United States District Court, D. South Carolina, Charleston Division
Colter, Jr, Petitioner, Pro Se.
Administrator of Barnwell County Detention Center,
Respondent, represented by James Anthony Mabry, S.C. Attorney
General's Office & Donald John Zelenka, S.C. Attorney
REPORT AND RECOMMENDATION OF MAGISTRATE
GORDON BAKER, Magistrate Judge.
Petitioner, a state prisoner, seeks habeas relief pursuant to
28 U.S.C. Â§ 2254. This matter is before the Court on the
Respondent's Motion for Summary Judgment, (Dkt. No. 20;
see also Dkt. No. 21), and Petitioner's Motion
for Summary Judgment, (Dkt. No. 24).
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
brought the instant habeas action in May of 2015. (
See Dkt. No. 1.) On September 25, 2015, Respondent
filed a Motion for Summary Judgment. (Dkt. No. 20; see
also Dkt. No. 21.) Petitioner filed a Motion for Summary
Judgment on or about November 5, 2015. (Dkt. No. 24.)
time he filed his petition, Petitioner was confined at the
Barnwell County Detention Center of the South Carolina
Department of Corrections ("SCDC"). In October of
2008, the Orangeburg County Grand Jury indicted Petitioner
for felony driving under the influence (death). (
See R. at 71-72.) Petitioner was represented by C.
Bradley Hutto, Esquire. ( See R. at 1.) Petitioner
pled guilty before the Honorable Edgar Dickson on August 6,
2009. (R. at 1-14.) Judge Dickson sentenced Petitioner to
eight years of incarceration. (R. at 12.)
did not file a direct appeal.
December 16, 2009, Petitioner filed an application for
post-conviction relief ("PCR"). ( See R.
at 15-23.) Petitioner raised the following grounds for relief
in his application:
(a) Ineffective Assistance of Counsel
(b) Bias By Trial Judge
(c) Denial of Preliminary Hearing
(R. at 17.) In support of those claims, Petitioner argued as
Assistance of Counsel
The Applicant alleges that Counsel (Hutto) was ineffective
which is a violation of the United States Constitution, Bill
of Rights, Amendment VI, effective assistance of counsel.
The Applicant alleges Counsel failed to properly investigate
the case lodged against Applicant. See Wiggins v.
Smith, 123 S.Ct. 2527 (2003).
The Applicant alleges counsel failed to investigate and
challenge the State's charge of Felony Driving Under The
Influence against the Applicant. The Applicant alleges that
he was not issued a citation in regards to a cause of the
accident in which he was charged with Felony Driving Under
The Applicant alleges he did not receive his
"Brady", Rule 5, Motion For Discovery, which is a
violation of his United States Constitution, Bill of Rights,
Amendment VI, right to be confronted with the evidence and
witnesses against him.
The Applicant alleges his guilty plea resulted from
ineffective assistance of counsel. See Hill v.
Lockhart, 474 U.S. 52 (1985).
The Applicant alleges that the Sentencing Judge worked in the
same law firm, and at the same time as Applicant's
Counsel, which, is a conflict of interest, and possibly bias
against sentencing Judge, depending on the relationship
between Sentencing Judge and Applicant's Attorney, as
well as the reason the Sentencing Judge left the law firm.
The Applicant alleges bias by the Judge. See Liteky v.
U.S., 510 U.S. 540 (1994); Arizona v.
Fulminate, 499 U.S. 279 (1991).
of Preliminary Hearing
The Applicant alleges he was denied his right to a
Preliminary Hearing. In State v. Brown (S.C. 1902)
62 S.C. 374, 40 S.E.776, it states in part: Magistrates are:
required to hold a preliminary investigation on the issue of
a warrant charging a crime at the demand of the defendant.
(R. at 22-23.)
December 1, 2011, an evidentiary hearing was held before the
Honorable Diane S. Goodstein. (R. at 29-62.) Petitioner was
present and represented by Andrew J. Brown, Esquire. (
See R. at 29.) In an order dated June 17, 2013, and
filed in September 2013, Judge Goodstein denied the
application for post-conviction relief and dismissed the
petition. (R. at 63-70.)
through Laura M. Caudy, Appellate Defender with the South
Carolina Commission on Indigent Defense, filed a
Johnson  Petition for Writ of Certiorari on
September 10, 2014. ( See Dkt. No. 21-2.) Through
counsel, Petitioner raised the following issue:
Whether Petitioner's guilty plea was knowingly,
intelligently, and voluntarily made where plea counsel failed
to properly investigate the case and discuss with Petitioner
the evidence plea counsel had received from the state
including the MAIT report, the autopsy report, and the
results of Petitioner's blood-alcohol content, and where
Petitioner testified ...