United States District Court, D. South Carolina, Charleston Division
Honorable Bruce H. Hendricks, United States District Judge.
matter is before the Court upon Petitioner Harold Watts'
(“Petitioner” or “Watts”) petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. 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 January 31, 2018, Magistrate Judge Mary Gordon
Baker filed a Report and Recommendation
(“Report”), outlining the issues and recommending
that the Court grant Respondent's motion for summary
judgment. Petitioner and Respondent each filed objections to
the Report, and the matter is ripe for review. For the
reasons set forth herein, the Court adopts the Magistrate
Judge's Report and grants Respondent's motion for
Greenville County Grand Jury indicted Petitioner in September
of 2012 for attempted murder (count one) and burglary in the
first degree (count two). Attorney James W. Bannister represented
Petitioner, and Assistant Solicitor Allen Fretwell
represented the State. On April 8, 2013, after a jury had
been selected for Petitioner's trial, Petitioner changed
his plea and pleaded guilty to attempted murder and burglary
in the first degree (counts one and two) before the Honorable
Letitia Verdin. In exchange for Petitioner's guilty plea,
the States agreed to withdraw its notice that it would seek a
sentence of life without the possibility of parole
(“LWOP”) pursuant to South Carolina's
recidivist statute if Petitioner were convicted at trial.
Judge Verdin accepted Petitioner's guilty plea and
sentenced him to 35 years for burglary in the first degree
and 30 years for attempted murder, to run concurrently.
filed a pro se notice of intent to appeal in the South
Carolina Court of Appeals but did not properly serve the
notice on opposing counsel, so on July 1, 2013, the South
Carolina Court of Appeals dismissed the appeal pursuant to
Rule 221(b) of the South Carolina Appellate Court Rules
because it was not properly served on opposing counsel. On
August 16, 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
February 28, 2014, Petitioner timely filed an application for
post-conviction relief (“PCR”) alleging the
following grounds, taken verbatim from his application:
(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
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
(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
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
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
9. Counsel was ineffective when he failed to request a change
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. at 27, 32-33.)
State filed its return on August 22, 2014. Petitioner also
submitted a memorandum in support of his application
elaborating on the issues presented. (See App. at
41-44; ECF No. 41 at 5-6.) On December 16, 2014, the
Honorable Eugene C. Griffith, Jr. held a hearing. Petitioner
appeared and was represented by attorney Caroline M.
Horlbeck. 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
State's return, and the appellate records. Petitioner,
his plea counsel (Mr. Bannister), and James F. Richardson,
M.D., all testified as witnesses during Petitioner's
hearing. In an order filed on February 10, 2015, the PCR
court denied and dismissed Petitioner's PCR application
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, 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?” (ECF No. 17-2
at 3.) Ms. Caudy also filed a petition to be relieved as
counsel. On November 18, 2015, Petitioner filed a “pro
se response to petition filed by counsel Johnson
petition” raising seven issues related to ineffective
assistance of trial counsel and two issues alleging
ineffective assistance of PCR counsel. (See ECF No.
17-3 at 4; ECF No. 41 at 7-8.)
18, 2016, the Supreme Court of South Carolina, after
considering the Johnson petition and
Petitioner's pro se response, denied the petition for
writ of certiorari and granted counsel's petition to be
relieved. The Remittitur was issued on August 1, 2016.
August 24, 2016, Petitioner filed the instant § 2254
petition as well as a motion to stay, asking the Court to
“enter an order staying the above captioned habeas
corpus proceeding an holding it pending the exhaustion of
state remedies that will occur.” (ECF Nos. 1 and 2.) In
his petition, Petitioner raises the following grounds for
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.
Ground Two: Ineffective Assistance of P.C.R.
Supporting Facts: Counsel failed to preserve issues for
(ECF No. 1 at 6, 8.) On December 5, 2016, Respondent filed a
motion for summary judgment to which Petitioner responded on
December 27, 2016.
meantime, on September 12, 2016, Petitioner, proceeding pro
se, filed a second PCR application in the Court of Common
Pleas for Greenville County. In this petition, Petitioner
alleged ineffective assistance of trial counsel and
ineffective assistance of PCR counsel. (ECF No. 17-6 at 3.)
The State filed a return and motion to dismiss, and
Petitioner filed a response in opposition on January 9, 2017.
On February 3, 2017, the Chief Administrative Judge for the
Thirteenth Judicial Circuit ...