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Moore v. Warden of Allendale Correctional Institution

United States District Court, D. South Carolina

September 21, 2016

Shane Lamar Moore, #342772, Petitioner,
v.
Warden of Allendale Correctional Institution, Respondent.

          ORDER

          Bruce Howe Hendricks United States District Judge

         On August 25, 2015, Petitioner Shane Lamar Moore (“Moore” or “Petitioner”), proceeding pro se, filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 23, 2015, Respondent filed a motion for summary judgment, to which Moore filed a response in opposition on January 11, 2016.

         In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), the matter was referred to a United States Magistrate Judge for initial review. On March 11, 2016, Magistrate Judge Bristow Marchant issued a report and recommendation (“Report”) outlining the issues and recommending that the Court grant Respondent's motion for summary judgment. Moore filed written objections to the Report on April 11, 2016, and the matter is ripe for review.

         BACKGROUND[1]

         Petitioner was indicted in Greenville County in April 2009 for trafficking cocaine base. Petitioner, who was represented by Dorothy Manigault, Esquire, opted to plead guilty as charged on September 15, 2010, and was sentenced to fifteen years' imprisonment and was fined $50, 000.00.

         On September 23, 2010, plea counsel filed a notice of appeal on Petitioner's behalf. The appellate court dismissed the appeal.

         On May 10, 2011, Petitioner filed an application for post-conviction relief (“PCR”) raising a number of issues related to his guilty plea. On February 8, 2013, Petitioner, through counsel, filed an amended application raising additional claims of ineffective assistance of counsel. An evidentiary hearing was held on February 15, 2013, and by written order filed April 11, 2013, the PCR court denied relief.

         Petitioner appealed the PCR court's denial of relief, but the South Carolina Supreme Court denied Petitioner's petition for a writ of certiorari on October 8, 2014; the remittitur was sent down on October 24, 2014.

         Petitioner filed the instant § 2254 petition on August 25, 2015, alleging the following seven grounds, taken verbatim from his petition:

Ground #1: Was trial/plea counsel ineffective and in violation of Applicant[']s 5th, 6th and 14th Amendments of U.S. Constitution for not challenging the indictment not being filed with the Clerk of Court[']s office prior to trial pursuant to Rule 3C and coercing Petitioner into pleading guilty.
Ground #2: Did the trial/plea counsel violate petitioner's 6th Amendment right to the U.S. Constitution by failing to inform petitioner that he would not be able to appeal the suppression hearing after entering a guilty plea, therefore making the plea involuntary?
Ground #3: Did PCR counsel render ineffective assistance of counsel during Petitioner's PCR hearing that violated applicant's 5th, 6th and/or 14th Amendments to the U.S. Constitution?
Ground #4: Was Petitioner's 5th, 6th and 14th Amendment rights to the U.S. Constitution violated by the Petitioner being denied effective assistance of PCR counsel in his appeal of PCR being dismissed in addition to all issues raised in the PCR not being addressed and ruled upon by the PCR court pursuant to 17-27-80.
Ground #5: Was Petitioner's 5th, 6th and/or 14th Amendments to the U.S. Constitution violated by the trial court lacking subject matter jurisdiction to bring Petitioner to trial, convict, and/or sentence him when the indictment was never filed with the Clerk of Court[']s office prior to trial pursuant to Rule 3C of SCACR.
Ground #6: Was Petitioner's 5th, 6th and/or 14th Amendment rights to the U.S. Constitution violated by being denied his rights to a direct appeal by ineffective assistance of counsel pursuant to [State v. Wilson, 559 S.E.2d 591].
Ground #7: Was Petitioner's 5th, 6th and/or 14th Amendment rights to the U.S. Constitution violated by the Petitioner being denied due process throughout his entire judicial proceeding?

(ECF No. 1 at 12-16.)

         STANDARDS OF REVIEW

         I. The Magistrate Judge's Report

         The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of any portion of the Report to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).

         II. Sum ...


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