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Ham v. Williams

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

July 23, 2019

Angelo Ham, Petitioner,
v.
Warden Williams, Respondent.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. McDONALD, UNITED STATES MAGISTRATE JUDGE

         The petitioner, a state prisoner proceeding pro se and in forma pauperis, 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.

         BACKGROUND

         The petitioner is currently incarcerated at McCormick Correctional Institution in the custody of the South Carolina Department of Corrections (“SCDC”) (doc. 1 at 1). The petitioner was indicted by the Darlington County Grand Jury in October 2005 for murder (2005-GS-16-01969), armed robbery (2005-GS-16-01970), and conspiracy/criminal conspiracy (2005-GS-16-01971) (app. 211-16).

         Transfer to General Sessions

         The petitioner's charges stem from a murder and armed robbery of a convenience store in Darlington County in 2004 (app. 211-16). At that time, the petitioner was a juvenile (app. 49). On July 18, 2005, a contested waiver hearing was held before South Carolina Family Court Judge Roger E. Henderson to determine whether the petitioner's charges should be transferred from family court to the Darlington County Court of General Sessions (app. 1-48). Henry M. Anderson, Jr., Esq. (“plea counsel”) represented the petitioner at the hearing (app. 1). At the hearing, Judge Henderson heard testimony from Dr. Heffler, a psychologist for the Department of Juvenile Justice (“DJJ”) (app. 5-26). Dr. Heffler testified regarding his examination of the petitioner and recommended that the petitioner remain in the custody of the DJJ because that environment would offer the petitioner a better opportunity for rehabilitation than SCDC (id.). Judge Henderson also heard testimony from Investigator Jackson, an officer with the Darlington County Sheriff's Department who investigated the murder at issue (app. 27-45). Inv. Jackson testified regarding his investigation and the arrest of the petitioner and his co-defendants (id.). Following the testimony, Judge Henderson ruled that in light of the eight factors set forth in Kent v. United States, 383 U.S. 541 (1966), it was appropriate to waive the petitioner's criminal charges to the Court of General Sessions (app. 46-47). Judge Henderson's ruling was followed by a written order on August 3, 2005 (app. 49-50).

         Guilty Plea

         As noted, once the waiver was granted, the petitioner was indicted on charges of murder, armed robbery, and criminal conspiracy (app. 211-16). On April 17, 2006, represented by plea counsel, the petitioner pled guilty to all three charges, but was only sentenced on the criminal conspiracy charge (app. 51-81). South Carolina Circuit Court Judge John M. Milling accepted the plea and sentenced the petitioner to five years on the criminal conspiracy charge (with any sentence later-imposed for murder and armed robbery to run concurrent to the criminal conspiracy charge) (id.). The petitioner did not file an appeal from the criminal conspiracy guilty plea or sentence.

         On September 14, 2007, the petitioner appeared before Judge Milling to be sentenced on the murder and armed robbery charges (app. 83-124). Judge Milling sentenced the petitioner to a term of life imprisonment without the possibility of parole for the murder charge and a concurrent 25-year sentence for armed robbery (app. 122). The petitioner filed an appeal to the South Carolina Court of Appeals, but withdrew it, with the Court of Appeals dismissing his appeal by order dated June 9, 2008 (doc. 33-1).

         PCR No. 1

         On September 11, 2007, the petitioner filed a pro se application for post-conviction relief (“PCR”) with respect to his criminal conspiracy charge (2007-CP-16-0811) (“PCR No. 1”) (doc. 33-2). The petitioner alleged he was in custody unlawfully due to ineffective assistance of counsel (alleging that counsel failed to ask if he wanted to file an appeal), that the judge had a conflict of interest, and that the statements from co-defendants were “void” (id.). The petitioner was assigned counsel, attorney Charles T. Brooks, Esq. (“PCR 1 Counsel”).

         The Honorable Larry B. Hyman, Jr., held an evidentiary hearing in the matter on October 15, 2008 (doc. 33-3 at 1). Assistant Attorney General Karen C. Ratigan represented the State (id.). At the hearing, the petitioner, through PCR 1 Counsel, moved to withdraw PCR No. 1 with prejudice (id.). After hearing testimony from the petitioner with respect to his request to dismiss his petition, Judge Hyman granted the petitioner's request, noting that based upon the petitioner's testimony, the dismissal with prejudice was voluntary, knowing, and intelligent (id. at 1-2). The petitioner did not appeal PCR No. 1.

         PCR No. 2

         The petitioner filed a second pro se PCR application in the Darlington County Court of Common Pleas on November 21, 2008 (2008-CP-16-1006) (“PCR No. 2”) (doc. 33-4, app. 125-29). In that application, he alleged the following grounds for relief:

         1. ineffective assistance of counsel

a. failed to investigate case with close scrutiny
b. failed to object to videotape entered into evidence during plea hearing
2. violations due to illegal indictments a. plea judge did not have subject matter jurisdiction of the indictments
3. illegal waiver from juvenile to adult
a. all 8 factors weren't considered before waiving to general sessions

         (Doc. 33-4; app. 125-29). The State made its return on February 25, 2009 (app. 130-34). The petitioner was then assigned counsel, Gary I. Finklea, Esq. (“PCR 2 Counsel”). Assistant Attorney General Karen C. Ratigan again represented the State. The Honorable Thomas A. Russo held an evidentiary hearing in the matter on September 13, 2010 (app. 137-99). During the hearing, Judge Russo heard testimony from the petitioner and plea counsel (id.). The petitioner, during the hearing, only submitted the following allegations of ineffective assistance of counsel:

1. failure to quash allegedly defective indictments;
2. failure to argue a violation of Rule 3(c), SC R. Crim. P.;
3. failure to appeal family court judge's decision to transfer the case to general sessions;
4. failure to adequately investigate the petitioner's case;
5. failure to advise the petitioner of the plea judge's relationship with the victim;
6. failure to object to the viewing of the videotape (prepared by the victim's family) at the sentencing hearing;
7. failure to move for withdrawal of guilty plea; and
8. failure to submit a motion to reconsider the petitioner's sentence.

(Id.). Judge Russo denied PCR relief in a written order, noting that the petitioner failed to demonstrate both deficient performance of plea counsel or resulting prejudice and that he was only addressing matters raised and addressed during the evidentiary hearing (app. 200-10). The petitioner did not file a motion for reconsideration.

         The petitioner filed a timely notice of appeal from the denial of his application (doc. 33-5), and Appellate Defendant Robert M. Pachak, Esq. (“PCR No. 2 Appellate Counsel”) filed a Johnson[1] petition for writ of certiorari in the South Carolina Supreme Court in September 2011 (doc. 33-6). The petition raised a single issue for consideration and requested that PCR No. 2 Appellate Counsel be relieved:

Whether plea counsel was ineffective because he failed to subject the State's case to a meaningful adversarial testing?

         (Doc. 33-6 at 3). The matter was transferred to the South Carolina Court of Appeals for consideration, pursuant to Rule 243(1), SCACR. The Court of Appeals denied the petition on March 11, 2014, and returned the remittitur on March 27, 2014 (doc. 33-10).[2]

         PCR No. 3

         The petitioner, via counsel Elizabeth Franklin-Best, Esq. (“PCR No. 3 Counsel”), filed a third PCR application in the Darlington County Court of Common Pleas on March 20, 2013 (2013-CP-16-0248) (“PCR No. 3”) (doc. 33-11). The PCR application alleged the following grounds for relief:

1. The petitioner's “sentence of life without parole, imposed for a crime he committed when he was a juvenile, violates the Eighth Amendment to the United States Constitution and Article 1. § 15 of the South Carolina Constitution”;
2. The petitioner's “sentence of life without parole violates the Eighth Amendment to the United States Constitution and Article I, § 15 of the South Carolina Constitution as an excessive and cruel and unusual punishment because he was both a juvenile and a person who did not kill or intend to kill the victim”;
3. The petitioner's “sentence of life without parole violates the Eighth Amendment to the United States Constitution and Article I, § 15 of the South Carolina Constitution, because the proceedings which led to its imposition were both procedurally and substantively inadequate”; and
4. The petitioner “was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution, because [the petitioner's] counsel failed to develop and present mitigating evidence which would have warranted a sentence of less than life without parole.

(Id.). With the PCR application, the petitioner filed a motion to stay the action pending the South Carolina Supreme Court's resolution of Aiken v. Byars, 765 S.E.2d 572 (S.C. 2014), which involved the sentencing of juveniles to life without parole (doc. 33-12). On May 14, 2013, the respondent filed a return and a motion to dismiss, alleging that the application was successive and filed outside the statute of limitations (doc. 33-13). PCR No. 3 Counsel filed a response to the respondent's motion on May 28, 2013, arguing that the pending litigation in Aiken required holding PCR No. 3 in abeyance and also noting that there was statutory authority for filing PCR No. 3 under S.C. Code § 17-27-45(b) (see doc. 33-14 at 4-5).[3] In response, the respondent filed a reply indicating that holding the action in abeyance pending the South Carolina Supreme Court's decision in Aiken would be appropriate (id.). Judge Henderson[4], now a South Carolina Circuit Court Judge, issued an amended conditional order of dismissal on March 16, 2016, followed by a final order of dismissal on March 3, 2017, indicating that the petition was untimely and successive as well as that Aiken ordered that any individual seeking re-sentencing should file the appropriate motion in the Court of General Sessions where originally sentenced (docs. 33-14; 33-15). The petitioner did not appeal PCR No. 3.

         PCR No. 4

         The petitioner filed a fourth PCR application, pro se, in the Darlington County Court of Common Pleas on March 18, 2014 (2014-CP-16-0202) (“PCR No. 4”) (doc. 33-16). The PCR application alleged the following grounds for relief:

1. Ineffective assistance of PCR counsel
a. failed to properly raise claim
2. Ineffective assistance of plea counsel
a. ineffective during critical stage of adversarial process
3. denied confrontation rights
a. denied the opportunity to cross-examine witnesses
4. guilty plea not valid
a. all elements of the charged offenses could not be proven and the petitioner had a justified defense

(Id.). On March 10, 2016, the State submitted its return and motion to dismiss, arguing that the petitioner's PCR should be dismissed because it was untimely and successive (doc. 33-17). On March 16, 2016, Judge Henderson issued a conditional order of dismissal providing the plaintiff with 20 days to provide reasoning why his petition should not be dismissed (doc. 33-18). The petitioner timely responded on May 20, 2016 (doc. 33-19), and, on February 3, 2017, the PCR court issued a final order of dismissal (doc. 33-20). The final order indicated that there is no right to effective assistance of PCR counsel, that the court did properly exercise subject matter jurisdiction over his charges, and that the application was successive (id.).

         The petitioner filed a timely motion for reconsideration under Rule 59(e), SCRCP on April 12, 2011, after seeking an extension of the original deadline (docs. 33-21, 33-22). On April 28, 2017, Judge Henderson denied the petitioner's motion (doc. 33-23). The petitioner appealed PCR No. 4 and submitted a pro se petition for writ of certiorari with the ...


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