United States District Court, D. South Carolina, Rock Hill Division
Bryan Harwell United States District Judge.
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.
matter is before the Court with the Report and Recommendation
(R & R) of United States Magistrate Judge Paige J.
Gossett. [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.
and Procedural History
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
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:
Trafficking, first offense, is not a lesser included offense
of trafficking, second offense;
Violation of notice requirement guaranteed by U.S. and S.C.
constitution and statutes;
Breach of the plea agreement. [PCR Application, ECF No. 24-1
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
[Order of Dismissal, ECF No. 24-1 at 70].
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.
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. ...