United States District Court, D. South Carolina, Charleston Division
Antonio D. Bordeaux, Petitioner,
Joseph McFadden, Warden; Respondent.
R. Bryan Harwell United States District Judge
Petitioner, Antonio D. Bordeaux, a state prisoner proceeding pro se, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See [ECF No. 1]. Pending before the Court is Respondent’s motion for summary judgment [ECF No. 20] pursuant to Rule 56 of the Federal Rules of Civil Procedure. This matter is before the Court with the Report and Recommendation (R & R) of United States Magistrate Judge Mary Gordon Baker. See [ECF No. 30]. The Magistrate Judge recommended granting the Respondent’s motion for summary judgment and dismissing Petitioner’s petition. For the reasons stated below, the Court adopts the Magistrate Judge’s R & R, grants Respondent’s motion for summary judgment, and dismisses Petitioner’s § 2254 petition with prejudice.
Factual and Procedural History
This matter arises from the criminal conviction and sentence of Petitioner, Antonio D. Bordeaux, for two counts of armed robbery and two counts of first degree burglary. On October 19, 2005, Petitioner pled guilty and was sentenced to twenty-four years on each of the convictions for armed robbery and twenty-five years for each of the convictions for first degree burglary, with the sentences to run concurrently. The sentencing judge also ordered that upon service of twenty years imprisonment, the balance of Petitioner’s sentences would be suspended and he would be placed on probation for a period of three years.
The plea colloquy established that Petitioner was pleading guilty to first degree burglary as opposed to second degree burglary. The sentencing sheets, however, indicated that Petitioner pled guilty to “Burglary 2nd Degree, ” included the CDR Code for second degree burglary, and referenced S.C. Code Ann. § 16-11-312, the second degree burglary statute. The sentencing sheets also reflected that Petitioner had been sentenced to twenty-five years imprisonment, which is above the maximum allowed sentence for second degree burglary, but below the statutory maximum sentence for first degree burglary.
Petitioner’s direct appeal was dismissed and the remittitur was issued on June 12, 2006. On September 29, 2006, Petitioner filed an application for post-conviction relief (“PCR”) raising various issues of ineffective assistance of counsel and that his guilty plea was not knowing and voluntary. On April 18, 2008, an evidentiary hearing was held on Petitioner’s PCR application.
In a written order dated May 13, 2008, Judge Nettles concluded that Petitioner had failed to establish that his counsel was ineffective under Strickland v. Washington, 466 U.S. 688 (1984). However, due to the conflict between the plea transcript and the sentencing sheets as to whether Petitioner pled guilty to first degree or second degree burglary, Judge Nettles granted the application for post-conviction relief as to Petitioner’s burglary convictions stating that “the sentencing sheets take precedent over the plea transcript because a sentencing sheet is essentially a contract between the applicant, the applicant’s trial counsel, and the court.” The State appealed arguing that the PCR court erred in finding that Petitioner’s burglary sentences were illegal when the plea transcript established that Petitioner pled guilty to two counts of first degree burglary but the sentencing sheets state Petitioner pled guilty to two counts of second degree burglary. In an unpublished opinion filed on May 9, 2012, the South Carolina Court of Appeals reversed the PCR court and remanded “for clarification as to the offenses to which [Petitioner] pled guilty.” Bordeaux v. States, No. 2012-UP-284, 2012 WL 10841809, at *1 (S.C. Ct. App. May 9, 2012).
The State filed a petition for a writ of certiorari to the South Carolina Supreme Court questioning whether the Court of Appeals erred by remanding the case when the plea transcript is patently clear that Respondent pled guilty to first degree burglary. On October 29, 2014, the South Carolina Supreme Court issued a published opinion affirming in part and reversing in part the decision of the South Carolina Court of Appeals. See Bordeaux v. State, 765 S.E.2d 143 (S.C. 2014). Specifically, the S.C. Supreme Court held that an unambiguous oral sentencing pronouncement took precedence over ambiguous sentencing sheets in a prosecution for burglary in the first degree, where the oral sentence was subject to only one interpretation and it was clear from the plea transcript that defendant pled guilty to two counts of burglary in the first degree. Bordeaux, 765 S.E.2d at 145-46. Accordingly, the S.C. Supreme Court found, as a matter of law, that Petitioner pled guilty to two counts of first degree burglary and was properly sentenced to twenty-five years imprisonment pursuant to his negotiated plea agreement. Id. at 146.
Petitioner then filed the current habeas petition arguing that his burglary sentences were illegal because the plea transcript indicates he pled guilty to two counts of first degree burglary but the sentencing sheets signed by Petitioner reflect a guilty plea to two counts of second degree burglary. Respondent filed a return and motion for summary judgment on August 24, 2015. On January 22, 2016, the Magistrate Judge issued an R&R recommending that Respondent’s motion for summary judgment be granted and Petitioner’s petition dismissed with prejudice. Petitioner filed objections to the R&R on March 11, 2016.
Legal Standards of Review
I. Review of the Magistrate Judge’s Report & Recommendation
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 to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The right to de novo review may be waived by the failure to file timely objections. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The district court is obligated to conduct a de novo review of every portion of the Magistrate Judge’s report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate’s proposed findings and recommendations.” Id.
II. Summary Judgment Review
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2010). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). When no genuine issue of any material fact exists, summary judgment is appropriate. See Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. However, "the mere existence of some alleged factual ...