of South Carolina indicted Petitioner for first-degree burglary on December 28, 2006, and tried him under an accomplice liability theory in January 2008. ECF No. 46-1 at 38-39, 115, 204-05. The State’s witnesses testified to the following facts at trial. On the afternoon of September 5, 2006, Petitioner and Lisa Godfrey parked their car near a house located in Spartanburg, South Carolina. Id. at 52. They exited the vehicle and Godfrey asked the elderly victim, who was sitting outside the house on the porch, if she could use the restroom. Id. The victim permitted Godfrey to do so, and while she was inside the residence, Petitioner remained outside with the victim and assured him that Godfrey would return shortly. Id. After becoming suspicious, the victim entered his house, found Godfrey looking around a back room, and told her to leave. Id. at 52. Godfrey returned to the porch, but then said she wanted a drink of water and walked back inside the house. Id. at 52-53. Petitioner reassured the victim that Godfrey would return, but after several minutes elapsed, the suspicious victim reentered his home and saw Godfrey walking through the back door. Id. at 53. After the victim confronted Godfrey, she and Petitioner sped away in their car. Id. at 53-54, 139-40. The victim realized a rifle and shotgun were missing from a gun rack in his house, so he reported the incident to law enforcement. Id. at 56-57, 62, 123-24, 131. Later that evening, police stopped Petitioner and Godfrey’s vehicle and found the victim’s guns inside the vehicle. Id. at 154-62, 179-82.
Petitioner did not testify or present any evidence in his defense. The jury found Petitioner guilty as charged,  and the trial court sentenced him to twenty-two years imprisonment. ECF No. 46-2 at 17, 47. After the South Carolina Court of Appeals dismissed his direct appeal, Petitioner filed an application for post-conviction relief (PCR) alleging, among other grounds, that trial counsel was constitutionally ineffective for failing to advise him of a pretrial plea offer from the State that would have enabled him to plead guilty to grand larceny for the theft of goods valued more than one thousand dollars but less than five thousand dollars. Id. at 62, 66-74, 81-87. The state PCR court held an evidentiary hearing in 2011. Id. at 88-158.
At the evidentiary hearing, the PCR court received into evidence several documents from trial counsel’s case file. ECF No. 46-1 at 33-34, 36, 40-42. The following three documents pertain to a pretrial plea offer that the State conveyed to trial counsel in October 2006 shortly after Petitioner’s arrest:
• In a letter dated October 11, 2006, the assistant solicitor currently prosecuting Petitioner’s criminal case made the following offer: “Isaac Walker - My offer is to allow him to plea straight up as charged. If he does not wish to plea straight up to grand larceny $1-5K, I will be direct indicting this case as a burglary 1st. . . . Th[is] offer will remain open until Wednesday, October 25th.”
• In an email dated October 11, 2006, trial counsel responded to the assistant solicitor’s letter, stating, “Thanks for the paperwork and offers - I will relay offers and review files with clients and let you know something as soon as I can - certainly before 10/25!!”
• In an email dated November 1, 2006, the assistant solicitor again relayed the plea offer for Petitioner to plead guilty to grand larceny: “I extended an offer in this case a couple of weeks ago. Mr. Walker was charged with Grand Larceny; however, since trickery was used to gain access to the victim’s home, and since firearms were stolen from the victim, I can indict this case as a Burglary 1st. My offer was to allow Mr. Walker to plea straight up to Grand Larceny as charged. This offer was set to expire on October 25th. Because you were trying to get ready for a trial, I was willing to extend the offer. The purpose of this letter is to set a deadline of Wednesday, November 15th for Mr. Walker to accept this offer.”
Id. at 33-34, 36.
The PCR court also considered as evidence email correspondence that trial counsel had with an assistant solicitor the month before Petitioner’s trial. Id. at 40-42. The following documents show the State conveyed a second pretrial plea offer to trial counsel in December 2007:
• In an email dated December 18, 2007, an assistant solicitor informed trial counsel that he was faxing her a formal plea offer and asked her to convey it to Petitioner. The faxed plea offer form contained an offer for Petitioner to plead guilty to one charge of second-degree burglary (nonviolent) and one charge of second-degree burglary (violent),  and the form provided the offer would expire the next day, December 19.
• In an email dated December 19, 2007, trial counsel responded to the offer, stating, “Mr. Walker respectfully declines the State’s offer and requests a jury trial.”
Id. The above correspondence-detailing (1) the October 2006 plea offer for grand larceny and (2) the December 2007 plea offer for two second-degree burglaries-was the central focus of Petitioner’s and trial counsel’s testimonies at the PCR hearing. ECF No. 46-2 at 94-144, 161-81.
Petitioner testified he was arrested on September 6, 2006 (the day after the incident at the victim’s home) on a grand larceny charge and bonded out of jail on October 15, 2006. Id. at 94, 96. He claimed he never met or communicated with trial counsel-his appointed attorney-until he received a phone call from her on December 18, 2007. Id. at 95. During that phone call, trial counsel introduced herself and informed Petitioner that he had been indicted for first-degree burglary; Petitioner asserted this conversation was the first time he learned of the first-degree burglary indictment. Id. at 95-99. While on the phone, Petitioner argued with trial counsel and maintained the correct charge should have been grand larceny, but trial counsel explained that he had been directly indicted for first-degree burglary and that the State had made a plea offer (the one from December 2007) allowing him to plead guilty to two second-degree burglaries. Id. at 112. Petitioner acknowledged in his PCR testimony that he knew of and rejected the December 2007 offer. Id. at 100-01, 112.
Regarding the October 2006 plea offer for grand larceny, Petitioner testified that trial counsel never communicated the offer to him and that he never learned of it until after he had been tried and convicted. Id. at 102, 124. Petitioner claimed he would have immediately accepted the October 2006 offer had trial counsel relayed it to him, stating, “I would have run to the courthouse and accepted the plea from the solicitor if I’d been notified.” Id. at 102, 110, 125. When asked to explain why he would have pled guilty to grand larceny, Petitioner answered, “The reason I would have pled to grand larceny is because I took [Godfrey] out there. Got out there, she didn’t want to give me my gas money, and I didn’t have no gas money.” Id. at 104-05.
Petitioner further addressed the facts and circumstances of the crime. See Id. at 104-07, 114, 123-24. He maintained he did not know Godfrey stole the guns until after he had finished speaking with the victim and returned to his car; Petitioner claimed he “freaked out” when he saw the victim had the guns, so he drove off. Id. at 107, 114, 123. He maintained, “If I’m guilty of anything I’m guilty of panicking and leaving when she brought them out there to the car.” Id. Petitioner further testified he “did not aid and abet” Godfrey, and he stated, “I never committed a larceny.” Id. at 114.
During cross-examination, Petitioner testified he rejected the December 2007 plea offer because he believed he thought he would serve a fifteen-year prison sentence. Id. at 350. However, Petitioner could not provide a definitive answer as to why he would have accepted a plea to grand larceny-which, according to the State’s attorney, would have carried a sentence of “zero to ten” years-but not a plea to violent second-degree burglary, which would have carried a sentence of zero to fifteen years. See id. at 126-28. He simply stated he would not have pled guilty to burglary when he had not been arrested for burglary, and claimed trial counsel did not explain to him that a conviction for violent second-degree burglary had a sentencing range of zero to fifteen years. Id. at 127-28. Petitioner reiterated his previous testimony that he would have accepted the plea offer for grand larceny, stating, “I would have not . . . accepted a plea to burglary second or first degree. I would have accepted my original plea offer to grand larceny.” Id. at 141.
Trial counsel testified Petitioner was arrested for grand larceny in September 2006 and that she was appointed to represent him that same month. Id. at 162-63. She recalled the assistant solicitor making a plea offer that would have allowed Petitioner to plead guilty to grand larceny, though she could not remember the exact date of that offer. Id. at 164. During her testimony, trial counsel was given copies of the October 11 and November 1, 2006 correspondence that she had with the assistant solicitor, and she read it into the record. Id. at 165-66. Trial counsel could not specifically recall whether she communicated the plea offer for grand larceny to Petitioner, and she acknowledged she had no notes confirming whether she spoke with him about that offer, admitting she “was very bad” in documenting her discussions with clients. Id. at 167, 174. Trial counsel acknowledged her case file did not contain an acceptance or rejection to the offer that was conveyed in October 2006 and reconveyed in November 2006, but she testified her routine practice was to relay any plea offers to her clients. Id. at 167, 174. ...