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Carruthers v. Warden of Lee Correctional Institution

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

July 22, 2019

Alan Bruce Carruthers, Petitioner,
Warden of Lee Correctional Institution, Respondent.


          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.


         The 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).

         Underlying Case Facts

         The 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).

         Direct Appeal

         The 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 Boykin.[1]

(Doc. 18-2 at 4).

         The 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).


         The 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 plea.
3. Prosecutorial misconduct:
Knowingly accepted plea Applicant had insisted his innocence to.
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).

         The 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 family.
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 enforcement).
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.

(App. 131-38).

         By order executed September 18, 2015, Judge Dickson denied and dismissed each of the following PCR allegations with prejudice:

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 ...

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