United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
SHIVA V. HODGES, Magistrate Judge.
Petitioner Anthony Glenn James is an inmate at the McCormick Correctional Institution of the South Carolina Department of Corrections. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment and return. [ECF Nos. 9, 10, 13]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by November 12, 2015. [ECF No. 11]. Petitioner filed a timely response. [ECF No. 14]. After having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted.
I. Procedural Background
Petitioner was indicted by the Charleston County grand jury during the November 2004 term of court for armed robbery (2004-GS-10-7542), burglary first degree (2004-GS-10-7543), and possession of a weapon during the commission of a violent crime ("gun charge") (2004-GS-10-7544). [ECF No. 10-2]. Petitioner was represented by Martha Kent-Jenkinson, Esq., and pled guilty on August 29, 2005, before the Honorable R. Markley Dennis, Jr., Circuit Court Judge. [ECF No. 10-3]. Judge Dennis sentenced Petitioner to concurrent terms of 18 years for armed robbery and burglary and 5 years for the gun charge. Id. at 44-45. Petitioner did not file a direct appeal.
On January 17, 2006, Petitioner filed an application for post-conviction relief ("PCR") (2006-CP-10-0164) in which he alleged claims of ineffective assistance of counsel, due proves violations, and that his attorney withheld Brady material. [ECF No. 10-5]. A PCR evidentiary hearing was held before the Honorable John C. Few, Circuit Court Judge, on September 14, 2007, at which Petitioner and his counsel, William Runyon, Esq., appeared. [ECF No. 10-7]. On November 12, 2007, Judge Few filed an order of dismissal. [ECF No. 10-8].
Pursuant to a February 11, 2011, Consent Order Granting Belated PCR Appeal Pursuant to Austin and Dismissing All Other Claims, Petitioner was given "thirty (30) days from the receipt of written entry" of that Order to file his notice of appeal. [ECF No. 10-22]. Petitioner attempted to file an untimely pro se "Notice of Intent to Appeal and Motion for Appointment of Appellate Counsel" [ECF Nos. 10-9 and 10-10], which was dismissed. [ECF No. 10-10]. The remittitur issued on May 4, 2011. [ECF No. 10-11].
Petitioner filed a second PCR application (2008-CP-10-4194) on July 23, 2008, in which he raised the following claim for relief: "Ineffective assistance of counsel: Appellate Counsel failed to provide me with copy of my Guilty Plea transcript. Appellate Counsel failed to induce issue hands of one, hands of all' after I presented this to him while under oath during my P.C.R. testimony." [ECF No. 10-13 at 3]. The Honorable Deadra L. Jefferson, Circuit Court Judge, issued a Conditional Order of Dismissal on March 20, 2009. [ECF No. 10-17].
On March 26, 2009, Petitioner submitted a pro se document captioned "Applicant's Objections to Respondent's Motion to Dismiss, " asserting the following reasons he was entitled to an evidentiary hearing:
1. Applicant's prior PCR counsel did not comply with Rule 71.1 (d), S.C. R. Civ. Pro.
2. Applicant's prior PCR counsel did not amend the application.
3. Applicant's prior PCR counsel did not provide crime scene pictures.
4. Plea counsel failed to file a Motion to Dismiss charges on grounds of "hand of all, hand of all."
5. Plea counsel failed to file a Motion to Suppress Waiver of Miranda Rights.
[ECF No. 10-18]. Petitioner subsequently filed a "Motion for Post-Conviction Relief Bond Setting & to Amend PCR" and "Applicant's Reasons Why Conditional Order of Dismissal Should Not be Final, And Motion for Evidentiary Hearing, and Motion to Amend PCR Application." [ECF Nos. 10-19 and 20].
By order filed June 16, 2009, the court dismissed the second PCR application, but Judge Jefferson vacated her order on February 9, 2011, dismissed the 2008 PCR application, and granted Petitioner a belated appeal of the denial of his first PCR application pursuant to Austin v. State, 409 S.E.2d 395 (S.C. 1991) (providing belated appellate review where petitioner alleges in successive PCR application that he expressed a desire to appeal his first denial, but that counsel timely failed to do so). [ECF Nos. 10-21, 10-22).
Petitioner filed a third PCR application (2009-CP-10-6165) on September 28, 2009, in which he raised the following grounds for relief:
1. "Ineffective assistance of counsel; Trial Court did not advised[sic] me of steps to take in order to secure appellate review."
2. "Belated Appeal; I did not freely and voluntarily waive my appellate rights to indictment #'s [to which he pled]."
3. "Austin Review: I did not freely and voluntarily waive my appellate rights to PCR judgment of C/A #: 06-CP-10-0164."
[ECF Nos. 10-24 at 4; 10-28]. Judge Jefferson filed a Conditional Order of Dismissal on March 30, 2010. [ECF No. 10-26]. The Honorable Kristi L. Harrington, Administrative Judge, filed a Final Order of Dismissal on April 22, 2011. [ECF No. 10-27].
Petitioner filed a fourth PCR application (2012-CP-10-2202) on March 30, 2012, in which he raised a ground for relief of " Austin Review/Belated Appeal Review, " arguing his belated appeal to his first PCR hearing was dismissed in error by the Supreme Court of South Carolina and that he had complied with the statute of limitations. [ECF Nos. 10-29 at 49; 10-33]. Then-Chief Administrative Judge Jefferson filed a Conditional Order of Dismissal on October 4, 2012. [ECF No. 10-31]. The Honorable Stephanie P. McDonald, Administrative Judge, filed a Final Order of Dismissal on August 13, 2014 [ECF No. 10-32].
Petitioner filed a fifth PCR Application (2013-CP-10-5104) on August 29, 2013, and alleges the following:
1. "Invalid Arrest Warrants (Newly discovered Evidence)"
a. "By Letter dated July 8th, 2013, I found out the Affiant of my arrest warrants [was not] ...