Hilton v. Stephon, Case No. 2:18-cv-00962-DCC-MGB

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtMARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
PartiesKenneth Hilton, # 354034, Petitioner, v. Warden Stephon, Respondent.
Docket NumberCase No. 2:18-cv-00962-DCC-MGB
Decision Date13 November 2018

Kenneth Hilton, # 354034, Petitioner,
v.
Warden Stephon, Respondent.

Case No. 2:18-cv-00962-DCC-MGB

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

November 13, 2018


REPORT AND RECOMMENDATION

Kenneth Hilton ("Petitioner"), a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court upon Respondent's Motion for Summary Judgment. (Dkt. No. 14.) 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., this magistrate judge is authorized to review the instant Petition for relief and submit findings and recommendations to the District Court.

The Petitioner filed this action on April 4, 2018. (Dkt. No. 1.) On June 29, 2018, Respondent filed a Motion for Summary Judgment. (Dkt. Nos. 13; 14.) Petitioner has responded to the Motion for Summary Judgment.1 (Dkt. No. 20.) For the reasons set forth herein, the undersigned recommends granting Respondent's Motion for Summary Judgment (Dkt. No. 14).

BACKGROUND

Petitioner is currently confined within the South Carolina Department of Corrections at Broad River Correctional Institution. In March of 2012, the Cherokee County Grand Jury indicted Petitioner for kidnapping and first degree criminal sexual conduct ("CSC"). (Dkt. No. 13-1 at 148-149.) On January 23, 2013, Petitioner pled guilty on the kidnapping charge and

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waived Grand Jury presentment on an indictment for assault with intent to commit second degree CSC before the Honorable J. Derham Cole. (Id. at 146-147.) Petitioner was represented by Don Thompson. (Dkt. No. 18-2 at 1, 3.) Judge Cole sentenced Petitioner to consecutive terms of twenty-five years for kidnapping and twenty years for assault with intent to commit second degree CSC. (Id. at 3-33; 130; 132.) Petitioner did not appeal his convictions or sentence.

Petitioner filed an application for post-conviction relief ("PCR") on May 1, 2013. (Id. at 35-42.) Therein, Petitioner alleged ineffective assistance of counsel, and he "reserve[d] the right to amend the Application's grounds [at] a later date." (Id.) The State filed a Return and a Motion for More Definitive Statement. An evidentiary hearing was originally scheduled for April 10, 2014. However, Petitioner filed a series of motions on February 7, 2014, and April 1, 2014, in which he asked to have his appointed attorney, Leah B. Moody, Esquire, relieved. (Dkt. No. 13-2 at 3-22.)

On April 10, 2014, Judge Cole held a hearing on Petitioner's motion to relieve counsel. (Id. at 24-26.) Petitioner was present at this hearing and Ms. Moody represented him. (Id.) Petitioner again moved to relieve counsel. (Id. at 28-29.) On July 22, 2014, Judge Cole issued a written Order granting Petitioner's motion, noting that the court had instructed Petitioner that the court would not appoint a new attorney if he chose to relieve his appointed counsel and that Petitioner would be required to proceed pro se. (Id. at 35.)

On March 27, 2015, an evidentiary hearing was held before the Honorable Roger L. Couch. (Dkt. No. 13-1 at 48.) Petitioner was present and represented himself. (Id.) Petitioner testified on his own behalf at the hearing, while the State presented testimony from plea counsel, Mr. Thompson. (Id. at 49-105.) In an Order dated September 28, 2015, Judge Couch denied the application for post-conviction relief and dismissed with prejudice the petition. (Id. at 138-145.)

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The Order addressed Petitioner's claims that: (1) the plea judge did not have jurisdiction to accept his guilty pleas because plea counsel and the Assistant Solicitor withheld information regarding his mental status; (2) the plea judge did not have jurisdiction to accept his guilty pleas because plea counsel failed to bring the kidnapping indictment to him for his signature; and (3) his guilty plea was involuntary because plea counsel's lack of representation forced him to plead guilty. (Id.)

Petitioner timely served and filed a notice of appeal. (Dkt. No. 13-3.) Assistant Appellate Defender Robert M. Pachack represented Petitioner in the collateral appellate proceedings. On January 13, 2016, Petitioner filed a Petition for Writ of Certiorari through Mr. Pachack. (Dkt. No. 13-4.) He presented the following issue on certiorari: "Whether the PCR court erred in allowing petitioner to represent himself when it did not warn petitioner of [the] dangers and disadvantages of self-representation?" (Id. at 3.) The State filed a Return to Petition for Writ of Certiorari on July 11, 2016. (Dkt. No. 13-5.) On September 8, 2017, the South Carolina Supreme Court filed an Order granting certiorari and directing the parties to submit briefs. (Dkt. No. 13-6.)

Petitioner filed a Brief of Petitioner on October 26, 2017. (Dkt. No. 13-7.) He presented the following issue for review: "Whether the PCR court erred in allowing petitioner to represent himself when it did not warn petitioner of dangers and disadvantages of self-representation?" (Id. at 4.) The State filed a Brief of Respondent on December 27, 2017. (Dkt. No. 13-8.) On February 28, 2018, the Court filed a published Opinion affirming the denial of relief. (Dkt. No. 13-9); see Hilton v. State, 422 S.C. 204, 810 S.E.2d 852 (2018). It sent the Remittitur to the Cherokee County Clerk of Court on March 16, 2018. (Dkt. No. 13-10.)

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Petitioner then filed the instant pro se habeas petition, wherein he raised the following grounds for review (verbatim):

GROUND ONE: Did the South Carolina Supreme Court err when the Court ruled that the P.C.R. Court did not err when the court allowed Petitioner to represent himself without warning.
Supporting facts: At the start of the PCR hearing the PCR court stated that the records before it indicated that Petitioner was representing himself. Petitioner stated that was correct. The court asked if that was how he wished to proceed and petitioner replied in the affirmative. The court advised petitioner that if he wanted an attorney, one would be appointed. Petitioner said he did not need an attorney. (App. p. 49, lines 16-25)[.] The record does reflect on App. 50, line 8 - p. 52[,] line 20 that the Court made an inquiry of the Petitioner about his [choice] to represent himself. However, notably absent from the inquiry was any warning as required by Faretta v. California 422 U.S. 806, 95 S.Ct. 2525, Wroten v. State 301 S.C. 293[,] 391 S.E.2d 575, Sally v. State 410 S.E.2d 921[.]
Faretta requires that a defendant "be made aware of the dangers and disadvantages of self-representation so that the record will establish he knows what he is doing and his [choice] is made with eyes open[."] 95. S.Ct. at 2541. . . . The South Carolina Supreme Court made the following statement before Affirming Petitioner's Appeal of the PCR court's decision. See Opinion No. 27772. "[T]he PCR Applicant must be made aware of right to counsel and the dangers of self-representation." Whitehead v. State 426 S.E.2d 315, Prince v. State 392 S.E.2d 462. Richardson v. State 659 S.E.2d 493. "Nevertheless, this record indicates—though does not clearly reveal—Hilton was aware of these advantages." "At the initial hearing, the PCR court clearly erred by failing to ensure Hilton understood the dangers and disadvantages of self-representation before granting the motion to relieve his appointed counsel." State law provides that counsel must be appointed or a knowing, intelligent waiver of the right to counsel must be obtained. Even with the facts and law in support of the Petitioner[,] the S.C. Supreme Court affirmed the decision of the lower court. The Petitioner has established from the record that . . . the Applicant did not receive a full, fair and adequate [hearing] in the State Court on this Issue. The Applicant was otherwise denied due Process of Law in the State Court proceeding. . . .

GROUND TWO: Do the Courts have jurisdiction to rule Petitioner's claims?
Supporting facts: . . . On September 24, 2015, the Honorable Roger L. Couch issued an order in the petitioner's PCR where he did not make a finding of fact and conclusion of law on each issue present as required by Statute. Therefore the S.C. Supreme Court did not have Jurisdiction to make a ruling on the PCR Order. The solicitor's failure to follow the State's Mandatory rules and S.C. law for criminal guilty pleas violated Petitioner's constitutional Due Process Rights to Receive a Fair Plea Hearing Process. [The] Solicitor's unprofessional errors [invalidated] [Petitioner's] guilty plea and created a Jurisdictional Structural Defect, by [withholding] "factual Evidence of Petitioner's [psychological] Mental

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history from the trial judge misleading the judge to believe Petitioner's case was ready for trial.
Both [the] Assist. Solicitor and Trial Counsel [withheld] Actual Evidence, intentional or not, is irrelevant, the withholding of factual evidence violated Due Process and [invalidated] Petitioner's guilty plea. [D.] Upon being advised of Petitioner's History of Mental Illness the Court by S.C. law must order a Mental Health Examination, and a Competency hearing. Once the Court was informed of Petitioner's History and failed to order a Competency Hearing and Ruled the Petitioner was Competent without a Mental Evaluation. See Tr. Pg. 20 L.8-23 - Tr. Pg. 26 L. 17-22. The failure by the Court to act on the factual Evidence once informed deprived the Court of jurisdiction to accept Petitioner's Guilty Plea. . . . Counsel failed to bring the [kidnapping] indictment for my signature of a waiver, nor was the sentencing form signed. [The] failure by counsel obtain my signature on those documents created a structural defect and deprived the Court of Jurisdiction to accept a guilty plea.
The cumulative errors by Counsel and the Solicitor are not harmless errors. Prejudice is not required when analyzing whether the court has subject matter jurisdiction. Counsel's errors contributed to the Court's lack of Jurisdiction,
...

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