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Monroe v. Louis

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

January 7, 2019

Joshua Andrew Monroe, Petitioner,
v.
Warden Louis, Respondent.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE

         The 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 Court.

         BACKGROUND

         The 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).

         Judge 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).

         On 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. 16-2).

         Direct Appeal

         The 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).

         PCR

         On 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.

(App. 82-101).

         The 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 additional claim:

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 Applicant.

(App. 103-04).

         An 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. 111-13).

         By 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. 157-66).

         PCR Appeal and Belated Direct Appeal

         On 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 ...

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