United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDonald, United States Magistrate Judge.
petitioner, a state prisoner proceeding pro se,
seeks habeas corpus relief pursuant to 28 U.S.C. § 2254.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B),
and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate
judge is authorized to review post-trial petitions for relief
and submit findings and recommendations to the District
petitioner is currently incarcerated at McCormick
Correctional Institution in the South Carolina Department of
Corrections (doc. 1 at 1). He was indicted by the Sumter
County Grand Jury in January 2012 on a multi-count indictment
for discharging a firearm into an occupied vehicle, armed
robbery, attempted armed robbery, and attempted murder.
Co-defendant Terrance Goodman was named on the same
indictment (doc. 127-28).
jury selection, the petitioner pled guilty before the
Honorable R. Ferrell Cothran on July 23, 2012 (app. 1-2). Tim
Murphy of the Third Circuit Public Defender's Office
represented the petitioner, and Assistant Third Circuit
Solicitor Jason Corbett appeared on behalf of the State (app.
petitioner's plea was entered pursuant to North
Carolina v. Alford, 400 U.S. 25, 31 (1970). As part of
the plea negotiation, the State dismissed the fourth charge
of attempted murder (app. 2). Also as part of the plea deal,
the petitioner received a negotiated sentence as follows: ten
years for discharging a firearm inside a vehicle, a
concurrent fifteen years for armed robbery, and another
concurrent fifteen years for attempted armed robbery (app.
11). The petitioner did not pursue a direct appeal.
approximately 6:00 p.m. on September 20, 2011, Corey Jones
(driver) and Emanuel Perry and Darrell Bennett were riding in
a vehicle in Sumter when they happened upon the petitioner
and his co-defendant Goodman. Jones slowed his vehicle, and
all five men began talking. Then, the petitioner and Goodman
produced weapons and demanded money from the occupants of the
vehicle, but only managed to get $20.00 from Jones and a cell
phone. Shortly thereafter, Jones drove off, and as they left
the scene, gunshots were fired at the vehicle by the
petitioner and Goodman, both of whom were arrested at the
scene that day. While they stood under arrest, one officer
dialed the missing cell phone number and located the ringing
cell phone in the same vicinity where the two suspects were
being held. Additionally, a bullet matching shell casings
recovered at the scene was found on the petitioner's
person during the booking process at the police station (app.
December 12, 2012, the petitioner filed a pro se
application for post-conviction relief ("PCR")
(2012-CP-43-02373), raising the following claims:
(a) I did not receive all of the State evidence against him
in my Rule 5. In my motion of discovery I didn't receive
any statements from the above victims or witnesses.
(b) I feel as if the public defender appointed to me
misrepresented me during my court proceeding. Public Defender
Timothy Murphy only came to speak with me twice about my
State filed a return on April 4, 2013 (app. 22-27). In the
return, the State interpreted the petitioner's claims as
falling into two categories: ineffective assistance of
counsel and involuntary guilty plea. The latter
interpretation applied to the petitioner's claim that he
felt his public defender misrepresented him during his
proceeding (app. 23).
evidentiary hearing was on April 14, 2015, before the
Honorable George C. James, Jr. (app. 26). Charlie Johnson
represented the petitioner at the hearing, and Assistant
Attorney General Daniel Gourley appeared on behalf of the
State (id.). At the hearing, the petitioner's
counsel represented that they would proceed on two claims:
(1) ineffective assistance for counsel's failure to
property investigate and identify potential witnesses and (2)
an alleged conflict of interest stemming from the Third
Circuit Public Defender's Office's representation of
both petitioner and his co-defendant (app. 31). The
petitioner, his trial counsel, and Quinton Singleton
testified (app. 29). Judge James denied and dismissed the
petitioner's application in its entirety by order of
dismissal filed September 10, 2015 (app. 115-26).
petitioner appealed the PCR denial by way of a
Johnson petition for writ of certiorari to the South
Carolina Supreme Court (doc. 13-3). He was represented by
Wanda Carter of the South Carolina Office Commission on
Indigent Defense. In the Johnson
petition, the petitioner raised the following
The PCR judge erred in denying petitioner's allegation
that a conflict of interest existed with respect to his
attorney's representation of him because trial counsel
practiced law in the same public defender office where his
co-defendant's attorney, who was a public defender also,
practiced law and this concurrent legal representation
violated his Sixth Amendment right to effective assistance of
(Doc. 13-3 at 2).
petitioner filed a pro se Johnson petition with the
Supreme Court of South Carolina, arguing a similar issue:
The PCR judge erred in denying the petitioner's
allegation that a conflict of interest exist[ed] with respect
to his attorney representation of him because the Petitioner
never waived his right to have multiple representation.
"However, " both attorneys practiced law in the
same public defenders office and this concurrent legal