United States District Court, D. South Carolina
Stephen P. Casillo, Petitioner,
Warden, McCormick Correctional Institution, Respondent.
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
Stephen P. Casillo, a self-represented state prisoner, filed
this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the court pursuant
to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)
(D.S.C.). The respondent has filed a motion for summary
judgment. (ECF No. 15.) Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), Casillo was
advised of the summary judgment and dismissal procedures and
the possible consequences if he failed to respond adequately
to the respondent's motion. (ECF No. 17.) Casillo filed a
response in opposition to the respondent's motion. (ECF
No. 21.) Additionally, Casillo filed a motion for judgment on
the pleadings or, in the alternative, for summary judgment.
(ECF No. 22.) Having carefully considered the parties'
submissions and the record in this case, the court concludes
that further briefing is required on the respondent's
motion for summary judgment, specifically, whether Ground Two
of Casillo's Petition is procedurally barred from federal
habeas review. See Lawrence v. Branker, 517 F.3d
700, 714 (4th Cir. 2008); Longworth v. Ozmint, 377
F.3d 437, 448 (4th Cir. 2004); see also Coleman v.
Thompson, 501 U.S. 722 (1991).
raises the following issue in Ground Two of his Petition:
Ground Two: Involuntary Guilty Plea
Supporting Facts: Applicant was forced to
sign self-incriminating statements. If not for these
statements, applicant would not have accepted guilty plea,
and would have gone to trial. . . . Judge R. Lawton Mcintosh
stated applicant was never given a Jackson/Denno hearing to
determine whether or not the statements were voluntary to be
admitted for the Jury's consideration. And that there is
evidence of police coercion. Applicant alleges he was forced
to sign self-incriminating statements after being arrested,
based on officers denying him an attorney when he clearly
asked for one. That is why applicant refused to initial lines
3, 4, and 5, of the Advisory of Rights Form. (Dated 3/6/2006)
Applicant was arrested at 4:30 PM. It wasn't until 6:11
PM, officers coerced applicant to sign Advisory of Rights
Form, saying it would only reflect what was initialed.
Officers with-held medical treatment for 7 hours untill
applicant signed statements that the officers coerced, and
wrote. Applicants arm was badly ripped up by K-9. . . .
Applicant was denied prescribed pain and anxiety medication
by officers for 3 days, untill he signed self-incriminating
statements. Knowing he had been taking these for years, and
would suffer with-drawals. Which resulted in applicant having
a siezure, and having to go to Hospital Emergency Room.
Officers threatened to arrest applicants wife if he insisted
on an attorney, or did not sign statements.
(Pet., ECF No. 1) (errors in original; citations omitted).
court notes that this claim appears to be a distinct claim
from that raised to and ruled upon in Casillo's state
post-conviction relief ("PCR") action.
Casillo's claim here appears to be that his guilty plea
was entered into involuntarily because of the purportedly
coerced statements he made to police. The PCR court did not
address this issue in its order of dismissal. Rather, the PCR
court ruled on Casillo's claim that his guilty plea was
entered involuntarily because of plea counsel's
coercion and promise of a ten year sentence, and
Casillo's alleged intoxication. Moreover, while Casillo
arguably raised the instant claim in his
Anders brief to the South Carolina Court of
Appeals on direct appeal, the claim was not raised to the
plea court, and therefore, does not appear to have been
preserved for Anders review. See State v.
McKinney, 292 S.E.2d 598, 599 (S.C. 1982) (holding that
a defendant's failure to object to the involuntary or
unknowing nature of his guilty plea at the proceeding
precludes consideration of the issue on direct appeal);
see also McHam v. States, 746 S.E.2d 41, 50 (S.C.
2013) ("An appellate court conducting an Anders
review searches only for preserved issues of
arguable merit.") (emphasis added).
on the foregoing, it is hereby
that the parties shall have until July 5, 2016 to
file a memorandum of law addressing the issue of procedural
bar as to Ground Two. It is further
that the parties shall have until July 12, 2016 to
file a response, if either party so desires.
Anders v. California, 386 U.S.
738 (1967). Anders requires that counsel who seeks
to withdraw after finding the "case to be wholly
frivolous" following a "conscientious
examination" must submit a brief referencing anything in
the record that arguably could support an appeal; furnish a
copy of that brief to the defendant; and after providing the
defendant with an opportunity to respond, the reviewing court
must conduct a full examination of the ...