United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel, United States District Court Judge
matter comes before the Court on the Report and
Recommendation (R & R) of the Magistrate Judge (Dkt. No.
25). The R & R recommends that Petitioner's Motion
for Summary Judgment (Dkt. No. 21) be denied,
Respondent's Motion for Summary Judgment (Dkt. No. 18) be
granted, and the habeas petition be dismissed. For the
reasons stated below, the Court ADOPTS the R & R, DENIES
Petitioner's Motion for Summary Judgment, GRANTS
Respondent's Motion for Summary Judgment, and DISMISSES
the habeas petition.
December 2010, a Richland County Grand Jury indicted
Petitioner for assault with intent to commit criminal sexual
conduct (CSC) with a minor, first degree. (Dkt. No. 17-2 at
183). Petitioner was represented by Reynolds Blankenship and
Prentiss Shealy, and proceeded to a jury trial on January 9,
2012. After a 5-day trial, the jury returned a guilty
verdict. (Dkt. No. 17-2 at 24-26). Petitioner's
sentencing was deferred because the trial judge fell ill the
day the jury returned a verdict. (Dkt. No. 17-2 at 27-29).
February 2, 2012, an on-the-record in camera
chambers discussion between the trial judge and a juror took
place to address the juror's mid-deliberations disclosure
to her fellow jurors that she had been sexually molested as a
child. (Dkt. No. 17-2 at 31-45). The juror did not disclose
this information during the jury qualification process or
voir dire, and believed that her disclosure convinced three
jurors that Petitioner was guilty. (Dkt. No. 17-2 at 40).
Petitioner's counsel did not file a motion for a
mistrial, the Judge indicated that he was not inclined to
grant a mistrial because he believed the juror's voir
dire omission was unintentional. (Dkt. No. 17-2 at 49). The
parties consented to set aside the guilty verdict and reached
a negotiated plea agreement in which Petitioner would waive
presentment to the grand jury on a charge of lewd act upon a
minor, plead guilty, and receive a 15-year sentence, which
was the maximum charge available. (Dkt. No. 17-2 at 48-55).
On February 27, 2012, the trial judge accepted the plea and
sentenced Petitioner to 15 years with credit for time served.
(Dkt. No. 17-2 at 53).
filed a pro se notice of appeal. (Dkt. No. 17-3)
Upon direction by the court, Petitioner filed a pro
se Rule 203(d)(1)(B)(iv) explanation further stating the
basis for his appeal. (Dkt. No. 17-4). Petitioner's trial
and plea counsel notified the Court of Appeals that he
believed the record contained no appealable issues (Dkt. No.
17-7), and on February 2, 2013, the South Carolina Court of
Appeals found that Petitioner had failed to provide a
sufficient explanation as required by S.C. App. R.
203(d)(1)(B)(iv) and dismissed his appeal. (Dkt. No. 17-8).
The South Carolina Court of Appeals sent the remittitur to
the Richland County Clerk of Court on March 28, 2013. (Dkt.
24, 2013, Petitioner filed an application for post-conviction
relief (PCR) raising the following issues: "(A)
Ineffective Assistance of Counsel; (B) Did not knowingly or
intelligently plead guilty; [and] (C) Coerced into plea of
guilty." (Dkt. No. 17-2 at 62). After an evidentiary
hearing, the PCR court dismissed Petitioner's application
in its entirety on February 13, 2015.
timely filed a notice of appeal, and his appellate counsel
filed a Johnson petition seeking to be relieved as
counsel and raising the following issue: "Did the PCR
court err in failing to find plea counsel ineffective for not
insuring that Petitioner Spellman's guilty plea was
entered voluntarily and knowlingly?" (Dkt. Nos. 17-13,
17-14). Petitioner also filed apro se Johnson
petition. (Dkt. No. 17-15). On March 25, 2016, the South
Carolina Supreme Court filed an order denying certiorari and
granting appellate counsel's petition to be relieved
(Dkt. No. 17-16). The South Carolina Court of Appeals
remitted the matter on April 12, 2016. (Dkt. No. 17-17).
filed this Petition for Writ of Habeas Corpus on April 26,
2016. (Dkt. No. 1). Petitioner raises three grounds for
relief: (1) "Unknowing and Involuntary Plea due to
improper advice of counsel"; (2) "Ineffective
assistance of counsel for a variety of issues"; and (3)
"Los[t] Evidence." (Dkt. No. 22 (narrowing scope of
petition in response to Respondent's motion for s ummary
Magistrate Judge found that all of Petitioner's grounds
lacked merit and recommended granting Respondent's motion
for summary judgment and dismissing the petition. (Dkt. No.
25). Petitioner subsequently filed objections (Dkt. Nos. 27,
Report & Recommendation
Magistrate Judge makes only a recommendation to this Court,
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber,423 U.S. 261, 270-71
(1976). The Court may "accept, reject, or "5
modify, in whole or in part, the findings or recommendations
made by the magistrate." 28 U.S.C. § 636(b)(1).
This Court is charged with making a de novo
determination of those portions of the R & R or specified
proposed findings or recommendations to which objection is
made. Diamond v. ...