United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. MCDONALD UNITED STATES MAGISTRATE JUDGE
petitioner, a state prisoner proceeding pro se,
seeks habeas corpus relief pursuant to 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
petitioner is currently incarcerated at Perry Correctional
Institution in the South Carolina Department of Corrections
(“SCDC”) (doc. 1 at 1). He was indicted by the
Charleston County Grand Jury in October 2008 for three counts
of kidnaping (2008-GS-10-8111, -8123, -8145), two counts of
armed robbery (2008-GS-10-8120, -8149), attempted armed
robbery (2008-GS-10-8109), and criminal sexual conduct
(“CSC”) first degree (2008-GS-10-8143) (app.
167-80) The petitioner was represented on the charges by
Milton Stratos. Ninth Circuit Assistant Solicitor Burns
Malone Wetmore prosecuted the case (app. 28). On November 18,
2010, the petitioner appeared before the Honorable J. C.
Nicholson, Jr., and entered a plea of guilty to one of the
armed robbery indictments, two of the kidnaping indictments,
and the attempted armed robbery indictment. With the
State's agreement, he entered a plea pursuant to
North Carolina v. Alford, 400 U.S. 25 (1970) to the
remaining kidnaping and armed robbery indictments and to the
CSC indictment. The petitioner stated he believed a jury
would likely convict him on the facts presented if he
proceeded to trial, but he did not admit his guilt for the
charges (app. 19-25).
Nicholson found a factual basis for the mixed guilty and
Alford plea and found the pleas were entered in a
free, voluntary, and knowing manner. Judge Nicholson accepted
the plea to each charge as described, and sentencing was
deferred upon suggestion of the parties (app. 19, 25-26).
February 3, 2011, the petitioner appeared before the
Honorable Roger M. Young, Sr., in Charleston County, along
with two co-defendants (app. 28). At the conclusion of this
hearing, Judge Young sentenced the petitioner to 20 years for
attempted armed robbery and 25 years on each remaining charge
(app. 31-80) with the sentences to run concurrently (doc.
petitioner's counsel filed a timely notice of appeal, but
the appeal was dismissed on September 18, 2012, for failure
to serve opposing counsel pursuant to South Carolina
Appellate Court Rule 203. The remittitur was issued on
October 11, 2012 (docs. 16-3, 16-4, 16-5).
September 17, 2013, the petitioner filed an application for
post-conviction relief (“PCR”) (2013-CP-23-05445)
(app. 82-88), raising the following claims (verbatim):
a) Counsel was ineffective for railing [sic] to properly file
the applicant' [sic] appeal, which is a denial of due
process of law.
b) Counsel was ineffective for advising the applicant to
plead guilty to criminal sexual conduct in the first degree
and failing to move to quash the indictment for that charge
in light of the applicant's denial and the state's
lack of evidence, which rendered the applicant's plea of
guilty not intelligently and voluntarily made, and denied the
applicant due process of law.
c) Counsel was ineffective for failing to move for dismissal
of the armed robbery charges against the applicant because of
the variance between the allegations in the indictments and
the factual basis for the plea, which rendered the applicant
pleas of guilty not knowingly and intelligently made, and was
a denial of due process of law.
State made a return to the PCR application by and through the
Attorney General's Office (app. 105-109). Thereafter,
James K. Falk, the petitioner's appointed PCR counsel,
filed an amended application for PCR that reincorporated the
pro se allegations and raised the following
Former trial counsel Michael DuPree, Esq. [redacted address
of attorney], provided ineffective assistance of counsel by
advising Applicant to make incriminating proffer statement to
the Ninth Circuit Solicitor's Office, without first: (a)
Adequately investigating and analyzing the strength of the
evidence against Applicant, and; (b) Advising Applicant of
weaknesses in the State's case and evidence against
evidentiary hearing was held on September 10, 2015, before
the Honorable Larry B. Hyman. Assistant Attorney General J.
Rutledge Johnson appeared on behalf of the State. The
petitioner was represented at the hearing by Mr. Falk. The
petitioner, plea counsel Milton Stratos, and his initial
counsel Michael DuPree each testified at the hearing (app.
order filed November 23, 2015, Judge Hyman denied and
dismissed the application with prejudice and granted
the petitioner pursuit of a belated direct appeal pursuant to
White v. State, 208 S.E.2d 35 (S.C. 1974) (app.
Appeal and Belated Direct Appeal
November 30, 2015, a timely notice of PCR appeal was received
by the South Carolina Supreme Court on the petitioner's
behalf (doc. 16-6). The petitioner was represented by Tiffany
Butler with the South Carolina Commission on Indigent
Defense, who on July 5, 2016, filed a petition for writ of
certiorari raising the following issues:
I. Did the PCR court correctly rule that the Petitioner did
not waive his right to a direct appeal and was entitled to
belated review of direct appeal issues pursuant to White
v. State, 263 S.C. 110, 108 S.E.2d 35 (1974), where
Petitioner asked plea counsel to file a notice of appeal,
plea counsel actually filed a notice of appeal, but the
appeal was dismissed because counsel failed to properly serve
the notice of appeal on the State?
II. Did the PCR court err by finding counsel provided
effective representation where counsel advised Petitioner to
give a proffer statement to the State admitting his guilt
before reviewing all of the State's evidence and
Petitioner subsequently hired new counsel to represent him at
trial, since Petitioner only pled guilty because the State
would have used the proffer statement against ...