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Smith v. Stirling

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

May 27, 2016

Chas Lamous Smith, Petitioner,
v.
Bryan P. Stirling, Director, S.C. Department of Corrections; Cecilia Reynolds, Warden, Lee Correctional Institution; and State of South Carolina, Respondents.

          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. § 2254. This matter is before the Court on the Respondents' Motion for Summary Judgment. (Dkt. No. 16; see also Dkt. No. 15.)

         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, through counsel, brought the instant habeas action on June 24, 2015. ( See Dkt. No. 1.) On October 14, 2015, Respondents filed a Motion for Summary Judgment. (Dkt. No. 16; see also Dkt. No. 15.) Petitioner filed a Response in Opposition to that motion. ( See Dkt. No. 18.)

         PROCEDURAL HISTORY

         The Petitioner is currently confined within the South Carolina Department of Corrections ("SCDC"). In May of 2009, the Cherokee County Grand Jury indicted Petitioner on the following charges: (a) accessory before the fact to felony murder, (b) accessory before the fact to felony burglary first degree (violent), and (c) accessory before the fact to felony armed robbery. (Dkt. No. 15-1 at 3-8 of 87.) Petitioner was represented by Fletcher Smith, Esquire. ( See Dkt. No. 15-1 at 9 of 87.) On January 15, 2010, Petitioner pled guilty to accessory before the fact to felony burglary in the first degree and accessory before the fact to armed robbery before the Honorable J. Mark Hayes, II. ( See Dkt. No. 15-1 at 9-29 of 87.) Pursuant to plea negotiations, "[t]here was a recommendation of a 25 year [sentencing] cap." ( Id. at 12 of 87.) On January 15, 2010, Judge Hayes sentenced Petitioner to twenty years, concurrent, on each of the two convictions. (Dkt. No. 15-1 at 28 of 87.)

         Petitioner did not file a direct appeal, but filed an application for post-conviction relief ("PCR") on January 14, 2011. (Dkt. No. 15-1 at 32-37 of 87.) The following questions and answers appeared in his PCR application:

10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) Ineffective assistance of counsel
11. State concisely and in the same order the facts which support each of the grounds set out in (10):
(a) Failure to aid in the defendant's cooperation with the government; failure to file an appeal within 10 days; failure to adequately explore plea negotiations; failure to communicate with client; and other such issues that may be determined through the discovery process.

(Dkt. No. 15-1 at 33-34 of 87.)

         On January 31, 2012, an evidentiary hearing was held before Judge Frank R. Addy. (Dkt. No. 15-1 at 42-78 of 87.) Petitioner was present and represented by Beattie B. Ashmore, Esquire. (Dkt. No. 15-1 at 42 of 87.) In an order dated April 27, 2012, Judge Addy granted Petitioner's request for a review of direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974), [1] and denied the remainder of the remainder of the application for post-conviction relief. (Dkt. No. 15-1 at 80-87 of 87.)

         On August 20, 2012, Beattie Ashmore, Esquire, filed a Direct Appellate Brief Pursuant to White v. State . (Dkt. No. 15-5.) In this filing, Petitioner raised the following issues:

I. The appellant's sentence should be vacated because it was vastly disparate to that of his co-defendant and the trial court failed to articulate its reasons for imposing the disparity.
II. The appellant's sentence violates his Eighth Amendment right to be free of cruel and unusual punishment.

(Dkt. No. 15-5 at 5 of 14.) Also on August 20, 2012, Mr. Ashmore filed a petition for writ of certiorari, wherein he raised the following issues:

I. Counsel was ineffective for failing to investigate the petitioner's initial verbal statement to law enforcement.
II. The petitioner was prejudiced by counsel's failure to investigate petitioner's initial verbal statement to law enforcement when a co-defendant who made a similar statement was permitted to plead to a lesser crime with a shorter statutory maximum sentence.
III. Counsel was ineffective for failing to present substantial mitigating evidence to the court at the petitioner's plea and sentencing hearing.
IV. The petitioner was prejudiced by counsel's failure to present substantial mitigating evidence to the court at the petitioner's plea and sentencing hearing, which resulted in the petitioner's disparate sentence.
V[]. The petitioner did not knowingly and voluntarily waive his right to a direct appeal, thus is entitled to a direct appeal pursuant to White v. State .

(Dkt. No. 15-4 at 2 of 12.)

         On January 29, 2013, the Supreme Court of South Carolina transferred Petitioner's case to the South Carolina Court of Appeals. (Dkt. No. 15-8.) In an unpublished opinion filed June 30, 2014, the South Carolina Court of Appeals denied certiorari as to Petitioner's Questions One through Four, but granted certiorari as to Petitioner's Question Five and proceeded to a review of the direct appeal issues. ( See Dkt. No. 15-9 at 2 of 2.) The South Carolina Court of Appeals concluded that because Petitioner did not object to his sentences at his plea hearing, the errors he attempted to assert were not preserved for review. ( Id. ) The lower court's decision was therefore affirmed, (Dkt. No. 15-9), and the matter was remitted to the lower court on July 17, 2014. (Dkt. No. 15-10.)

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

GROUND ONE: Counsel was ineffective in failing to investigate the circumstances of Petitioner's verbal statement to law enforcement.
GROUND TWO: Counsel was ineffective for failing to present important mitigating evidence at the plea and sentencing hearings.

(Dkt. No. 1 at 6-8 of 16; see also Dkt. No. 1-1.)

         APPLICABLE LAW

         Summary Judgment Standard

         Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are material' when they might affect the outcome of the case, and a genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth.,597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that ...


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