Caldwell v. Roberts

• Decision Date: 29 January 2016
• Docket Number: C/A No.: 1:14-4277-RMG-SVH
• Parties: Nathaniel Caldwell III, #341823, Petitioner, v. Warden Roberto Roberts, Respondent.
• Court: U.S. District Court — District of South Carolina

Nathaniel Caldwell III, #341823, Petitioner, v. Warden Roberto Roberts, Respondent.

C/A No.: 1:14-4277-RMG-SVH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

January 29, 2016

REPORT AND RECOMMENDATION

Petitioner Nathaniel Caldwell III, is an inmate at the Allendale Correctional Institution of the South Carolina Department of Corrections. He filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment and return filed on March 6, 2015. [ECF Nos. 16, 17]. After obtaining two extensions, Petitioner filed a response on May 7, 2015. [ECF No. 27]. On May 8, 2015, Petitioner filed a motion to stay this habeas action to exhaust his state remedies. [ECF No. 28]. Respondent opposed the motion to stay [ECF No. 29], and Petitioner replied in support of the stay. [ECF No. 30]. Respondent's motion for summary judgment and Petitioner's motion to stay are fully briefed and ripe for disposition.

After having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Petitioner's motion to stay be denied and Respondent's motion for summary judgment be granted.

I. Factual and Procedural Background

In 2007, a thirteen year-old Dorchester County girl (the victim) communicated to Petitioner that she intended to run away from home. [ECF No. 17-1 at 9]. Petitioner drove to Dorchester County to pick up the victim and drive her back to Petitioner's Horry County apartment. Id. Petitioner kept the victim at his apartment for a period of time until the police were able to locate the victim using the tracking system on her phone. Id. The State alleged that while the victim was at Petitioner's apartment, Petitioner raped and sodomized her. Id.

Petitioner was indicted for kidnapping (2008-GS-26-2238) during the June 2008 term of the Horry County Court of General Sessions. Id. at 104.¹ Petitioner pled guilty to kidnapping on July 15, 2010, before the Honorable Larry B. Hyman, Circuit Court Judge, pursuant to a negotiated plea. Id. at 3-5. At the plea hearing, Petitioner was represented by W. Edward Chrisco, Esq. Id. at 3. In accordance with the negotiated plea, Judge Hyman sentenced Petitioner to 15 years' imprisonment and required him to register as a sex offender. Id. at 14.

Petitioner filed an application for post-conviction relief (PCR) on July 5, 2011, in the Horry County Court of Common Pleas. Id. at 16-23. An evidentiary hearing was held on January 25, 2012 before the Honorable George C. James, Circuit Court Judge.Id. at 28. Petitioner was represented by Paul Archer, Esq. Id. By order dated March 30, 2012, Judge James denied Petitioner's PCR application. Id. at 96-103.

Petitioner appealed from PCR to the South Carolina Supreme Court, which transferred the case to the South Carolina Court of Appeals ("Court of Appeals") pursuant to Rule 243(l), SCACR. Petitioner was represented by Susan Hackett, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. [ECF No. 17-2 at 1]. Attorney Hackett filed a Johnson² petition, raising the following issue:

Did the post-conviction relief judge err in holding Petitioner's guilty plea was intelligently, voluntarily, and knowingly entered in light of Petitioner's testimony that trial counsel failed to explain that as a part of the negotiated plea agreement Petitioner would be required to register as a sex offender for life?

Id. at 3. Attorney Hackett also moved to be relieved as counsel. Id. at 1. Petitioner filed a pro se response in which he raised the following issues:

I. Did the post-conviction relief judge err in finding no credible evidence that the Petitioner's counsel at his plea appearance of July 15, 2010, and prior performance was deficient?

II. Did the post-conviction relief judge err in finding that counsel did fully utilize his investigator to interview potential witnesses and trace andtrack down phone and text messaging records to provide and assist in a credible defense and verify authenticity of such?

III. Did the post-conviction relief judge err in finding that Petitioner failed to prove that trial counsel had a plausible basis to object to the solicitor's recitation in her statement to the court that Petitioner "raped and sodomized . . ."; using such terms and language on record, although alleged, unsubstantiated, and unproven?

IV. Did the post-conviction relief judge err in finding the petitioner pled guilty believing he was guilty and believing he would be convicted if in fact he had gone to trial?

V. Did the post-conviction relief judge err in finding that counsel fully advised the petitioner of all plea options and defense options?

VI. Did the post-conviction relief judge err in finding that counsel fully discussed the State's findings, evidence and discovery facts with the petitioner?

VII. Did the post-conviction relief judge err in his comment and footnote in his opinion regarding the presentation of medical documentation to prove Petitioner's assertion of a distinctive mark?

[ECF No. 17-4].³ On September 25, 2014, the Court of Appeals filed an order denying the petition and granting counsel's request to withdraw. [ECF No. 17-6]. The remittitur issued on October 13, 2014. [ECF No. 17-8].

Petitioner filed this petition for a writ of habeas corpus on October 28, 2014.⁴ [ECF No. 1-6 at 2].

II. Discussion

A. Motion to Stay

Petitioner moves to stay this proceeding and hold it in abeyance "so as to allow the Petitioner to protect his rights by first exhausting all unexhausted issues as well as unpreserved issues in the State Courts." [ECF No. 28 at 1]. Respondent counters that Petitioner's state remedies are exhausted and the petition is ripe for review. [ECF No. 29 at 1-2]. The undersigned agrees that the motion to stay should be denied because, as described in detail below, Petitioner has fully exhausted his state remedies. Because the basis for Petitioner's motion to stay is refuted by the record, Petitioner's motion to stay is denied.

B. Federal Habeas Issues

Petitioner states the following grounds in his habeas petition:

Ground One: Denial of direct appeal, Denial of procedural rights secured by due process, Denial of fundamental fairness, Violations of USCA 5, 6, 14, and Procedural errors. Supporting facts: (A) Right to appeal lost due to Counsel's failure to inquire of Petitioner if he desired to appeal while in the court, after sentencing, and awaiting transfer from county facility to state facility. (B) Right to appeal lost due to counsel's failure to initiate any proper appellate processes in light of the absence of a voluntary intelligent waiver. (C) Petitioner did not willingly, knowingly, voluntarily or intelligently waive his right to appeal. (D) Fundimentally unfair and procedural errors by PCR court and counsel (plea counsel) (PCR counsel) to not acknowledge the fact of the non-existance of valid waiver by petitioner to abandon appeal process. (E) Counsel and counsel's office refused to accept petitioners collect calls from State's R&E facility (Kirkland) while petitioner had six (6) days remaining of the ten (10) available to seek appeal counsel also rejected and returned petitioner's written inquiry and request seeking appeal rejecting it as untimely. (F)Procedural right to appeal denied by counsel's error and failure to protect and properly preserved petitioner's right to appeal process. (G) Due process denied by procedural and fundamentally unfair procedures when PCR Court erred in not ordering a belated appeal in light of counsel's deficiency, the non-existance of a valid waiver, and petitioner stating three (3) times on record at the PCR Hearing he desired a trial.

Ground Two: Unlawfully incarcerated due to denial of due process - failing to meet the elements of convicted offense, actual innocence, insufficient proof and evidence to substantiate conviction, creating deprivation of liberty. Violation USCA 5, 6, 14. Supporting facts: (A) Unlawfully incarcerated as petitioner did not meet the elements of the convicted offense sentenced to, creating deprivation of liberty. (B) Denial of due process by plea counsel's ineffectiveness and PCR Court err in not overturning cognizable errors of not meeting critical elements. (C) Insufficient proof and evidence to substantiate conviction as both petitioner and alleged victim's statements verify in concurrence, of events of Leaving voluntarily. (D) Actual innocence of Petitioner not kidnapping alleged victim based on evidence and uncoerced statements of alleged victim given to authorities (officers, investigating case detective, forensic interviewer) of: 1) intent to leave, 2) voltariness and willingness to leave of her own free will, 3) knowledge of person and destination, 4) demonstrated unrestrained state of being, 5) ample opportunity to leave freely ("escape," getaway"); stated by alleged victim, and proven matters of record and fact in State's discovery - (E) Petitioner not informed or advised of the principles of substantive due process requiring the petitioner to meet each of the elements (7 total - each and every one) beyond reasonable doubt to be convicted (at a trial or a plea) and sentenced of the offense sentenced to.

Ground Three: Denial of Effective Assistance of Counsel Violation USCA 6, 14. Supporting facts: (A) Counsel's ineffectiveness by not providing, disclosing vital and critical information—details of charge, required meeting of critical elements or what the elements were denying petitioner due process and ability to facilitate an intelligent, well informed decision, sound discern ment, rendering the guilty plea unknowing uninformed and involuntary. (B) Effectiveness of Counsel by not protecting petitioner's right to due process and equal protection under the law by not objecting to improper...