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Watts v. Warden Broad River Correctional Institution

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

March 27, 2018

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

          ORDER

          Honorable Bruce H. Hendricks, United States District Judge.

         This 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 summary judgment.

         BACKGROUND

         The Greenville County Grand Jury indicted Petitioner in September of 2012 for attempted murder (count one) and burglary in the first degree (count two).[1] 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.

         Petitioner 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 for rehearing.

         On 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 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. at 27, 32-33.)

         The 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 in full.

         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, 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.)

         On July 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.

         On 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 relief:

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. Counsel
Supporting Facts: Counsel failed to preserve issues for appeal.

(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.

         In the 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 ...


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