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 Lee Correctional
Institution in the South Carolina Department of Corrections
(“SCDC”) (doc. 37 at 1). He was indicted by the
Lexington County Grand Jury in October 2006 for criminal
sexual conduct (“CSC”) with a minor, first degree
(2006-GS-32-3422) (app. 204-05). He was represented by Ralph
S. Kennedy. On February 28, 2008, the petitioner pled guilty
as charged before the Honorable G. Thomas Cooper, Jr. Judge
Cooper sentenced the petitioner to 30 years of imprisonment
with credit for time served, with a direction that the time
run concurrent to his federal charges. The court also ordered
the petitioner to undergo sex abuse and pedophilia counseling
during incarceration (app. 33-34).
Solicitor proffered the following facts in support of the
petitioner's guilty plea to the charged offense. The
petitioner groomed a seven-year-old female neighbor over a
period of time, luring her into an “abandoned building
. . . that was like a little house . . . back behind where
the [petitioner] and the victim live, and no one lived
there” (app. 14). The petitioner had the victim pose
for explicit photographs as well as subjecting her to
multiple sexual batteries. The child did not disclose the
offense until about a month later. The petitioner denied
penetration, but he admitted to sexual battery. At the guilty
plea, the Solicitor presented approximately 17 photographs
taken of the victim by the defendant, which Judge Cooper made
a court's exhibit (app. 4-34).
petitioner timely filed notice of appeal of his conviction
and sentence. The Office of Indigent Defense, Division of
Appellate Defense, appointed M. Celia Robinson as the
petitioner's appellate counsel. Counsel briefed the
following issue on direct appeal:
The circuit court judge erred in accepting appellant's
guilty plea without first ordering that appellant be
evaluated in order to determine that he was mentally
competent to enter a knowing and voluntary guilty plea;
without his first being evaluated and found competent to
enter a guilty plea, appellant's guilty plea could not
comply with the requirements of
(Doc. 18-2 at 4).
State filed a brief in response challenging issue
preservation and additionally arguing the appellate issue
lacked merit (doc. 18-3). The South Carolina Court of Appeals
affirmed the petitioner's conviction and sentence in an
unpublished opinion filed June 8, 2010. State v.
Carruthers, No. 2010-UP-301 (S.C. Ct. App. filed June.
8, 2010) (doc. 18-4). That court issued the remittitur on
June 24, 2010 (doc. 18-5).
petitioner filed a pro se application for
post-conviction relief (“PCR”) (2011-CP-32-0910)
on March 7, 2011 (app. 36-42), in which he alleged the
following grounds for relief:
1. Ineffective assistance of appointed counsel:
Misled Applicant as to conditions of plea.
2. Fraud Upon the Court:
Misrepresented evidence to verify warranting acceptance of
3. Prosecutorial misconduct:
Knowingly accepted plea Applicant had insisted his innocence
4. Credit for Time Served:
County Jail Time not Credited Toward Sentencing.
(App. 38). The State made a return to the application, which
was served on December 16, 2011 (app. 43-49).
Honorable Edgar W. Dickson held an evidentiary hearing into
the matter on August 14, 2013. The petitioner was present at
the hearing and was represented by Catherine Johnson.
Assistant Attorney General J. Walt Whitmire represented the
State. The petitioner testified on his own behalf at the
hearing, while the State presented testimony from plea
counsel (app. 50-130). On the date of the evidentiary
hearing, the petitioner's counsel filed an amended PCR
application, citing the following allegations:
1. Ineffective Assistance of Counsel
a. Counsel failed to investigate, find or advise client of
search warrant defects and warrantless search or challenge
evidence obtained by same.
b. Counsel failed to move for a speedy trial.
c. Counsel did not explain that client was indicted on only
three of five charges.
d. Counsel wrongfully induced plea by promising client that
he could serve his sentence in federal custody closer to his
e. Counsel did not represent client's interest at the
discovery review or at the plea by bolstering the State's
case Supporting Facts: The police search which found
“voluminous” inculpatory evidence was conducted
without a search warrant as the search warrant was issued a
day after the search took place; the search also exceeded the
scope of the warrant issued post-search; Counsel did not
advise applicant of challengeability of evidence because he
stated on multiple occasions there was no defense and after
viewing the discovery with counsel, the applicant acquiesced
to plea to a charge he maintained his innocence to, applicant
waited four years in pretrial detention without his attorney
moving for a speedy trial, such time contributed to the
coercive nature of the plea, counsel induced applicant to
plead by promising him multiple times in writing he would be
in a federal institution closer to his family, a plea bargain
he did not put on the record before the Court; Counsel also
failed to conduct attorney-client meeting outside the
presence of law enforcement (to prevent further inculpatory
statements by the Applicant that were recorded by law
2. Credit for time-served in county Supporting Facts: County
jail time not credited toward sentencing.
3. Prosecutorial misconduct and fraud upon the Court
Supporting Facts: The prosecutor misrepresented evidence and
its propriety to verify acceptance of the plea; Prosecutor
knowingly accepted plea applicant had insisted innocence to.
order executed September 18, 2015, Judge Dickson denied and
dismissed each of the following PCR allegations with
Ineffective assistance of counsel:
(a) failure to investigate victim's credibility and
account of the offense;
(b) failure to investigate the evidentiary value of the
photograph found ...