United States District Court, D. South Carolina
David I. Smith, Petitioner,
Warden, Lee Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
J. Gossett United States Magistrate Judge
David I. Smith, a self-represented state prisoner, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. This matter is before the court pursuant to 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)
(D.S.C.) for a Report and Recommendation on Respondent's
motion for summary judgment. (ECF No. 22.) Pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
the court advised Petitioner of the summary judgment and
dismissal procedures and the possible consequences if he
failed to respond adequately to Respondent's motion. (ECF
No. 24.) Petitioner filed a response in opposition (ECF No.
26), and Respondent replied (ECF No. 27).Having carefully
considered the parties' submissions and the record in
this case, the court finds that Respondent's motion
should be granted and the Petition denied.
was indicted in May 2012 in Charleston County for attempted
murder (2012-GS-10-2533). (App. at 15-16, ECF No. 21-1 at
17-18.) Petitioner was represented by Luke Malloy, Deputy
Public Defender. (App. at 1, ECF No. 21-1 at 3.) On July 10,
2014, Petitioner pled guilty to assault and battery of a high
and aggravated nature (“ABHAN”) before the
Honorable Roger M. Young, Sr., Circuit Court Judge. (App. at
1-12, ECF No. 21-1 at 3-14.) The court sentenced Petitioner
to twenty years' incarceration with credit for time
served. (App. at 12, ECF No. 21-1 at 14.)
18, 2014, plea counsel filed a motion to reconsider
Petitioner's sentence. (App. at 18, ECF No. 21-1 at 20.)
On November 17, 2014, the court held a hearing on the motion
to reconsider, but reaffirmed the original sentence of twenty
years. (App. at 19-28, ECF No. 21-1 at 21-30.) Petitioner did
March 31, 2015, Petitioner filed a pro se application for
post-conviction relief (“PCR”). (Smith v.
State, 2015-CP-10-1855, App. at 33-39, ECF No. 21-1 at
35-40.) In his PCR application, Petitioner alleged the
10. State concisely the grounds on which you base your
allegation that you are being held in custody unlawfully:
(a) Misadvice in guilty plea, not indicted within timely
(b) Ineffective assistance of counsel
(c) Forgery of indictment
11. State concisely and in the same order the facts which
support each of the grounds set out in (10):
(a) Counsel was not prepared for this case
(b) Counsel misadvised me to accept a plea offer
(c) Counsel was not on case long enough to prepare a defense
(App. at 36, ECF No. 21-1 at 38.) The State filed a return.
(App. at 41-45, ECF No. 21-1 at 43-47.) On August 1, 2016,
the PCR court held an evidentiary hearing at which Petitioner
appeared and testified. (App. at 47-75, ECF No. 21-1 at
49-77.) Petitioner was represented by Christopher L. Murphy,
Esquire. (App. at 47, ECF No. 21-1 at 49.) At the conclusion
of the hearing, the PCR court asked PCR counsel to clarify
what grounds were being raised by his client, and PCR counsel
responded as follows:
It's two-fold. Number one, he's saying that he was
coerced into doing the plea; that had he known the
ramifications and the possible sentence, he would have not
have gone forward with the plea. His testimony is he wanted a
trial the whole time and he was coerced or convinced into
pleading guilty, Your Honor.
Second point would be that he would-he wanted to file an
appeal. And we would ask for, if he's denied on his PCR
application, that he will be able to file a belated appeal on
(App. at 73, ECF No. 21-1 at 75.) The PCR court took the
matter under advisement. (App. at 74, ECF No. 21-1 at 76.) In
an order filed August 4, 2016, the PCR court denied and
dismissed with prejudice the PCR application. (App. 76-80,
ECF No. 21-1 at 78-82.) Petitioner appealed. On September 15,
2017, Kathrine H. Hudgins, Appellate Defender with the South
Carolina Commission on Indigent Defense, Division of
Appellate Defense, filed a Johnson petition for writ of
certiorari on Petitioner's behalf. (Smith v.
State, App. No. 2016-001823, ECF No. 21-2.) The
following issue was presented in the Johnson petition:
Did the PCR judge err in finding that Petitioner was not
entitled to a belated direct appeal, pursuant to White v.
State, from his plea of guilty to assault and battery of
a high and aggravated nature when Petitioner received the
maximum sentence and filed a motion to reconsider sentence
which was denied?
(ECF No. 21-2 at 3.) Thereafter, Petitioner filed a pro se
response to the Johnson petition raising the following
1. Was Plea Counsel ineffective assistance for strongly
suggesting that the Defendant plea to the charge of Assault
and Battery of a high and aggravated nature, instead of
challenging the indictment of Attempted Murder in regard to
the necessary elements of Malice Aforethought and Specific
Intent to Kill?
2. Did the Plea Judge abuse his discretion in sentencing the
Defendant to the maximum twenty year sentence following a
guilty plea to the lesser included offense of Assault and
Battery of a high and aggravated nature, where the victims
injuries were classified not serious and non life threatening
which would have required a sentence if any at all to be
pursuant to SECTION 16-3-600. Subsection (C)(1) not to exceed
3. Was Plea Counsel ineffective assistance for failing to
inform Defendant of his right to a direct appeal from a
guilty plea pursuant to Weathers v. State, 319 S.C.
59, 459 S.E.2d 838 (1995) after receiving the maximum twenty
4. Did the PCR Judge err in finding that Petitioner was not
entitled to a belated direct appeal, pursuant to White v.
State, from his guilty plea to Assault and Battery of a
high and aggravated nature when Petitioner received the
maximum twenty year sentence, and Petitioner motion to
reconsider sentence was denied?
(ECF No. 21-3 at 4.) On April 23, 2018, the Supreme Court of
South Carolina denied the petition and granted PCR appellate
counsel's request to withdraw. (ECF No. 21-4.) The
remittitur was issued on May 9, 2018, and was filed in the
Charleston County Court on May 11, 2018. (ECF No. 21-5 at
Petition for a writ of habeas corpus raises the following
issues, quoted verbatim:
Petitioner had three lawyers that knew Petitioner
planned & prepared to go to trial approximately
three years in county jail. Malloy admits the
acknowledgment of Petitioners desire for trial
multiple times, minutes before an unwanted plea
hearing, which counsel forced. By bringing in a
second attorney Penington. To validate counsel
Malloy's erroneous advise of 40 years (10 CDV and
30 Att. Murder) and threats of a sure conviction.
Counsel Malloy compelled Petition into an involuntary
Counsel was ineffective due to his failure to appeal
max sentencing, after a plea bargain.
Counsel Malloy knew that Att. Murder would not been a
foregone conclusion, so because of his belief he
strongly advised Petition to plea to ABHAN. However
the genuine issue that the Medical Report raises in
regard to the nature of the assault/domestic charge
contradicts. Malloy's clearly knew that the
injuries were most consistent with subsection
16-3-300 1(c) of assault & battery, thus appeal.
Counsel admits that he did have “letters”
(Petitioner wrote) in files. These letters, DNA swab
test results, and pictures of scene were not given to
Petitioner. No. phone calls were subpena nor was
letters challenged at plea hearing. The allagations
of threats implicated Petitioner's chraracter as
a threat, thus wieghed in judges discretion. Had
Petitioner have above mentioned, Petitioner
would've utilized them as an option to trial vs
Counsel refuse to fight/challenge and refuse to
remove himself when Petitioner communicated.
Petitioner told Malloy that he wanted new counsel and
requested that he be allowed to communicate with his
family, before entering into plea. Counsel denied
Petitioner, saying that he did not see them.
Counsel was uncommunicative, did not spend adequate
time on case, had prepared no trial strategy and
refused to remove himself. Petitioner had not needed
to change counsel till Malloy, 2 months before plea.
(Pet., ECF No. 1 at 5, 6, 8, 9, 11) (errors in original and
internal citations omitted).
Summary Judgment Standard
judgment is appropriate only if the moving party “shows
that there is no genuine dispute as to any material fact and
the [moving party] is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A party may support or refute
that a material fact is not disputed by “citing to
particular parts of materials in the record” or by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of
summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
deciding whether there is a genuine issue of material fact,
the evidence of the non-moving party is to be believed and
all justifiable inferences must be drawn in favor of the
non-moving party. SeeAnderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). However, “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry ...