Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Green v. Beckwith

United States District Court, D. South Carolina, Rock Hill Division

December 28, 2018

Gregory Green, Petitioner,
v.
Donald Beckwith, Warden, Respondent.

          ORDER

          R. Bryan Harwell United States District Judge.

         Petitioner, Gregory Green, a state prisoner proceeding pro se, filed the current petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 13, 2017. See [ECF No. 1]. Pending before the Court is Respondent's motion for summary judgment [ECF No. 23] pursuant to Rule 56 of the Federal Rules of Civil Procedure.

         This matter is before the Court with the Report and Recommendation (R & R) of United States Magistrate Judge Paige J. Gossett.[1] [ECF No. 37]. The Magistrate Judge recommended granting the Respondent's motion for summary judgment and dismissing Petitioner's petition with prejudice. For the reasons stated below, the Court adopts the Magistrate Judge's R & R, grants Respondent's motion for summary judgment, and dismisses Petitioner's § 2254 petition with prejudice.

         Facts and Procedural History

         On November 21, 2013, Petitioner was indicted by an Horry County Grand Jury for trafficking in heroin, four to fourteen grams, second offense. On May 29, 2014, Petitioner pled guilty to trafficking in heroin, four to fourteen grams, first offense. Petitioner was sentenced to ten years in prison and a $50, 000.00 fine. Petitioner did not file a direct appeal.

         On November 17, 2014, Petitioner filed an application for post-conviction relief ("PCR") in the Horry County Court of Common Pleas. Petitioner raised the following three issues in his PCR application:

         1) Trafficking, first offense, is not a lesser included offense of trafficking, second offense;

         2) Violation of notice requirement guaranteed by U.S. and S.C. constitution and statutes;

         3) Breach of the plea agreement. [PCR Application, ECF No. 24-1 at 25].

         The PCR court denied and dismissed Petitioner's PCR application in an Order filed March 11, 2016. The PCR court found:

Applicant has not established any constitutional violations or deprivations that would require this Court to grant his application. The record shows no prejudice to the Applicant, nor does it show any action by plea counsel that would be deficient under the terms provided by Strickland. Specifically, this Court finds that Applicant's argument regarding this not being a lesser included offense is without merit. The indictment is a notice document to advise a defendant of elements of a crime and advise him of what he must defend. This Court finds that Applicant was properly notified, and that plea counsel was not required to challenge the indictment. Plea counsel was not deficient and did not perform at a level that fell below prevailing professional norms. Even if he had, there is no evidence to show prejudice to this Applicant. Additionally, Applicant has failed to show that his guilty plea was anything other than knowingly, intelligently, and voluntarily entered, and has not shown that, but for the defects he alleges in his plea, he would have proceeded to trial. Therefore, this application for post-conviction relief must be denied and dismissed with prejudice.

[Order of Dismissal, ECF No. 24-1 at 70].

         Petitioner appealed the PCR court's order by filing a petition for a writ of certiorari in the South Carolina Supreme Court on October 24, 2016. [Petitioner for Writ of Certiorari, ECF No. 24-7]. Petitioner raised only one issue in his PCR appeal: "The PCR judge erred in failing to vacate petitioner's plea to trafficking in heroin, first offense, as an alleged lesser offense per his indictment on the offense of trafficking in heroin, second offense, because trafficking in heroin, first offense, is not a lesser offense of trafficking in heroin, second offense." Id. at 3. The South Carolina Court of Appeals denied the petition for a writ of certiorari on January 9, 2018.

         Petitioner filed the instant pro se petition for writ of habeas corpus on October 13, 2017. Petitioner's raises three grounds for relief in his habeas petition. In ground one, Petitioner claims that under the elements test enunciated by the U.S. Supreme Court, SC Code Ann. § 44-53-370(e)(3)(a)(1) (heroin trafficking - first offense) is not a lesser included offense of S.C. Code Ann. § 44-53-370(e)(3)(a)(2) (heroin trafficking - second offense). In ground two, Petitioner contends he was deprived of sufficient notice of the charge to which he pled guilty in violation of the Due Process Clause of the 14th Amendment to the U.S. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.