Harris v. Warden, Civil Action No.:2:13-2755-JMC-WWD

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtWALLACE W. DIXON UNITED STATES MAGISTRATE JUDGE
Decision Date12 September 2014
PartiesAlbert T. Harris, #296543, Petitioner, v. Warden, Broad River Correctional Institution, Respondent.
Docket NumberCivil Action No.:2:13-2755-JMC-WWD

Albert T. Harris, #296543, Petitioner,
v.
Warden, Broad River Correctional Institution, Respondent.

Civil Action No.:2:13-2755-JMC-WWD

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

September 12, 2014


REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

The Petitioner, Albert T. Harris, #296543, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from three state convictions. This matter is before the Court upon Respondent's Motion for Summary Judgment. (Dkt. No. 23).

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Judge.

The Petitioner brought this habeas action on October 10, 2013. (See Dkt. No. 1) On March 17, 2014, Respondent filed a Motion for Summary Judgment1. (Dkt. No. 23; see also Dkt. No. 24.) By order filed March 17, 2014, pursuant to Roseboro v. Garrison,

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528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 25.) Petitioner filed his Response in Opposition on or about May 6, 2014. (Dkt. No. 29.) Hence it appears consideration of the motion is appropriate.

PROCEDURAL HISTORY

Petitioner is currently confined in the Broad River Correctional Institution of the South Carolina Department of Corrections pursuant to orders of commitment of the Clerk of Court for Berkeley County. Petitioner was indicted at the November 2007 term of the Berkeley County grand jury for Murder (2007-GS-08-2088), Burglary in the 1st degree (2007-GS-08-2091), and Armed Robbery (2007-GS-08-2090). William J. Clifford, Esquire, represented Petitioner on the charges. On January 26, 2009, Petitioner pled guilty before the Honorable Kristi L. Harrington, Circuit Court Judge ("the plea/sentencing court") to the lesser included offense of Involuntary manslaughter (2007-GS-08-2088) and, as indicted, for Burglary in the 1st degree (2007-GS-08-2091) and Armed Robbery (2007-GS-08-2090). A charge of Assault and Battery with Intent to Kill (ABWIK) was dismissed. This was a negotiated plea or sentence to between fifteen (15) and thirty (30) years in prison. Judge Harrington sentenced Petitioner to twenty-five (25) years for Burglary in the 1st degree, ten (10) years for Armed Robbery, and Five (5) years for involuntary manslaughter. The sentences were ordered to run concurrently. Subsequently, Petitioner testified against a co-defendant in the same case. Petitioner then filed a Motion for Reconsideration of Sentence. On June 12, 2009, Judge Harrington denied Petitioner's Motion for Reconsideration of Sentence. Petitioner did not appeal his guilty pleas or sentences. (App. pp. 1-59).

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Petitioner filed an application for post-conviction relief (PCR) on September 1, 2009. (2009-CP-8-2981). The State filed a Return on March 2, 2010. An evidentiary hearing into the matter was convened on January 27, 2011, at the Charleston County Courthouse before the Honorable Roger M. Young, Circuit Court Judge ("the PCR Court"). Petitioner was present at the hearing and testified, represented by Christopher J. Louden, Esquire. Also testifying was Petitioner's plea counsel William J. Clifford, Esquire. The PCR Court also had before it a copy of the transcript of the proceedings against Petitioner, the records of the Berkeley County Clerk of Court, and Petitioner's records from the South Carolina Department of Corrections.

On February 24, 2011, the PCR Court issued its Order of Dismissal denying and dismissing the PCR application with prejudice except for granting Petitioner a belated direct appeal pursuant to White v. State, 263 S.C. 110, 108 S.E.2d 35 (1974). The Order was filed with the Berkeley County Clerk of Court on February 28, 2011.

After first reviewing the procedural history and posture of the case, the PCR Court noted that in the application, Petitioner alleged he was being held in custody unlawfully for the following reasons:

1. Ineffective assistance of counsel in that counsel failed to thoroughly investigate the case.

2. Judge erred in abusing her discretion by enhancing Petitioner's nonviolent charges.

3. Violation of due process in that counsel failed to advise Petitioner of right to appeal.

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PCR Court's Findings of Fact and Conclusions of Law

In its order, the PCR Court noted it had the opportunity to review the record in its entirety and had heard the testimony and arguments presented at the PCR hearing. The Court noted it also had the opportunity to observe each witness who testified at the hearing, and to closely pass upon his or her credibility. The Court pointed out it had weighed the testimony accordingly. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to South Carolina Code Section 17-27-80 (1985).

The PCR Court noted that Petitioner testified that plea counsel felt it was in Petitioner's best interest to plead guilty. He asserted that at first he refused to cooperate with the Solicitor's Office against his co-defendants, but he decided to testify against his co-defendants after the plea so the victim's family could know the truth. He testified that the State extended a plea offer in October 2008, but he rejected the plea offer and declined to cooperate against his co-defendants at that time. Petitioner asserted that he admitted his gun discharged, but he did not admit to murder. He testified that after his guilty plea he testified against co-defendant Cory Prioleau. Petitioner noted that Mr. Prioleau was sentenced to fifteen (15) years for burglary - 1st degree and ten (10) years for armed robbery after trial. James McDaniel, another co-defendant, was sentenced to sixteen (16) years following his guilty plea to accessory before the fact to armed robbery.

Petitioner testified that counsel never consulted with him about an appeal. He testified that at one point counsel said he had every intention to appeal, but they never discussed the issues. Petitioner testified that he never discussed an appeal with

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counsel after the motion for reconsideration was denied. He asserted that he wanted an appeal and that his appeal issue would have been regarding sentencing.

The PCR Court noted that plea counsel testified that he was retained by Petitioner's grandmother and he met with Petitioner 10-15 times prior to the plea hearing. He testified that he reviewed the Rule 5 materials with Petitioner, hired a private investigator that spoke with people who made statements, and thoroughly investigated whether it was Petitioner's gun that fired. He testified that Petitioner gave a statement in which he admitted that his weapon discharged twice, and several witnesses gave statements indicating that they heard only two shots. Counsel asserted that he argued from the beginning that it was not a murder case, but his bigger concern was getting around the confession to burglary and armed robbery. He testified that the solicitor would not budge on the burglary - 1st degree charge. Counsel believed the State would seek life if Petitioner went to trial. He testified he went over the negotiated sentence range of 15-30 years with Petitioner.

Counsel testified that he filed a motion for reconsideration after the plea, and Petitioner subsequently cooperated with the State by testifying against one of the co-defendants. Counsel asserted that the Solicitor told him he, the Solicitor, could not ask for a reduced sentence, but he would not oppose a reduced sentence at the motion for reconsideration hearing. He testified that he believed twenty-five (25) years was harsh, but it was within the negotiated range of 15-30 years so the plea court did not abuse its discretion. Counsel testified that he believed Petitioner's prior burglary - 3rd degree and strong arm robbery convictions were important in the plea court's decision not to reduce the sentence. He asserted the only traction for appeal might have been

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that the judge took Petitioner's experience in the Navy into consideration to his detriment in that she commented that he should have known better.

Counsel testified that he received an e-mail from the Solicitor, Mikell Henderson, in October 2008 that indicated the State might be willing to defer sentencing if Petitioner cooperated against the co-defendants. Counsel asserted that Petitioner was resistant to plead guilty until a week before the plea in January 2009. He asserted that it was difficult to get Petitioner to cooperate with the State even after a plea. Counsel testified that he was surprised that the plea judge did not reduce the sentence at the motion for reconsideration hearing. Counsel testified that Petitioner did not ask him to file an appeal on the plea or the motion for reconsideration. He asserted that he probably would have appealed the motion for reconsideration if he had received an order on that motion.

Ineffective Assistance of Counsel

The PCR Court noted that Petitioner alleged he received ineffective assistance of counsel as a ground for relief. The PCR Court pointed out that in a post-conviction relief action, the applicant has the burden of proving the allegations in the...

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