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Durant v. Warden of Broad River Correctional Institution

United States District Court, D. South Carolina, Charleston Division

February 1, 2016

Jeremy T. Durant, Petitioner,
v.
Warden of Broad River Correctional Institution, Respondent.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

MARY GORDON BAKER, Magistrate Judge.

The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. ยง 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 19; see also Dkt. No. 20.)

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.

The Petitioner brought the instant habeas action on or about November 25, 2014. ( See Dkt. No. 1.) On April 8, 2015, Respondent filed a Motion for Summary Judgment. (Dkt. No. 19; see also Dkt. No. 20.) By order filed April 8, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 21.) Petitioner filed a Response in Opposition to the Motion for Summary Judgment. ( See Dkt. No. 27-1.)

PROCEDURAL HISTORY

The Petitioner is currently confined at Broad River Correctional Institution of the South Carolina Department of Corrections ("SCDC"). In October of 2009, the Florence County Grand Jury indicted Petitioner for murder. ( See R. at 118-19.) Petitioner was represented by Grayson Smith, Esquire. ( See R. at 1.) On July 27, 2011, Petitioner pled guilty as charged before the Honorable Michael G. Nettles; that same day, Judge Nettles sentenced Petitioner to 43 years. (R. at 1-42.)

Petitioner did not file a direct appeal. However, on February 1, 2012, he filed an application for post-conviction relief ("PCR"). (R. at 78-84.) The following questions and answers appeared in his PCR application (verbatim):

10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) The lawyer did not question the witness properly.
(b) ineffective counsel.
(c) Attorney failed to consult with defendant on wish to testify
11. State concisely and in the same order the facts which support each of the grounds set out in (10):
(a) Witness did not see what was described.
(b) lawyer failed to question witness
(c) Attorney failed to inform proper plea deal w/court

(R. at 80.) On October 8, 2012, Petitioner, through his attorney Charles T. Brooks, III, amended his application for PCR. ( See Dkt. No. 20-2.)

On October 16, 2012, an evidentiary hearing was held before Judge Thomas A. Russo. (R. at 90-112.) Petitioner was present and represented by Charles Brooks, Esquire. ( See R. at 90.) In a written order dated October 29, 2012, Judge Russo denied the application for post-conviction relief and dismissed the petition. (R. at 113-17.)

Petitioner, through his attorney Susan B. Hackett of the South Carolina Commission on Indigent Defense, filed a Johnson Petition for Writ of Certiorari on April 23, 2013. ( See Dkt. No. 20-4.)[1] Through counsel, Petitioner raised the following issue:

Plea counsel's failure to obtain an independent competency evaluation of Petitioner violated Petitioner's Sixth and Fourteenth Amendment right to the effective assistance of counsel where multiple court-ordered evaluations revealed Petitioner's long history of suffering from mental retardation and incompetence.

(Dkt. No. 20-4 at 3 of 14.) Ms. Hackett also filed a petition to be relieved as counsel. ( Id. at 13 of 14.) Petitioner filed a pro se response to the Johnson petition. ( See Dkt. No. 20-6.)

In an order filed June 18, 2014, the South Carolina Court of Appeals denied the petition for writ of certiorari and granted counsel's request to withdraw. (Dkt. No. 20-7.) The matter was remitted to the lower court on July 7, 2014. (Dkt. No. 20-8.)

Petitioner then filed the instant habeas petition, wherein he raised the following grounds for review (verbatim):

GROUND ONE: Ineffective assistance of counsel
Supporting facts: Trial counsel failed to adequately investigate material facts and evidence to substantiate defense and/a mitigate the sentence and punishment trial counsel did not consult or advise me of my direct appeal rights, I would have chosen to appeal. Counsel failed to secure a prior favorable plea deal before it expired and failed to make me aware of the prior favorable plea of thirty years and I was sentenced to a harsher sentence of forty-five years. trial counsel failed to properly challenge the voluntariness of the letter and statement because I suffered mental deficiencies and coercion making them involuntary. Trial counsel failed to move for a pretrial suppression motions and in camera hearing to challenge the admission and chain of custody and illegal search and seizure of evidence in this case.
GROUND TWO: Involuntary guilty pleas
Supporting facts: Trial counsel misadvised me that the solicitor's office will not make any recommendation nor express an opinion to the sentencing range whatsoever, but the solicitor's office expressed it's opinion about the fairness of my sentence and punishment, had I known that they would do this I would not have pled guilty. the solicitor's office promise no recommendations or opinions on my sentence and punishment, but they expressed their opinion on the fairness of my sentence in violation of their promise. I was coerced to plead guilty when I was not in fact guilty of the critical elements of these crimes to support the conviction a plea.
GROUND THREE: Due process violation
Supporting facts: My due process was violated because I was discriminated against because of my mental health and learning disabilities in that I was not given adequate process to ensure my mental health and learning disabilities unduly coerced and impaired my voluntariness of guilty plea acceptance. I was coerced into pleading guilty when I was not given adequate process to compensate for my mental health and cognitive deficiencies prior to during and post the guilty plea proceedings. I was coerced into penning an apology letter and made to think such a letter would carry favor to the Judge what will ensure a sentence of probation.
GROUND FOUR: Conflict of interest.
Supporting facts: Conflict of interest is implicated when the solicitor's office misrepresented that they would adhere to the negotiated agreement yet breached the promise of the plea. My trial attorney sought to protect the interest of the victim's ...

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