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Thompson v. Davis

United States District Court, D. South Carolina, Anderson/Greenwood Division

April 30, 2019

Terrill Thompson, Petitioner,
v.
Mr. W. Davis, Warden, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin United States Magistrate Judge

         This matter is before the Court on Respondent's motion for summary judgment. [Doc. 12.] Petitioner is a state prisoner who seeks relief under 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.

         Petitioner, proceeding pro se, filed this Petition for writ of habeas corpus on December 11, 2018.[1] [Doc. 1.] On February 4, 2019, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 11; 12.] The next day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 13.] The Court filed a second Roseboro Order on February 22, 2019, after receiving a notice of change of address from Petitioner. [Docs. 15; 17.] On March 4, 2019, Petitioner's response in opposition was entered on the docket. [Doc. 19.]

         Having carefully considered the parties' submissions and the record in this case, the Court recommends the Petition be dismissed as time barred.

         BACKGROUND

         Petitioner is confined in the South Carolina Department of Corrections at Broad River Correctional Institution pursuant to orders of commitment of the Chester County Clerk of Court.[2] [Docs. 1 at 1; 15 (notice of change of address to Broad River Correctional Institution).] In November 2008, Petitioner was indicted for burglary first degree and strong armed robbery. [Doc. 11-20.] On October 12, 2010, represented by Leah Moody, Petitioner pled guilty to both charges. [Doc. 11-1.] He was sentenced to concurrent terms of fifteen years' imprisonment on the burglary first degree charge and fifteen years' imprisonment on the robbery charge. [Id. at 28-29.] No direct appeal was filed.

         PCR Proceedings

         First PCR Application

         Petitioner, proceeding pro se, filed an application for post-conviction relief (“PCR”) on February 16, 2011. [Doc. 11-2.] The PCR application alleged Petitioner was being held in custody unlawfully based on the following grounds, quoted substantially verbatim:

Ground One: Lack of knowledge of plea. The prosecution failed to inform Defendant and his counsel that the victim claimed that she was choked by the Defendant and slammed on the floor. She went to the hospital but the prosecution kept the hospital records. A plea cannot be considered knowing and voluntary if a Defendant “lacks knowledge of material evidence in the prosecution's possession.” Gibson v. State, 514 S.E.2d 320, 324 (S.C. 1999); see also S.C. R. Crim. P. 5.
Ground Two: Leah B. Moody failed to get medical records of the victim, which constitutes ineffective assistance of counsel.
Ground Three: Leah B. Moody never gave me an understanding of what I was pleading to.
Ground Four: I requested a jury trial but Ms. Moody refused to do so.
Ground Five: Leah B. Moody never investigated my charges.
Ground Six: My plea was involuntary.

[Id. at 3.] The State filed a return, dated July 6, 2011. [Doc. 11-3.]

         A hearing was held on July 30, 2012, and Petitioner was represented at the hearing by Nicole L. Singletary. [See Doc. 11-4 at 1.] At the hearing, Petitioner and Singletary informed the court that Petitioner wished to withdraw his PCR application with prejudice. [See id.] On October 1, 2012, the PCR court filed an order finding the withdrawal to be knowing, intelligent, and voluntary, and dismissing the PCR application with prejudice. [Id. at 2.] Petitioner did not appeal.

         Second PCR Application

         Petitioner, proceeding pro se, filed a second PCR application on August 11, 2014. [Doc. 11-5.] The PCR application alleged Petitioner was being held in custody unlawfully based on the following ground, quoted substantially verbatim:

The circuit court didn't have subject matter jurisdiction because the Defendant Eligha Terrill Thompson alleges that failure to conduct a preliminary hearing, properly demanded, deprives the Court of General Sessions of jurisdiction to indict or try the Defendant. Also the Defendant Eligha Terrill Thompson claims that the reason why he didn't raise this ground in his first PCR was because Defendant didn't have law knowledge of a preliminary hearing at that time when he filed his first PCR. Also Defendant discovered as he was researching the law that his indictments were illegal due to the fact that they failed to have a preliminary hearing. Also the Defendant claims that he didn't go to law school, therefore he didn't have full knowledge of the law when he filed his first PCR. It is common knowledge to the profession that often persons charged with a crime and denied a preliminary hearing were deprived of the right to know the exact nature of the charge against them, and this denied them the opportunity to fully prepare for their defense.

[Id. at 6.] The State filed a return and motion to dismiss, dated November 21, 2014. [Doc. 11-6.] In the motion to dismiss, the State argued that Petitioner's second PCR application should be summarily dismissed as untimely and successive. [Id.]

         On December 3, 2014, the PCR court filed a conditional order of dismissal. [Doc. 11-7.] In the conditional order, the court expressed its intent to summarily dismiss the matter as successive and untimely but granted Petitioner twenty days to show why the order should not become final. [Id.] Petitioner responded to the conditional order on December 8, 2014. [Doc. 11-8.] However, on November 4, 2015, the PCR court filed a final order, denying and dismissing with prejudice the application for the reasons set forth in the conditional order of dismissal. [Doc. 11-9.] Petitioner did not appeal.

         Third PCR Application

         Petitioner, proceeding pro se, filed a third PCR application on June 25, 2015. [Doc. 11-10.] The PCR application alleged Petitioner was being held in custody unlawfully based on newly discovered evidence. [Id. at 4-5.] Petitioner alleged that he wrote to the South Carolina Court Administration, requesting the Chester County General Sessions Court's calendar from the November 2008 term. [Id.] He asserted that he received a calendar in response that revealed there was no General Sessions Court in Chester on November 11, 2008, because that was Veterans Day, a federal holiday. [Id.] Accordingly, Petitioner contended that both of his indictments were illegal and that if he had known they were illegal, he would not have pleaded guilty. [Id.] Finally, Petitioner alleged that his trial counsel was ineffective because she knew that his indictments were illegal. [Id.] The State filed a return and motion to dismiss, dated February 9, 2016. [Doc. 11-11.] The State also filed a motion to restrict future filings. [Doc. 11-12.]

         On February 22, 2016, the PCR court filed a conditional order of dismissal and an order restricting future filings. [Docs. 11-13; 11-14.] On September 9, 2018, the PCR court filed a final order, denying and dismissing with prejudice the application. [Doc. 11-15.]

         Fourth PCR Application

         Petitioner, proceeding pro se, filed a fourth PCR application on September 20, 2018. [Doc. 11-16.] The PCR application alleged Petitioner was being held in custody unlawfully because he was held before a court with fraudulent indictments because the date on the indictments was the Veterans Day holiday and that subject matter jurisdiction may be raised at any time.[3] [Id. at 3-4.] The State filed a return and motion to dismiss, dated December 10, 2018. [Doc. 11-18.]

         On December 18, 2018, the PCR court filed an order dismissing the application with prejudice and finding the Fourth PCR application ?was filed in blatant disregard to the Court's previous order restricting such filings.” [Doc. 11-19.]

         Petition for Writ of Habeas Corpus

         Petitioner filed this Petition for writ of habeas corpus on December 11, 2018. [Doc. 1.] Petitioner raises the following ground for relief, quoted substantially verbatim, in his Petition pursuant to 28 U.S.C. § 2254:

         GROUND ONE: False Imprisonment

Supporting facts: On the first degree burglary and strong arm robbery arrest warrants do not have a judge signature on them which the affidavits have a judge signature but the arrest warrants don't which violates the Federal 14th ...

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