Gibson v. State
Decision Date | 07 November 1996 |
Docket Number | No. 24737,24737 |
Citation | 495 S.E.2d 426,329 S.C. 37 |
Court | South Carolina Supreme Court |
Parties | David H. GIBSON and Donnie R. Gibson, Appellants, v. The STATE, Respondent. . Heard |
Assistant Appellate Defender M. Anne Pearce, of S.C. Office of Appellate Defense, Columbia, for appellants.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Teresa Nesbitt Cosby, Assistant Attorney General Allen Bullard, Columbia, for respondent.
Appellants appeal the trial court's summary dismissal of their petitions for writs of habeas corpus claiming they should have been granted a hearing on the petitions. We reverse and remand.
On July 23, 1976, appellants were convicted of murder and were sentenced to confinement for life. They did not appeal their convictions.
On August 21, 1995, appellants filed petitions for writs of habeas corpus, pro se, alleging previous post-conviction relief (PCR) applications were denied, the allegations contained in this habeas petition were not presented at PCR, and habeas corpus is their only avenue of redress. In the petitions, appellants claim they were denied a fair trial because the trial court gave an erroneous presumption of malice jury instruction which impermissibly shifted the burden of proof from the prosecution to them.
The trial judge dismissed these petitions on September 1, 1995, without holding a hearing to determine the sufficiency of the allegations. In his Order, the trial judge found appellants' claims should have been addressed on direct appeal or in a PCR hearing, and habeas corpus was not a substitute for these remedies. We granted appellants' petitions for certiorari.
Did the trial court err in summarily dismissing appellants' petitions for writs of habeas corpus?
The purpose of habeas corpus is to test the legality of the prisoner's present detention. McCall v. State, 247 S.C. 15, 145 S.E.2d 419 (1965). The only remedy that can be granted is release from custody. Id.
A habeas corpus petition must support the requested relief. Hunter v. State, 316 S.C. 105, 447 S.E.2d 203 (1994). Although the allegations in the petition are to be treated as true, Tillman v. Manning, 241 S.C. 221, 127 S.E.2d 721 (1962), the petition must make out a prima facie case showing petitioner is entitled to relief. Welch v. MacDougall, 246 S.C. 258, 143 S.E.2d 455 (1965); Crosby v. State, 241 S.C. 40, 126 S.E.2d 843 (1962). Petitioner must present sufficient factual allegations to support the petition. Hayes v. State, 242 S.C. 328, 130 S.E.2d 906 (1963). It must allege petitioner has exhausted all other remedies, and it must set out a constitutional claim that meets the standard delineated in Butler v. State, 302 S.C. 466, 397 S.E.2d 87, cert. denied, 498 U.S. 972, 111 S.Ct. 442, 112 L.Ed.2d 425 (1990). 1 If the petition, on its face, meets these requirements, petitioner is entitled to a hearing.
The availability of habeas corpus has been severely limited by the Uniform Post Conviction Procedure Act, S.C.Code Ann. §§ 17-27-10 to 17-27-120 (Law. Co-op.1976 & [329 S.C. 41] Supp.1995) (Act). The Act S.C.Code Ann. § 17-27-20(b) (1976). Thus, this Act supersedes and encompasses the habeas corpus procedure provided by statute. See S.C.Code Ann. §§ 17-17-10 to 17-17-200 (Law.Co-op.1976). However, habeas corpus continues to be available as a constitutional remedy provided a petitioner qualifies for this extraordinary relief and clears the procedural hurdles. See S.C. Const. art. 1, § 18; Baskins v. Moore, 362 F.Supp. 187 (D.S.C.1973) ( ).
Habeas corpus is available only when other remedies, such as PCR, are inadequate or unavailable. See Baskins v. Moore, 362 F.Supp. 187, 192 n. 5 (D.S.C.1973); Stirone v. Markley, 345 F.2d 473 (7th Cir.), cert. denied, 382 U.S. 829, 86 S.Ct. 67, 15 L.Ed.2d 73 (1965); Leichtman v. Singletary, 674 So.2d 889 (Fla.Ct.App.1996) ( ); Wiglesworth v. Wyrick, 531 S.W.2d 713 (Mo.Sup.Ct.1976) ( ); 18 Am.Jur.2d, Coram Nobis § 46 (1985). The Act is broadly inclusive and will rarely be inadequate or unavailable to test the legality of the detention. A habeas corpus petition may be treated as a PCR application. Hunter v. State, supra ( ).
A petitioner may allege constitutional violations in PCR proceedings, see S.C.Code Ann. § 17-27-20(a)(1) (1976), unless the issue could have been raised by direct appeal. See Simmons v. State, 264 S.C. 417, 215 S.E.2d 883 (1975); S.C.Code Ann. § 17-27-20(b) (1976). A violation found to be unconstitutional after the time for appeal lapses is not a direct appeal issue and is not barred from PCR consideration. See Twitty v. Maass, 96 Or.App. 631, 773 P.2d 1336 (1989) ( ). However, a petitioner who does not raise an issue which could have been raised in a prior PCR hearing will waive his right to raise this issue in a subsequent application. See S.C.Code Ann. § 17-27-90 (1976).
Procedurally, a petitioner seeking habeas corpus must first exhaust all available PCR remedies. Pennington v. State, 312 S.C. 436, 441 S.E.2d 315 (1994). Exhaustion includes filing of an application, the rendering of an order adjudicating the issues, and petitioning for, or knowingly waiving, appellate review. Further, petitioner must allege sufficient facts to show why other remedies, such as PCR, are unavailable or inadequate.
The petitions herein do not satisfy these...
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