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Smith v. Warden

United States District Court, D. South Carolina

February 8, 2019

David I. Smith, Petitioner,
v.
Warden, Lee Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          Paige J. Gossett United States Magistrate Judge

         Petitioner 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).[1]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.

         BACKGROUND

         Petitioner 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.)

         On July 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 not appeal.

         On 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 following issues:

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 manner
(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 the matter.

(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.[2] (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 issues:

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 ten years?
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 year sentence?
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 1-2.)

         FEDERAL HABEAS ISSUES

         The Petition for a writ of habeas corpus raises the following issues, quoted verbatim:

Ground One:

Coersion/Duress

Supporting Facts:

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 plea.

Ground Two:

Counsel was ineffective due to his failure to appeal max sentencing, after a plea bargain.

Supporting Facts:

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.

Ground Three:

Brady Violation

Supporting Facts:

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 plead involuntarly.

Ground Four:

Counsel refuse to fight/challenge and refuse to remove himself when Petitioner communicated.

Supporting Facts:

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).[3]

         DISCUSSION

         A. Summary Judgment Standard

         Summary 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).

         In 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 ...


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