Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Watts v. Warden Broad River Correctional Institution

United States District Court, D. South Carolina, Charleston Division

January 31, 2018

Harold Watts, Petitioner,
v.
Warden Broad River Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE.

          MARY GORDON BAKER UNITED STATES DISTRICT JUDGE.

         On August 24, 2016, Harold Watts (“Petitioner”), a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] (Dkt. No. 1.) On December 5, 2016, the Respondent filed a Motion for Summary Judgment. (Dkt. No. 16.) This matter is before the court pursuant to the provisions of Title 28, United States Code Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), for a Report and Recommendation on the Respondent's Motion for Summary Judgment. On December 5, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Motion for Summary Judgment, the dismissal procedures, and the possible consequences if he failed to adequately respond to the Respondent's Motion. (Dkt. No. 18.) On December 27, 2016, Petitioner filed his Response in Opposition to the Motion for Summary Judgment, and on January 3, 2017, the Respondents filed a Reply. (Dkt. Nos. 20, 21.) Accordingly, this case is ripe for review. As the court finds that the issues have been adequately briefed, it has determined that oral argument is not necessary. See Local Civ. Rule 7.06 (D.S.C.).

         I. PROCEDURAL HISTORY

         Petitioner is currently confined in the South Carolina Department of Corrections' Broad River Correctional Institution. (Dkt. No. 1 at 2.) In September, 2012, Petitioner was indicted by the Greenville County Grand Jury for Attempted Murder (2012-GS-23-5528, Count 1) and Burglary in the First Degree (2012-GS-23-5528, Count 2). (App. 100.) Petitioner was represented by James W. Bannister, Esquire, and the State was represented by Assistant Solicitor Allen Fretwell. Before trial, the State served Petitioner with a Notice that if he were convicted at trial, the State would seek a sentence of life without the possibility of parole (“LWOP”) pursuant to South Carolina's recidivist statute.[2]

         On April 8, 2013, after a jury was selected for Petitioner's trial, Petitioner changed his plea and pled guilty to Attempted Murder and Burglary in the First Degree (Counts 1 and 2 of the indictment) before the Honorable Letitia Verdin, Circuit Court Judge. (See Plea transcript, App. 1-21.) In exchange for the Petitioner's plea of guilty to both charges of the Indictment, the State agreed to withdraw its Notice seeking LWOP. (Id. at 4.) After Judge Verdin accepted Petitioner's guilty pleas, she sentenced Petitioner to thirty-five (35) years for Burglary in the First Degree and thirty (30) years concurrent for Attempted Murder. (App. 1-21, 101-02.)

         Petitioner filed a pro se Notice of Intent to Appeal in the South Carolina Court of Appeals but did not properly serve the Notice of Appeal on opposing counsel; accordingly, on July 1, 2013, the South Carolina Court of Appeals dismissed the appeal pursuant to Rule 221(b), SCACR, because it was not properly served on opposing counsel. (App. 22.) On August 16, 2013, the Court of Appeals issued the Remittitur, stating that because Petitioner was represented by counsel, it would not consider a letter from Petitioner as a Petition for Rehearing. (App. 23.)

         On February 28, 2014, Petitioner timely filed an application for post-conviction relief (“PCR”) (Civil Action 2014-CP-23-1117). (App. 25-33.) In his PCR application and attachments thereto, Petitioner alleged the following grounds, set forth verbatim:

(A) Ineffective Assistance of Counsel
1. Counsel was ineffective when he failed to file notice of appeal as I requested. Counsel should have raised the concerns with the indictment. The court accepting a conditioned plea.
2. Counsel was ineffective when he failed to investigate the burglary charge. Had he investigated he would have found that this was my leagal [sic] residence and the victim my common law wife.
3. Counsel was ineffective when he failed to seek a charge of a lesser offense than burglary. When the facts prove that this was not burglary. Counsel even stated on the record that defendant denies entering the residence.
(A) The Grand Jury did not meet on September 18, 2012 as dated.
(B) The attempted murder charge lacks any elements that put appellant on notice of the charge.
(C) As a result counsel was ineffective when he failed to object to the court having jurisdiction to accept a plea to a defective indictment.
4. Counsel was ineffective when he failed to provide me with all of my Rule 5 material with-holding several parts that were very important to my decision to plead guilty.
5. Counsel was ineffective when he failed to have a mental evaluation done on me given the serious nature of the charges.
6. Counsel was ineffective when he failed to protect my constitutional right to have a bond hearing.
7. Counsel was ineffective when he fail to investigate the indictment. Had he done any inestigation [sic] he would have found the indictment to be defective.
8. Cumulative error of counsel constitute ineffective assistance of counsel and denial of a fair trial to the defendant.
9. Counsel was ineffective when he failed to request a change of venue.
10. Counsel was ineffective when he failed to have a crime scene investigation done. Had he had an investigation done he would have found that the facts as presented by the State did not line up with the crime area. An investigation of the crime scen [sic] area would show that the events presented as fact could not have taken place as presented by the State. Had this information been available I would not have plead guilty. This information would show that the charges in the indictment are not supported by the evidence.
(B) Court lack [sic] subject matter jurisdiction
(C) Defective Indictment
(D) Prosecural [sic] Misconduct

(App. 27, 32-33.) A Return was filed on behalf of the State on August 22, 2014. (App. 34-38.) Petitioner also submitted a Memorandum in Support of Post-Conviction Application (“Supporting Memorandum”), which elaborated on the issues raised in his PCR application. (App. 40-45). The Supporting Memorandum set forth the following arguments, verbatim:

1. Counsel was ineffective when he failed to file a notice of appeal as I requested. Had counsel file the notice of appeal as requested I have been able to raise the trial court's error in accepting a conditional plea to the charges of Burglary 1st Degree and Attempted Murder. Conditional Pleas are unconstitutional See White v. State 208 S.E.2d 35, Robinson v. State 754 S.E.2d 862.
2. Counsel was ineffective when he allowed defendant to plead guilty to Burglary 1st and Attempted Murder, when at the hearing trial counsel told the Court that defendant denies “entering the dwelling, ” and that defendant denies any “intent” in the Attempted Murder charge. Once defendant made this denial (through his attorney) it created a conditional plea which the court has no jurisdiction to accept the plea. See 80 S.Ct. 866, also 393 S.E.2d 186 State v. O Leary, State v. Truesdale 296 S.E.2d 528.
3. Counsel was ineffective when he failed to request a change of venue as I requested. This case was recieving [sic] a lot of coverage in the area media prior to trial. There was fund raising drives being conducted in the county for the victim. The right of a defendant to a change of venue depends upon the conditions at the time of trial. A defendant who seeks a change of venue based on pretrial publicity has the burden to demonstrate actual prejudice as a result of pretrial publicity. See State v. Parker 671 S.E.2d 619, State v. Avery 649 S.E.2d 102. Counsel told defendant that the jury was going to take sides with the victim, “as soon as they see the victim there was no way for a fair trial in Greenville County.” Counsel was ineffective when he failed to request a change of venue see State v. Stanks 741 S.E.2d 708. Counsel even stated “he would commit suicide if he was in my condition.
4. Counsel was ineffective when he failed to request a mental health exam or inform the court of defendants mental health history. Counsel was informed by the defendant of his mental health history, counsel did nothing about getting defendant the mental health exam, given the serious nature of the charges the defendant should have been given the exam. Counsel failed to inform the court of defendants mental health history. 44-23-410 the Judge has the duty in making the determination of capacity of persons to stand trial. Had counsel informed the court of defendant's history the outcome of the case would have been different. The court would have ordered defendant an examination which would have proved to be helpful in defense.
5. Counsel failed to conduct reasonable investigation to discover mitigating evidence. See Taylor v. State 745 S.E.2d 97 A. Counsel failed to investigate the burglary charge. Counsel was informed through documents provided by law enforcement that the victim stated to law enforcement that defendant was common law husband, and further investigation would have proved that defendant was paying rent and had not been evicted nor was there any order of protection against him. Had he done any investigate into the facts surrounding this burglary charge, he would have discovered the above mentioned facts. And acting on this knowledge the outcome of this charge would have been different.
6. Counsel failed to raise any concerns with an indictment for attempted murder that lack the elements to put defendant on notice of the charge. And counsel was further ineffective when he fail to object to defendant pleading to an defective indictment. Had counsel objected the outcome of this charge would have been different.
7. Counsel was ineffective when he fail to inform the court of the improper conduct of the Greenville County Solicitor's Office. Defendant informed the counsel that his witness had recieved [sic] a letter from the Solicitor's office requesting that they attend a meeting at the Solicitor's office. Solicitor's office did not provide defendant or counsel with the exact nature of this meeting (these witness were on defendant's witness list). After this meeting defendant's witness informed him that he should plead guilty. After this meet my witness were unwilling to testifiy [sic] on the defendants behalf. The testimony would unquestionably [sic] have aided in my trial strategy, and orther [sic] important issues, see State v. League 737 F.2d 378. This can not be deem harmless.
The Solicitor's office used these witness to influence defendant this amounted to substantial interference, where after meeting with Solicitor's office the witness support was changed see Gibson v. State 514 S.E.2d 320. The Solicitor's office with-held the information of this meeting from defendant and his counsel. Witness were intimidated and my counsel failed to inform the Court. After I had told him about the meeting it is improper for the Solicitor's office to intimidate the witness or to have a meeting with them without me or my attorney present or to inform me of the exact nature of the meeting or what was said.

(App. 41-44.) Respondent did not file a response to Petitioner's Supporting Memorandum.

         On December 16, 2014, the Honorable Eugene C. Griffith, Jr. held a hearing on Petitioner's PCR application. (App. 46-88.) Petitioner was present and represented by attorney Caroline M. Horlbeck; the State was represented by Assistant Attorney General Karen C. Ratigan. (App. 48.) The PCR court had before it the transcript of the guilty plea/sentencing hearing, the Greenville County Clerk of Court records, the Applicant's South Carolina Department of Corrections records, the PCR Application, the return, and the appellate records. (App. 90.) Petitioner, Mr. Bannister (his plea counsel), and James F. Richardson, M.D., testified as witnesses during Petitioner's PCR hearing. In an Order filed on February 10, 2015, the PCR Court denied and dismissed Petitioner's PCR application in full. (App. 90-98.) The Order of Dismissal was filed with the Greenville County Clerk of Court on March 16, 2015. (App. 90.)

         Petitioner filed a notice of appeal, and on October 12, 2015, through Attorney Lara M. Caudy of the South Carolina Commission on Indigent Defense, he filed a Johnson Petition for Writ of Certiorari, [3] presenting one issue for review:

Whether Petitioner's Sixth and Fourteenth Amendment rights to the effective assistance of counsel were violated when plea counsel failed to challenge the assistant solicitor's improper contact with two potential defense witnesses before Petitioner pled guilty?

(Dkt. No. 17-2 at 3 of 14.) Ms. Caudy also filed a petition to be relieved as counsel. (Dkt. No. 17-2 at 13 of 14.) On November 18, 2015, Petitioner filed a “Pro Se Response to Petition Filed by Counsel Johnson Petition” (“Response to Johnson Petition”) which raised seven issues related to ineffective assistance of trial counsel, and two issues alleging ineffective assistance of PCR counsel, which are set forth verbatim as follows:

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
1. Counsel failed to advice [sic] Petitioner of his right to a direct appeal, or to file a direct appeal. Petitioner never waived his right to direct appeal.
2. Counsel failed to object to the Court accepting a conditional plea to the Burglary charge and to the Attempted Murder charge.
3. Counsel failed to make a reasonable investigation.
4. Counsel failed to request a Competency Evaluation.
5. Counsel failed to seek a Charge of a Lesser Offense than Burglary.
6. Counsel failed to request a Change of Venue.
7. Counsel failed to inform the Court of improper conduct by the Solicitor's Office.
INEFFECTIVE ASSISTANCE OF PCR COUNSEL
1. Counsel failed to inform the Petitioner in a timely matter [sic] after the Court had made a decision on Petitioner's PCR Application.
2. Counsel failed to file a Motion 59(e)); motion as request[ed] by Petitioner to preserve all the issues for appellate review.

(Dkt. No. 17-3 at 4 of 16.)

         On July 18, 2016, the Supreme Court of South Carolina, after considering the counseled Johnson Petition as well as Petitioner's Response to Johnson Petition, denied the Petition for Writ of Certiorari and granted counsel's request to withdraw. (Dkt. No. 17-4.) The Remittitur was issued on August 1, 2016. (Dkt. No. 17-5.) On August 24, 2016, Petitioner filed the present Petition for habeas corpus review as well as a Motion to Stay, which asked the court to “enter an order staying the above captioned habeas corpus proceeding and holding it pending the exhaustion of state remedies that will occur.” (Dkt. No. 1; Dkt. No. 2 at 1.)

         On September 12, 2016, Petitioner, proceeding pro se, filed a second application for PCR, styled as “Application for Austin/Odom Petition” in the Court of Common Pleas for Greenville County, (2016-CP-23-05239; Dkt. No. 17-6.) In his second PCR application, Petitioner alleged:

1. Ineffective assistance of trial counsel
2. Ineffective assistance of PCR counsel

(Dkt. No. 17-6 at 3.) The State filed a Return and Motion to Dismiss the second PCR on December 7, 2016 (Dkt. No. 24-1), and the Petitioner filed an Opposition thereto on January 9, 2017. On February 3, 2017, the Chief Administrative Judge for the Thirteenth Judicial Circuit entered a Conditional Order of Dismissal which denied and dismissed the action as time barred and improperly successive under South Carolina law.[4] (Dkt. No. 24-2.)

         On March 29, 2017, the undersigned granted Petitioner's Motion to Stay for a period of ninety (90) days and ordered Petitioner to file a supplemental pleading in response to Respondent's arguments by April 19, 2017. (Dkt. No. 25.) Petitioner timely filed his supplemental Response, and the Respondent filed a Reply. (Dkt. Nos. 28, 29.) On June 29, 2017, the court extended the stay through October 27, 2017. (Dkt No. 30.) On January 3, 2018, the court received a status report from the Respondent (Dkt No. 40) which informed it that Petitioner had appealed the dismissal of his state PCR Application, and the appeal had been transferred by the South Carolina Court of Appeals to the Supreme Court of South Carolina, where it was pending.[5] On January 17, 2018, the Supreme Court of South Carolina ordered that the case be dismissed and remitted it to the Greenville County Clerk of Court.[6] Accordingly, Petitioner's pro se habeas Petition is ripe for review by the court.

         In his pro se Petition for Writ of Habeas Corpus, Petitioner makes the following claims of error:

Ground One: Ineffective Assistance of Trial Counsel See Attached Motion to Stay
Supporting Facts: Counsel failed to investigate. Counsel allowed Petitioner to make a conditional plea. Counsel failed to inform the Court of misconduct by Solicitor's office. Counsel failed to request change of venue. Counsel failed to file or inform Petitioner of his right to direct appeal. (Dkt. 1 at 6.)
Ground Two: Ineffective Assistance of P.C.R. Counsel Supporting Facts: Counsel failed to preserve issues for appeal. (Dkt. 1 at 8.)

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.