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McCall v. Lewis

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

August 31, 2018

TERRANCE DARNELL McCALL, Petitioner,
v.
SCOTT LEWIS, WARDEN PERRY CORRECTIONAL INSTITUTION, Respondent.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         Petitioner, Terrance Darnell McCall (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254[1] on March 15, 2018. (Doc. #1). Respondent filed a motion for summary judgment on May 17, 2018, along with a return and memorandum. (Docs. #14 and #15). Petitioner filed a response on July 16, 2018. (Docs. #21).

         PROCEDURAL HISTORY

         Petitioner responded to the motion for summary judgment and did not contest the procedural history as set forth by the Respondent. Therefore, the procedural history as set forth by the Respondent will be recited herein.

         Petitioner is currently incarcerated in the Tyger River Correctional Institution pursuant to an order of commitment from the Clerk of Court for Spartanburg County. Petitioner was indicted in May 2010 for armed robbery and possession of a firearm during commission of a violent crime, two counts of assault and battery of a high and aggravated nature (ABHAN), pointing and/or presenting firearms at person, kidnapping and possession of firearm during commission of a violent crime, and resisting arrest with a deadly weapon. Andrea Price, Esquire, represented him on these charges.

         On January 31, 2011, Petitioner pleaded guilty to armed robbery, aggravated assault and battery, assault and battery first degree, and pointing and presenting a firearm before the Honorable J. Derham Cole. All the sentences were to run concurrent. In exchange for his plea, remaining indictments for resisting arrest with a deadly weapon, kidnapping and possession of a firearm during the commission of a violent crime, counts one and two, were nolle processed. Pursuant to a negotiated sentence, the Honorable Derham J. Cole sentenced Petitioner to a period of twenty years for armed robbery, ten years each for both counts of ABHAN, and five years each for pointing and or presenting firearms at a person, and possession of weapon during commission of a violent crime.

         DIRECT APPEAL

         Petitioner filed a timely notice of intent to appeal from his convictions and sentence. The South Carolina Court of Appeals dismissed the appeal by order issued April 28, 2011, finding Petitioner failed to show how any issue was preserved for review pursuant to Rule 203(B)(IV), SCACR.

         PCR

         Petitioner filed an application for post-conviction relief (PCR) on December 12, 2011, raising the following grounds:

         1. Ineffective assistance of counsel.

(a). Counsel failed to investigate the case;
(b). Counsel failed to challenge th initial traffic stop;
(c). Counsel failed to challenge the gun listed on the warrant;
(d). Counsel “did nothing to defend me”; and
(e). Counsel said “the courtroom was full of sheriff's from the Sheriff Department and they [were] out for blood...but when we went in the courtroom less than 3 minutes late there [were] only 4 policemen in the courtroom. She lied to put fear in my heart and it work[ed].”
2. Insufficient evidence, in that:
(a). “This was not armed robbery, ”
(b). “This sheriff lied about why he stop us/racism desecration [sic].”
3. “Conflict of interest (honorable judge)”
4. “Statements from co-defendants is [sic] void.”

(Doc. #15-7, PCR petition, App. 43-53 of 186).

         The Honorable Roger L. Couch held an evidentiary hearing into the matter on January 22, 2014. Petitioner was present at the hearing and represented by Leah B. Moody, Esquire, and Respondent was represented by Suzanne H. White of the South Carolina Office of the Attorney General. Petitioner testified on his own behalf at the hearing. The State presented testimony from plea counsel, Andrea L. Price. By order dated December 11, 2013, Judge Couch denied relief and dismissed the Application with prejudice.

         PCR APPEAL

         Petitioner timely served and filed a notice of appeal. Tiffany L. Butler, Esquire, of the Office of Appellate Defense, represented Petitioner in collateral appellate proceedings. Counsel filed a Johnson Petition for Writ of Certiorari on Petitioner's behalf raising the following issue:

Did the PCR judge err by finding counsel provided effective representation where counsel told Petitioner that kidnapping carried a penalty of life imprisonment and if Petitioner accepted the State's plea offer of a negotiated twenty-year sentence, with dismissal of the kidnapping charge, he would be eligible for parole after serving sixteen years of his sentence, since Petitioner discovered, after pleading guilty, that kidnapping carried a penalty of thirty years' imprisonment and he would not be eligible for parole until serving eighty-five percent of his sentence, which prejudiced Petitioner?

         The South Carolina Supreme Court denied Appellate Counsel's request to be relieved as counsel under Johnson and directed the parties to address the following question:

Was plea counsel ineffective in advising petitioner regarding the minimum amount of time he would be required to serve ...

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