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Arevalos v. McFadden

United States District Court, D. South Carolina, Rock Hill Division

September 21, 2017

Jose Reyes Arevalos, Petitioner,
v.
Warden Joseph McFadden, Respondent.

          ORDER

          Timothy M. Cain United States District Judge

         This matter is before the court on Petitioner Jose Reyes Arevalos' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge.[1]Magistrate Judge Paige J. Gossett filed a Report and Recommendation (“Report”) recommending Respondent's Summary Judgment Motion (ECF No. 26) be granted and the petition be dismissed with prejudice. (ECF No. 49). The Magistrate Judge advised the parties of the procedures and requirements for filing objections to the Report and the serious consequences if they failed to do so. Id. at 16. Petitioner has timely filed objections to the Report. (ECF No. 60).

         The court is obligated to conduct a de novo review of every portion of the magistrate judge's report to which objections have been filed. Id. However, the court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the magistrate judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         I. Background/Procedural History

         Briefly, Petitioner was indicted in May 2010 for accessory before the fact to first degree burglary and two counts of accessory before the fact to murder. He was represented by attorney Patrick L. Mangrum, and on July 10, 2010, Petitioner pled guilty to accessory before the fact to first degree burglary and two counts of accessory after the fact to murder. Petitioner was sentenced to thirty years imprisonment for the accessory before the fact to first degree burglary charge and consecutive fifteen years imprisonment for the two counts of accessory after the fact to murder. He did not appeal his convictions or sentences.

         On January 29, 2013, Petitioner filed a pro se application for post-conviction relief (“PCR”) raising ineffective assistance of counsel. Following an evidentiary hearing, the PCR Court denied Petitioner relief on May 8, 2015.

         Petitioner appealed and his appellate counsel, Assistant Appellate Defender Robert M. Pachak, filed a Johnson petition raising a single issue of whether petitioner's guilty plea was knowingly and voluntarily entered.[2] Petitioner filed a response to the Johnson petition, raising the following issues: 1) Whether PCR Counsel failed to inform Petitioner of the Petitioner's obligation to present witnesses whose testimony was relevant to substantiate the allegation on PCR; and 2) Whether PCR Counsel failed to subpoena the translator who wrote Petitioner's statement and the translator at the plea proceeding to substantiate Petitioner's PCR allegations.

         The South Carolina Supreme Court denied Petitioner's petition for a writ of certiorari. The remittitur was issued May 23, 2016. On September 30, 2016, Petitioner then filed this habeas petition raising two grounds for relief.

         II. Discussion

         In his habeas petition, Petitioner raises the following claims:

Ground One: Petitioner's guilty plea was not knowingly and voluntarily entered.
Supporting Facts: Petitioner had problems with the police officer acting as translator present for his statement. Counsel was not bilingual and did not have a translator. Counsel failed to inform Petitioner that he could challenge the statements translated by a police officer. Petitioner believed there was an agreement with the prosecution and counsel told Petitioner he would receive between zero to fifteen years and no one explained the difference between before and after the fact.
Ground Two: Counsel failed to subpoena the translator who wrote Petitioner's statement and the plea translator to substantiate PCR grounds[.]
Supporting Facts: Trial counsel admitted that the interpreter “had a tough time ...

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