United States District Court, D. South Carolina
Richard Mark Gergel United States District Court Judge
This matter comes before the Court on the Report and Recommendation (R & R) of the Magistrate Judge (Dkt. No. 31), recommending that Respondent's Motion for Summary Judgement (Dkt. No. 18) be granted and that Petitioner's Motion for Evidentiary Hearing (Dkt. No. 27) be denied. For the reasons stated below, the Court ADOPTS the R & R in part, GRANTS Respondent's Motion for Summary Judgment, and DENIES Petitioner's Motion for Evidentiary Hearing.
A jury convicted Petitioner for trafficking in cocaine and possession of cocaine with intent to distribute within proximity of a public park in March of 2009. Petitioner was to twenty-five (25) years for trafficking and to eight years for the proximity to a public park charge. (Dkt. No. 19-1 at 264-65).
Petitioner sought a direct appeal of his convictions on the issue of whether the trial court erred in giving a jury charge on a statutory inference without telling the jury that they could reject the inference. On May 17, 2011, the South Carolina Court of Appeals issued an unpublished opinion affirming the convictions (Dkt. No. 19-5), and the Court of Appeals issued the remittitur on June 2, 2011 (Dkt. No. 19-5).
On January 30, 2012, Petitioner filed a pro se post-conviction relief (PCR) application wherein he alleged a claim of ineffective assistance of counsel on the grounds of failure to investigate and failure to provide effective representation. Petitioner also alleged a claim of denial of due process. The South Carolina Circuit Court issued its order on April 11, 2013, which denied relief and dismissed Petitioner's application. (Dkt. No. 19-1 at 257-63)." Petitioner appealed the denial of relief.
On June 23, 2014, Appellate Defender Robert M. Pachak who represented the Petitioner on appeal, filed a Johnson petition for Writ of Certiorari in the Supreme Court of South Carolina, and raised the following issue: "Whether defense counsel was ineffective for failing to investigate?" (Dkt. No. 19-7). Petitioner's counsel also filed a petition to be relieved of appointment because he was of the belief that the appeal was without merit. (Dkt. No. 19-7 at 7).
On July 24, 2013, Petitioner was advised of his right to file a "pro se response, " and raise any issues he believed should be considered in the appeal. (Dkt. No. 19-8). Petitioner did not file pro se response. The petition was denied by the South Carolina Court of Appeals on January 13, 2015. On January 29, 2015, the Court of Appeals issued the remittitur. (Dkt. No. 19-10, 19-11).
The appeal from Petitioner's first application for PCR was still pending when Petitioner filed a second PCR application on August 14, 2013. (Dkt. No. 19-12). The second PCR application raised the following claims: ineffective assistance of PCR counsel, ineffective assistance of trial counsel, and violation of Due Process. (Id. at 3). Respondent filed a return and moved to dismiss Petitioner's action as successive and untimely on October 17, 2013. (Dkt. 19-13). On October 25, 2013, the Third Judicial Circuit filed a conditional order of dismissal, providing the Petitioner with the opportunity to show cause as to why the action should not be dismissed as successive and untimely. (Dkt. No. 19-14)
Petitioner filed his response in opposition of the dismissal on November 6, 2013. (Dkt. No. 19-15). Petitioner's response was denied and dismissed with prejudice by final order on May 13, 2014. (Dkt. No. 19-16). Petitioner subsequently appealed the dismissal. The Supreme Court of South Carolina dismissed the appeal because Petitioner failed to show that there was an "arguable basis for asserting that the determination by the lower court was improper" on June 19, 2014. (Dkt. No. 19-17), and the remittitur was issued on July 8, 2014. (Dkt. No. 19-18).
On February 3, 2015, Petitioner filed this petition for writ of habeas corpus raising the following grounds for relief:
Ground One: Ineffective assistance of trial counsel.
Supporting Facts: (1) Trial Counsel was ineffective in failing to investigate; and (2) Trial counsel was ineffective for failing to file a speedy trial motion.
(Dkt. No. 1 at 4). A return, memorandum, and motion for summary judgement were filed by Respondent on May 29, 2015. (Dkt. No. 19). On August 3, 2015, Petitioner filed a response in opposition to the motion for summary judgement, and requested an evidentiary hearing. (Dkt. No. 25). In his response, Petitioner conceded that "the state court reasonably applied federal law in denying his ineffective assistance claim, " and stated that he was "respectfully withdrawing] his failure to investigate claim." (Id. at 1). Petitioner also claimed that he was "entitled to an evidentiary ...