Caldwell v. Padula

• Decision Date: 20 September 2011
• Docket Number: Civil Action No.: 6:10-cv-02886-RBH
• Parties: David Caldwell, Petitioner, v. A.J. Padula, Warden, Respondent.
• Court: U.S. District Court — District of South Carolina

David Caldwell, Petitioner,

v.A.J. Padula, Warden, Respondent.

Civil Action No.: 6:10-cv-02886-RBH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

September 20, 2011

ORDER

Petitioner, a state prisoner proceeding pro se, initiated this suit by filing his [Docket Entry 1] Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus (§ 2254 Petition) on November 3, 2010.¹ Petitioner is currently incarcerated at Lee Correctional Institution in Bishopville, South Carolina.

On January 19, 2011, Respondent filed his [Docket Entry 18] Motion for Summary Judgment, along with a return and memorandum, [Docket Entry 19]. Because Petitioner is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), also on January 19, advising Petitioner of the motion for summary judgment procedures and the possible consequences if he failed to adequately respond. Petitioner timely filed responses to the summary judgment motion on February 4, 2011 and April 7, 2011.² See Response I [Docket Entry 22]; Response II [Docket Entry 33].

This matter is now before the court with the [Docket Entry 35] Report and Recommendation("R & R") of United States Magistrate Judge Kevin F. McDonald³ filed on August 3, 2011. In his R & R, the Magistrate Judge "recommended that the respondent's motion for summary judgment . . . be granted." R & R at 16. Petitioner timely filed objections to the R & R. See Obj. [Docket Entry 42].

Underlying Facts

The Magistrate Judge set forth a thorough and accurate synopsis of the underlying facts in his R & R. See R & R at 1-2. Petitioner does not appear to object to this synopsis. Accordingly, the undersigned will not restate the underlying facts herein.

Background and Procedural History

On August 10, 2006, Petitioner, represented by James W. Hancock, Esquire, pled guilty to armed robbery and criminal conspiracy with a sentence recommendation of a cap of twenty (20) years. See Appendix ("App.") [Docket Entry 19-1] at 2, 6-8; see also Indictments [Docket Entry 19-2]. The trial court sentenced Petitioner to twenty (20) years on the armed robbery charge, and five (5) years concurrent on the conspiracy charge. See id. at 16.

Petitioner thereafter filed a direct appeal. On November 28, 2006, Petitioner notified the South Carolina Court of Appeals that he wished to drop his direct appeal. See Nov. 28 Letter [Docket Entry 19-3] at 2. On December 4, 2006, the South Carolina Court of Appeals issued an Order of Dismissal and Remittitur dismissing Petitioner's direct appeal. See Order and Remittitur [Docket Entry 19-4].

On November 27, 2006, before dismissal of his direct appeal, Petitioner filed an applicationfor post-conviction relief ("PCR"). See App. at 20. Respondent in that action made its return on February 26, 2007. See id. at 34-37. The PCR court held an evidentiary hearing on the matter on August 15, 2008, at which Petitioner was represented by Charles T. Brooks, Esquire. See id. at 38-66.

At the hearing, the PCR court heard testimony from Petitioner and Petitioner's trial counsel, Mr. Hancock. In his PCR application, Petitioner raised the following grounds: (1) ineffective assistance of counsel and (2) prosecutorial misconduct. See id. at 22. The PCR court also had before it a copy of the transcript from Petitioner's guilty plea, the records from the York County Clerk of Court, and Petitioner's records from the South Carolina Department of Corrections ("SCDC"). See id. at 67.

On October 28, 2008, the PCR court issued an order dismissing Petitioner's PCR application with prejudice. See id. at 73. That order was filed with the York County Clerk of Court on November 25, 2008. See id. at 67. In the Order of Dismissal, the PCR court specifically found that "[t]he transcript [of the plea hearing] reflect[ed] that the guilty plea was knowingly and voluntarily entered with a full understanding of the charges and consequences of the plea." Id. at 69. The PCR court further found that "trial counsel adequately conferred with [Petitioner], conducted a proper investigation, was thoroughly competent in their representation," and that Petitioner failed to prove either prong of the Strickland⁴ test for ineffective assistance of counsel. Id. at 71-72. As to Petitioner's other allegations, the PCR court found as follows:

As to the allegations of failure to request a YOA sentence, failure to recognize updated law, prosecutorial misconduct, failure to interview witnesses, failure to consult with [Petitioner], failure to inform of constitutional rights, failureto file pre-trial motions, and failure to investigate, which were raised in the application but not at the hearing in this matter, and were not specifically addressed in this Order, th[e] [PCR] Court finds that the [Petitioner] failed to present any probative evidence regarding such allegations. Accordingly, th[e] [PCR] Court finds that the [Petitioner] waived such allegations and failed to meet his burden of proof regarding them. Accordingly, they are denied and dismissed with prejudice.

Id. at 72.

A petition for a writ of certiorari was then filed on Petitioner's behalf by the South Carolina Commission on Indigent Defense by way of a Johnson Petition. The Johnson Petition raised the following issue: "Whether petitioner's guilty plea was entered voluntarily and intelligently?" Johnson Petition [Docket Entry 19-5] at 3. Petitioner then filed his [Docket Entry 19-6] Pro Se Response Brief, raising the following issues:

(1) The subject request the court to review the PCR issues that may have been overlooked by lower court and the arguments hereto/hereafter -

(2) The subject also alleges that there was no evidence to convict subject directed verdict-only statements, no physical evidence.

(3) The subject also request for dismissal of allege case for failure to place a valid transcript into record; only a lose [sic] leaf binder on record.

The subject request the court to file this Writ of Certiorari and forward a copy for files-Indictment-State v. Builard, 348 S.C. 611, 560 S.E.2d 436-Revisit PCR Arguments-Remedies Exhausted-45 day return Brief; review entire record

A Anders Brief and a Johnson Brief is illegal.

A attorney can't disbelieve the client/case allegedly at no time. To allege the allege case has no merit i[s] unconstitutional-The case is to be forward to another firm that can detect merit in case allegedly.

Also subject requestes [sic] for a full copy of any and all allege physical evidence in connection with allege[d]ly case above-statements alone can't convict a petitioner equal protection clause, 14th Amend. A your word against mine Contest Situation -for fore going grant objection motion/dismiss conviction (sentence and or time cut)The 85% wasn't put on record at allege trial-The 85% isn't with in the 16-11-330(a) statue - Arm Robbery allegedly - Changing the meaning of statue - No jurisdiction to impose sentences allege Brocon

Hereby motion to quash a [illegal] video basically using caselaw of allege simalarities [sic] / duplicates - A video isn't a 100% evidence / Duplicate has been used during trial proceedings. Duplicity of film in case above allege[d]ly, quash film/video allege[d]ly.

Also forward a copy of any and all statements and allege[d]ly photographs in allege case above and enter photos and allege statements on the record, only statements rised [sic] probable cause allege[d]ly within case, no physical evidence, statements alone doesn't constitute probable cause for issuance of a arrest warrant without sufficient evidence allege[d]ly.

2. The Attorney was ineffective for failing to file pretrial motions because no evidence is in allege case - Directed Verdict.

3. Attorney ineffective for failing to request state of S.C. to produce a weapon to secure the Arm Robbery 16-11-330(a) statue - must be Armed with a weapon. State v. Nix (S.C. App. 1986) 288 S.C. 492, 343 S.E.2d 627

4. Attorney ineffective for failing to file a law suit for false arrest / appellant attorney also because the kidnapping [sic] was dismissed.

5. The kidnapping [sic] charge evidence prejudice the rest of subject(s) evidence / case and also constitutes nontestimonial evidence before Grand Jury

Pro So Response to Johnson Petition at 3-8. On October 21, 2009, "[a]fter careful consideration of the entire record as required by Johnson v. State," the South Carolina Supreme Court denied Petitioner's petition for a writ. See Supreme Court Order [Docket Entry 19-7]. Remittitur was issued on November 6, 2009. See Remittitur [Docket Entry 19-8].

Petitioner thereafter filed a State Petition for Writ of Habeas Corpus. See State Habeas [Docket Entry 19-9]. In that Petition, Petitioner alleged that he received ineffective assistance of PCR counsel because PCR counsel failed to raise the following issues regarding his ineffective assistance of counsel claims during his first PCR action:

(1) Failure to request a YOA sentence;

(2) Failure to recognize updated law;

(3) Prosecutorial misconduct;

(4) Failure to inform of constitutional rights;

(5) Failure to consult with Petitioner;

(6) Failure to file pre-trial motions; and

(7) Failure to investigate.

State Habeas Order [Docket Entry 19-12] at 2. Petitioner further alleged that he received ineffective assistance of PCR counsel, in a document captioned "A proposed Habeas Corpus Amendment," because PCR counsel failed "to full fill obligation of reviewing the court's order, to assure each claim was framed at the evidentiary hearing for appellate review." State Habeas [Docket Entry 19-9] at 17. Petitioner argued that he amended his original PCR application through his first appointed PCR attorney, but that all of his allegations were not then presented to the PCR court and not ruled upon by the PCR court in that action. Petitioner asserted that he was entitled to another evidentiary hearing so that he could raise, and so that the state court could address, all of those issues he asserts were not addressed in...