United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The original petition was filed pro se on January 5, 2015. On August 17, 2015, the Court granted Petitioner's Motion to Amend/Correct, and Petitioner filed an Amended Petition on September 1, 2015.
The Respondent filed a return and motion for summary judgment on December 9, 2015. As the Petitioner is proceeding pro se, a Roseboro order was filed on December 11, 2015, advising the Petitioner that he had thirty-four (34) days to file any material in opposition to the motion for summary judgment. Petitioner was specifically advised that if he failed to respond adequately, the motion for summary judgment may be granted, thereby ending his case. Petitioner thereafter filed a request for entry of default judgment and a response in opposition to the motion for summary judgment on January 4, 2016.
This matter is now before the Court for disposition.
Petitioner was indicted in Florence County in June 2009 for possession of a controlled substance second offense (Diazepam, C-IV and Hydrocodone, C-III) and possession of cocaine base with intent to distribute [Indictment No. 2009-GS-21-00814]. See Court Docket No. 22-1, pp. 57-58. Petitioner was represented by Scott Floyd, Esquire. On October 12, 2010, after selecting a jury, Petitioner opted to plead guilty to the cocaine charge, and the State dismissed the controlled substance charge. See Court Docket No. 22-1, pp. 1-13; see also Court Docket No. 22-2. The trial court then accepted a report from the Department of Mental Health finding Petitioner competent to stand trial, and then heard and accepted the plea. Id . Petitioner was sentenced to eight (8) years imprisonment. See Court Docket No. 22-1, p. 11. Petitioner did not appeal the plea and/or sentence.
On June 28, 2011, Petitioner filed an application for post-conviction relief ("APCR") in state circuit court; Wilson v. State of South Carolina, No. 2011-CP-21-1678; raising the following issues:
Ground One: Ineffective Assistance of Counsel [and] Unlawfully sentencing and arguments of incompetency of [Petitioner].
Supporting Facts: Did not advise [Petitioner] of correct plea that was being entered before Court. Denial to get Petitioner proper review regarding competency - incompetency.
See Court Docket No. 22-1, p. 16.
Petitioner was represented in his APCR by Charles T. Brooks, Esquire, and an evidentiary hearing was held on Petitioner's application on January 31, 2012. See Court Docket No. 22-1, pp. 25-51). The PCR judge orally denied relief at the end of the hearing, followed up by a written order filed February 13, 2012 (dated February 9, 2012), denying relief on the APCR in its entirety. See Court Docket No. 22-1, pp. 49-50, 52-56.
Petitioner filed a timely appeal of the PCR court's order. Petitioner was represented on appeal by Robert M. Pachak, Appellate Defender of the South Carolina Office of Appellate Defense, who filed a Johnson petition requesting to be relieved and raising the following issue:
Whether plea counsel was ineffective for failing to challenge Petitioner's competency?
See Petition, p. 2 (Court Docket No. 22-3, p. 3).
Petitioner also submitted a pro se response to the Johnson petition, raising the following issues:
Ground One: Plea Counsel was inept and constitutionally ineffective for failing to challenge Petitioner's competency at the time he pleaded guilty.
Ground Two: Because Petitioner was not advised of the elements of the crime of possession of cocaine base with intent to distribute 2nd offense on the record, Petitioner's guilty plea is constitutionally invalid.
Ground Three: Because counsel did not investigate Petitioner's prior drug conviction for the purpose of [a defense to] an enhancement to a second offense by the Court, counsel's advice to the Petitioner to plead guilty was erroneous.
Ground Four: Because counsel advised the Petitioner to plead guilty when there is a flaw on the face of the charging instrument, counsel was ...