United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
Terrance Darnell McCall (Petitioner), appearing pro
se, filed his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 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.
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.
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.
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
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.
filed an application for post-conviction relief (PCR) on
December 12, 2011, raising the following grounds:
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
(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
3. “Conflict of interest (honorable judge)”
4. “Statements from co-defendants is [sic] void.”
(Doc. #15-7, PCR petition, App. 43-53 of 186).
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.
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
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?
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