Gaynor v. Taylor

• Decision Date: 30 September 2011
• Docket Number: C/A No. 0:10-2724-MBS-PJG
• Parties: Robert W. Gaynor, #315628, Petitioner, v. Edsel Taylor, Warden of MacDougall Correctional Institution, Respondent.
• Court: U.S. District Court — District of South Carolina

Robert W. Gaynor, #315628, Petitioner,

v.Edsel Taylor, Warden of MacDougall Correctional Institution, Respondent.

C/A No. 0:10-2724-MBS-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

Dated: September 30, 2011

OPINION AND ORDER

Petitioner Robert W. Gaynor is a prisoner in the custody of the South Carolina Department of Corrections who currently is housed at the Marlboro County Jail. Petitioner, represented by counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that he is being held in custody unlawfully. Petitioner seeks relief in the form of vacatur of his conviction and/or sentence and a remand to the state court.

This matter is before the court on Respondent's motion for summary judgment filed February 22, 2011. ECF No. 17. By order filed February 23, 2011, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately. ECF No. 19. Petitioner filed a response in opposition to Respondent's motion on May 17, 2011. ECF No. 30. Respondent filed a reply on May 27, 2011. ECF No. 32.

In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pretrial handling. The Magistrate Judge issued a Report and Recommendation on August 15, 2011, in which she recommended that summary judgment be granted. ECF No. 33. On September 12, 2011, Petitioner filedobjections to the Report and Recommendation. ECF No. 38.

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

I. FACTS

On August 8, 2005, Petitioner was indicted in Charleston County, South Carolina for: 1) one count of possession of methamphetamine with intent to distribute on or about June 30, 2005; 2) one count of manufacturing methamphetamine on or about June 30, 2005; 3) one count of unlawful possession of ephedrine on or about June 30, 2005; 4) one count of possession of a weapon during the commission of a violent crime;¹ 5) one count of willfully violating the South Carolina Pollution Control Act on or about June 30, 2005; and 6) three counts of unlawful conduct towards a child on or about June 30, 2005. ECF No. 18-1 at 141-146; ECF No. 18-7 at 7-26. On May 24, 2006, Petitioner appeared before Judge Kenneth G. Goode in the Charleston County Court of General Sessions and pleaded guilty to possession of methamphetamine with intent to distribute, manufacture of methamphetamine, unlawful possession of ephedrine, and possession of a weapon during the commission of a violent crime. ECF No. 18-1 at 1-24.Petitioner was represented by Ted Smith, Assistant Public Defender for Charleston County. Id. at 1. Petitioner's remaining charges were dropped. ECF No. 18-7 at 7-26. Judge Goode sentenced Petitioner to fifteen years imprisonment for possession of methamphetamine with intent to distribute as a third offense; fifteen years imprisonment for manufacturing methamphetamine as a third offense; ten years imprisonment for possession of ephedrine; and five years imprisonment for possession of a weapon during the commission of a violent crime. ECF No. 18-1 at 23. All sentences were ordered to be served concurrently. Id. Petitioner did not file a direct appeal.

On November 26, 2006, Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") in state court. ECF No. 18-1 at 26-32. Petitioner asserted the following grounds in his application for PCR:

1. Petitioner alleged that his guilty plea was invalid because it was conditional and because South Carolina law required guilty pleas to be unconditional.

2. Petitioner alleged that his guilty plea was involuntary.

3. Petitioner alleged that the factual basis for his plea was incorrect because his prior offenses should have been counted as only a single offense rather than two offenses.

4. Petitioner alleged that the plea court lacked subject matter jurisdiction to enter a conviction or impose a sentence on any of the indictments.

5. Petitioner alleged that his lawyer rendered ineffective assistance by advising Petitioner to plead guilty to a third offense when the facts and law established that it was only a second offense.

6. Petitioner alleged that South Carolina's drug statutes are unconstitutional as written.

Id. at 38-55.

An evidentiary hearing was held on July 25, 2008. ECF No. 18-1 at 71. Petitioner wasrepresented by counsel. Id. Petitioner testified regarding the circumstances of his two prior convictions for methamphetamine offenses. Petitioner testified that he was arrested on May 9, 2004, for possession of methamphetamine after a traffic stop in Dorchester County. Id. at 80-81. Petitioner further testified that while being held in jail, police obtained a warrant to search his house in Charleston County, resulting in a subsequent drug charge on May 11, 2004. Id. at 81-82. Petitioner's counsel characterized the subsequent drug charge as the result of a "continuing investigation stemming from the traffic stop." Id. at 82.

Petitioner testified that after his arrest for the offenses giving rise to his current petition, Ted Smith was appointed as his attorney. ECF No. 18-1 at 85-86. Petitioner stated that he had "not a whole lot" of conversations with Mr. Smith while he was in jail, but that he did have an opportunity to discuss his case with Mr. Smith. Id. at 86. When asked whether he had an opportunity to discuss his criminal history with Mr. Smith, Petitioner stated "I'm sure we touched on it," and then added "I mean nothing to any extent." Id. at 87.

Petitioner testified that Mr. Smith brought him an offer from the Solicitor's Office to plead to a term of fifteen years imprisonment for a third offense of manufacturing methamphetamine and possession of methamphetamine with intent to distribute. ECF No. 18-1 at 88. Petitioner acknowledged that this was the mandatory minimum for a third offense, and that the mandatory minimum for a second offense was five years. Id. at 88-89. Petitioner testified that he remembered the solicitor saying that if he did not take the plea, he would be facing a mandatory minimum of twenty-five years. Id. at 90. Petitioner testified that the solicitor had stated before the plea court that Petitioner's "only criminal history was . . . a singular conviction nine months before." Id. at 91. Petitioner stated that he pleaded guilty"[b]ecause [he] didn't want to face getting twenty-five years." Id. at 92. Petitioner testified that he asked Mr. Smith to try to get a lower plea deal, but that Mr. Smith had stated that the Solicitor's Office would not budge. Id. at 93-94.

Mr. Smith also testified at the PCR hearing. Mr. Smith testified that he "[went] over the facts with [Petitioner]" and that "the State had a pretty good case against him." ECF No. 18-1 at 101. Mr. Smith further testified that he asked the Solicitor's Office "probably twenty times" to agree to a lower sentence but was consistently refused. Id. at 101-02. Mr. Smith opined that he was unable to get a better deal because a third offense carries a fifteen-year mandatory minimum. Id. at 102. Mr. Smith testified that he performed specific case law research regarding Petitioner's prior record. Id. at 103. On cross-examination, Mr. Smith testified that he had discussed with Petitioner the possibility, based on the proximity of Petitioner's two prior convictions, of the trial judge making a determination that the current offense was only a second offense. Id. at 109. In response to a question from the PCR judge, Mr. Smith testified that he discussed with the solicitor whether the offense was a second or third offense, and that the solicitor relied on a South Carolina treatise on drug litigation and Page v. South Carolina Department of Highways and Public Safety, 495 S.E.2d 220 (S.C. 1997), in determining that it was a third offense. Id. at 111-12.

On September 8, 2008, the PCR judge issued an Order of Dismissal denying Petitioner's application for PCR. ECF No. 18-1 at 134-40. The PCR judge, citing Strickland v. Washington, 466 U.S. 668 (1984), noted that in an ineffective assistance of counsel claim "the proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases." Id. at 137. The PCR judge further noted that "courts presume thatcounsel rendered adequate assistance and made all significant decisions in the exercise of reasonable judgment," and that "[t]he applicant must overcome this presumption." Id.

The PCR judge found Petitioner's testimony not credible and found Mr. Smith's testimony credible. ECF No. 18-1 at 138. The PCR judge found that Mr. Smith "conferred with [Petitioner] on numerous occasions" and "discussed the pending charges, the elements of the charges and what the State was required to prove, [Petitioner's] constitutional rights, [Petitioner's] version of the facts, and possible defenses or lack thereof." Id. The PCR judge found that "the plea was entered voluntarily and intelligently," and that Petitioner "understood that he could proceed to trial if he wished to challenge his prior record." Id. The PCR judge noted that although "[Petitioner's] PCR attorney presented a salient argument, as well as pertinent cases, in support of [Petitioner's] claims," the cited case law was "not dispositive to the present situation." Id. The PCR judge noted that Mr. Smith "met with the...