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Rivera v. Warden of Lee Correctional Institution

United States District Court, D. South Carolina, Anderson/Greenwood Division

August 28, 2018

Kenneth Syncere Rivera, Petitioner,
v.
Warden of Lee Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Respondent's motion for summary judgment. [Doc. 13.] Petitioner is a state prisoner who seeks relief under 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 Court.

         Petitioner filed this Petition for writ of habeas corpus on February 26, 2018.[1] [Doc. 1.] On April 23, 2018, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 13; 14.] On the same day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 15.] On May 7, 2018, Petitioner's response in opposition was entered on the docket. [Doc. 17.] Respondent filed a reply on May 14, 2018. [Doc. 19.]

         Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted.

         BACKGROUND

         Petitioner is presently confined in the South Carolina Department of Corrections at Broad River Correctional Institution pursuant to orders of commitment of the Greenville County Clerk of Court.[2] [Doc. 1 at 1; Docs. 20; 21 (notices of change of address, listing address at Broad River Correctional Institution).] In July 2014, Petitioner was indicted for possession of a fiream by a person convicted of a crime of violence. [App. 59-60.[3] On March 5, 2015, represented by Dorothy A. Manigault, Petitioner waived presentment to the grand jury of additional charges-armed robbery and possession of a firearm by a person convicted of a crime of violence-and pleaded guilty to one count of armed robbery and two counts of possession of a weapon during the commission of a violent crime.[4] [App. 1-11.] He was sentenced to fifteen years imprisonment on the armed robbery charge and five years imprisonment on each possession of a weapon during the commission of a violent crime charge, the sentences to run concurrent. [App. 10.] Petitioner did not appeal.

         PCR Proceedings

         Petitioner, proceeding pro se, filed an application for post-conviction relief (“PCR”) on May 20, 2015. [App. 12-18.] The PCR application alleged Petitioner was being held in custody unlawfully based on the following ground: “My court appointed attorney was ineffective.” [App. 14.] In support of this ground, Petitioner alleged the following facts: “My attorney wasn't present at my preliminary hearing; she refuse to get all evidence on my case; and I was told if I plea two(2) charges will be dismiss.” [App. 14.] The State filed a return dated September 15, 2015. [App. 19-23.]

         A hearing was held on February 16, 2016, and Petitioner was represented at the hearing by Caroline M. Horlbeck. [App. 24-50.] On March 15, 2016, the PCR court filed an order denying and dismissing the PCR application with prejudice. [App. 52-58.] The PCR court's order addressed the following grounds:

1. Ineffective assistance of counsel.
a. Attorney was not present at preliminary hearing.
b. “She refuse to get all evidence on my case, and I was told if I plea two (2) charges will be dismiss.”

[App. 53.]

         Petitioner appealed. [Doc. 14-2.] Susan B. Hackett (“Hackett”) of the South Carolina Commission on Indigent Defense filed on Petitioner's behalf a Johnson[5] petition for writ of certiorari in the Supreme Court of South Carolina, dated September 14, 2016. [Doc. 14-3.] The petition asserted the following as the sole issue presented:

Did plea counsel provide ineffective assistance in violation of the Sixth and Fourteenth Amendments to the United States Constitution by failing to ensure Petitioner understood the terms of the plea agreement and/or ensure the plea agreement was placed on the record accurately?

[Id. at 3.] At the same time she filed the Johnson petition, Hackett submitted a petition to be relieved as counsel. [Id. at 12.] Petitioner filed a pro se response, dated October 5, 2016. [Doc. 14-4.] On February 15, 2018, the South Carolina Court of Appeals denied the petition and granted counsel's request to withdraw. [Doc. 14-5.] Remittitur was issued on March 5, 2018, and filed on March 9, 2018. [Doc. 14-6.]

         Petition for Writ of Habeas Corpus

         Petitioner filed this Petition for writ of habeas corpus on February 26, 2018. [Doc. 1.] Petitioner raises the following grounds for relief, quoted substantially verbatim, in his Petition pursuant to 28 U.S.C. § 2254:

GROUND ONE: Ineffective Assistance of Counsel
Supporting facts: Petitioner initial counsel Dorothy Manigault was ineffective due to the fact she never went over Petitioner case. Ms. Manigault never explained to Petitioner the meaning of waiving presentment of indictment and the consequences of waiving presentment. She never even mentioned to Petitioner that he was waiving presentment of two crimes he was accused of, nor did she review any evidence with him.
GROUND TWO: Violation of Plea Deal
Supporting facts: On January 26, 2015 Petitioner received a Plea offer from the solicitor of this case Mark Moyer. In the Plea Mr. Moywer wanted Petitioner to Plea to 15 years and will drop two (2) of Petitioner's charges if he accept the Plea. Petitioner accepted the Plea, however at the guilty plea hearing petitioner was found guilty of a charge that should have been dismissed, per the Plea deal.
GROUND THREE: No. Indictments for two(2) of the offenses - Arm Robbery and Possession of A fire Arm
Supporting facts: Petitioner was never indicted by the Grand Jury for Arm Robbery and Possession of a fire arm by a person convicted fo a felony. Petitioner was never told by trial counsel on the day of court that he was waiving Presentment of indictment. The two crimes he Pled guilty to was not a True-Bill. Petitioner Tral Counsel had him Plead to crimes that have yet to presented to the grand Jury.

[Doc. 1 at 4-7.] As stated, on April 23, 2018, Respondent filed a motion for summary judgment. [Doc. 13.] Petitioner's response in opposition was entered on the docket on May 7, 2018 [Doc. 17], and Respondent filed a reply on May 14, 2018 [Doc. 19]. Accordingly, the motion for summary judgment is ripe for review.

         APPLICABLE LAW

         Liberal Construction of Pro Se Petition

         Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         Summary Judgment Standard

         Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

         Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences ...


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