United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
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.
filed this Petition for writ of habeas corpus on February 26,
2018. [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.]
carefully considered the parties' submissions and the
record in this case, the Court recommends Respondent's
motion for summary judgment be granted.
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. [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. 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. [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.
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.]
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
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.”
appealed. [Doc. 14-2.] Susan B. Hackett
(“Hackett”) of the South Carolina Commission on
Indigent Defense filed on Petitioner's behalf a
Johnson 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
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.]
for Writ of Habeas Corpus
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
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.
Construction of Pro Se Petition
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).
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.
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