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Terry v. Cartledge

United States District Court, D. South Carolina

March 14, 2016

Terrence Dimingo Terry, #307935, Petitioner,
Mr. Leroy Cartledge, Warden of McCormick Correctional Institution, Respondent.


Bruce Howe Hendricks United States District Judge

Petitioner Terrence Dimingo Terry, (“Petitioner”), proceeding pro se, filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the action was referred to United States Magistrate Judge Kevin McDonald, for pretrial handling and a Report and Recommendation (“Report”). Judge McDonald recommends that Respondent’s motion for summary judgment be granted and Petitioner’s § 2254 petition be dismissed, with prejudice. (ECF No. 156.) The Report sets forth in detail the relevant facts and standards of law on this matter and the Court incorporates them without recitation.


Petitioner filed this action against Respondent on July 28, 2010, [1] alleging, inter alia, ineffective assistance of trial counsel. On January 26, 2016, the Magistrate Judge issued a Report; and on February 19, 2016, Petitioner filed his Objections. (ECF No. 158.) The Court has reviewed the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.[2]


The Magistrate Judge makes only a recommendation to the court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

In reviewing these pleadings, the Court is mindful of the petitioner’s pro se status. When dealing with a pro se litigant, the Court is charged with liberal construction of the pleadings. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not mean, however, that the Court can ignore a petitioner’s clear failure to allege facts that set forth a cognizable claim, or that the Court must assume the existence of a genuine issue of material fact where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).


As noted above, Petitioner filed objections to the Magistrate Judge's Report which the Court has carefully reviewed. Petitioner devotes the first thirty pages of his fifty-page filing[3] to “assessments and corrections of the factual data in the segments”- i.e., the procedural history as summarized by the Magistrate Judge. (ECF No. 158 at 1.) To the extent this portion of Petitioner’s filing raises specific objections, the Court has conducted a thorough de novo review. The Court, however, finds no error in the Magistrate Judge’s summation of the procedural history. The procedural posture of this case is admittedly complex, and the Magistrate Judge took great care to explain in detail Petitioner’s actions in both state and federal court-specifically, Petitioner’s first action for PCR relief and the State’s appeal of that decision, Petitioner’s first federal habeas petition, Petitioner’s second action for PCR relief and his appeal of that decision, and the amended federal habeas petition that is now before this Court. (ECF No. 156 at 1-20.)

A stated by the Magistrate Judge, Petitioner raised a number of claims in his first PCR application, which he filed on November 11, 2005. (ECF No. 148-1 at 21-27.) The PCR court found all of the claims to be without merit except for the allegation that Petitioner was not advised as to the meaning of sexual battery prior to pleading guilty to two counts of Lewd Act Upon a Child and one count of Criminal Sexual Conduct with a Minor-the PCR court granted Petitioner’s motion for PCR on this basis. (Id. at 147-48.) The State then filed a motion to alter or amend the final order, (Id. at 151-53), and Petitioner also filed a pro se motion for reconsideration. However, because Petitioner was represented by counsel at this time, his pro se motion was found to be ineffective and void. (ECF No. 148-1 at 165-66) See Foster v. State, 379 S.E.2d 907, 907 (S.C. 1989) (finding that South Carolina courts do not allow “hybrid representation, that is, representation which is partially pro se and partially by counsel, ” and instructing Clerk of Court to return document submitted by petitioner because she was “represented by counsel in th[e] post-conviction matter pending before the Court”). The PCR court denied the State’s motion to amend on July 2, 2007. (Id. at 165-66.) The South Carolina Supreme Court then reversed the decision of the PCR judge after the State filed an appeal, finding that plea counsel’s deficient performance was cured by the plea colloquy even though there was no specific discussion of the term sexual battery. (Id. at 225-26.)

On April 16, 2008, Petitioner filed a pro se motion to remove counsel for self-representation (ECF No. 64-29), which the South Carolina Supreme Court denied on June 2, 2008 (ECF No. 148-3 at 61). The Magistrate Judge did not mention this motion and its subsequent denial in the Report. However, he did not need to because the denied motion had no ultimate bearing on Petitioner’s grounds for relief. Petitioner’s claim here that appellate representation was “forced upon him[]” is without merit. (ECF No. 158 at 6.) There is no federal or state constitutional right to proceed pro se in an appeal from a criminal conviction.[4] See State v. Roberts, 614 S.E.2d 626, 629 (S.C. 2005) (“Appellant clearly does not have a federal constitutional right to proceed pro se in this appeal from his criminal conviction. We also find there is no state constitutional provision which confers such a right.”). Thus, the South Carolina Supreme Court appropriately exercised its discretion in denying Petitioner’s motion to remove counsel. Id. (“[T]he Court may, in its discretion, allow an appellant to proceed pro se in an appeal from a criminal conviction.”).

Petitioner filed a federal habeas petition on July 28, 2010. (ECF No. 148-1 at 228.) The Magistrate Judge exhaustively detailed the grounds for relief raised in the petition, explaining that there were originally three separate petitions, which the Court combined as one by order. (ECF No. 156 at 9-14.) Respondent filed a motion for summary judgment, which the Court dismissed without prejudice and with leave to re-file after Petitioner had exhausted his state remedies and filed an amended petition. (ECF No. 79 at 9.) The Court also stayed the current case pending exhaustion. (Id.)

Petitioner then filed a second PCR application on February 20, 2012. (ECF No. 148-4 at 2.) The PCR court found that all of the claims except for Petitioner’s Austin claim[5] must be dismissed for failure to comply with the one year state statute of limitations. (ECF No. 148-5 at 58.) See S.C. Code Ann. § 17-27-45 (“An application for relief filed pursuant to this chapter must be filed within one year after the entry of a judgment of conviction or within one year after the sending of the remittitur to the lower court from an appeal or the filing of the final decision upon an appeal, whichever is later.”). Petitioner pled guilty to the offenses he challenged in his PCR actions on March 8, 2005. Pursuant to S.C. Code Ann. § 17-27-45, the state statute of limitations began to run on this date. Because Petitioner did not file his second PCR action until over six years later on February 20, 2012, the second PCR application was not timely filed. As a result, the PCR court found that it was not a properly filed application for state post-conviction relief and dismissed all of the claims other than the Austin claim as untimely. (ECF No. 148-5 at 58-59.) The PCR court then discussed the evidence relevant to Petitioner’s Austin claim and found that Petitioner did not demonstrate that his PCR counsel was deficient for not filing the notice of appeal in the first PCR action. (Id. at 60- 61.) The PCR court therefore denied the second PCR application and dismissed the action with prejudice. (Id. at 62.) The South Carolina Supreme Court denied the petition for a writ of certiorari and the remittitur was issued on June 22, 2015. (ECF No. 148-10; 148-11.)

Petitioner filed his amended habeas petition on July 24, 2015, setting forth the same grounds raised in his original habeas petition. (ECF No. 137.) Respondent then filed another motion for summary judgment, (ECF No. ...

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