REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE This matter is before the Court on Respondent's motion for summary judgment. [Doc. 21.] Petitioner, proceeding pro se, is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on June 6, 2014.1 [Doc. 1.] On October 15, 2014, Respondent filed a motion for summary judgment and a return and memorandum to the Petition. [Docs. 21, 22.] On the same day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 23.] On November 20, 2014, Petitioner filed a response in opposition to the motion for summary judgment. [Doc. 25.] On April 6, 2015, the Court directed Respondent to supplement the record with file-stamped copies of the remittitur(s)in Petitioner's direct and PCR appeal(s) so that this Court could adequately consider Respondent's statute of limitations defense. [Doc. 28.] Respondent supplemented the record on April 20, 2015. [Doc. 31.]
Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted and the Petition be denied.
Petitioner is presently confined in the South Carolina Department of Corrections at Lieber Correctional Institution pursuant to orders of commitment of the Williamsburg County Clerk of Court. [Doc. 1.] In December 2004, Petitioner was indicted for murder, burglary-first degree, armed robbery, possession of a weapon during a violent crime, and attempted armed robbery. [App. 407-08.2] On March 21, 2005, represented by LeGrand Carraway, Petitioner proceeded to trial. [App. 1-363.] On March 23, 2005 Petitioner changed his plea and pled guilty to the murder charge and the possession of a weapon during a violent crime charge. [App. 320.] The State dropped the remaining three charges. [Id.] Petitioner was sentenced to life for the murder charge and five years for the possession of a weapon during the commission of a violent crime charge, to run consecutively. [App. 359, 365-66.]
Petitioner appealed his conviction. Eleanor Duffy Cleary ("Cleary") of the South Carolina Commission on Indigent Defense filed an Anders3 brief on Petitioner's behalf in the South Carolina Court of Appeals, dated September 7, 2006, raising the following issue:
Whether appellant's guilty plea failed to comply with the mandates set forth in Boykin v. Alabama?
[Doc. 22-4 at 4.] At the same time she filed the Anders brief, Cleary submitted a petition to be relieved as counsel. [Doc. 22-4 at 8.] Petitioner filed a pro se brief, received by the South Carolina Court of Appeals on October 3, 2006, raising the following issues, quoted substantially verbatim:
Whether appellant's guilty plea failed to comply with the mandates set forth in Brown v. State?
Also The mandates set forth in Pringle v State? Petitioner contends the state has denied him due process of law and the court can not obtain jurisdiction on an unlawful documents and all the action taken by the court by law should be void. Brown v State
[Doc. 22-6 at 4 (emphasis in original).] On January 15, 2008, the South Carolina Court of Appeals dismissed Petitioner's appeal and granted counsel's motion to be relieved. [Doc. 22-7.] Remittitur was issued on January 31, 2008 [Doc. 22-8] and was filed on February 1, 2008 [Doc. 31-1].
Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on October 10, 2008. [App. 371-76.] Petitioner alleged he was being held in custody unlawfully based on the following grounds, quoted substantially verbatim:
(a) Ineffective assistance of counsel
(b) Lack of subject MATTER JURISDICTION
(c) Violation of Due process, Involuntary guilty plea
[App. 373.] In support of his grounds, Petitioner wrote "Look at attached sheets." [Id.] In his attachment in support of his grounds for relief, Petitioner provided the following, quoted substantially verbatim:
Counsel was ineffective in failing to object to indictments because the Grand Jury True Billed and the foreperson of the Grand Jury signed off on the TrueBill, on Dec 2, 2004. Also my Indictments were filed by the clerk of court on the same date. But the indictments show that the Grand jury, At a Court of General Sessions, convened on Dec. 6, 2004 (Four4) days after my indictments were true billed. How could the Grand jury Foreman sign and true bill my Indictments before the Grand jury had a chance to convene on the charges I was indicted for to make a judgement, This leaves the court at a Lack of subject matter jurisdiction. And, My counsel if he was effective he would have notice[d] this but, for his lack of investigation in my case he was ineffective.
Counsel was also ineffective by giving Erroneous plea advi[c]e. Advising his client to plea to charges that prosecution had no subject matter jurisdiction to charge me. Or no substantial evidence to find guilt. They lack a positive I.D. on suspects or a weapon, finger prints n[e]ither.
Counsel was ineffective by advi[s]ing his client (me) to plead guilty to Murder and possession of a weapon during a violent crime. When client was not guilty of a crime or was not witnessed to be at a crime scene. further more This constituted ineffective assistance of counsel, where defendantwanted a jury trial but pled guilty to offenses which he did not commit based on counsel's advice and after counsel and Lt Rudy Tisdale head detective tricked client to plead guilty by telling me I could get a death penalty and I knew I was guilty. This happen during [page is cut off].
I would contend counsel was [inept] and [ineffective] for failure to investigate the Language on the Affidavit portion of my Arrest warrants. In as much this Failure shows that counsel did not investigate my case [Legally]. In so far the Affidavits in this instant case in [whole] does [not] show probable cause to arrest the petitioner more over does [not] show probable cause for the magistrate to ev[en] issue the arrest warrants. Likewise the Affiant on the charge of Murder [warrant] H-437611Inv Rudy Tisdale and [he] had [no] personal knowledge of this murder, no[r] did he witness it, Likewise the officer swore to something befor[e] a Judicial officer that he had [no] personal knowledge of, and the judicial officer under, this circumstance [never] should have issued these aforesaid warrants. H-437611. Inasmuch the Affidavits in question do not state [who] told the officer about this incident, or [How] He obtained This Informat[ion] moreover it does not state on the Affidavit [How] the petitioner was even implicated in this Actus Reas or Mala in se.
I contend counsel was inept, And constitutionally [ineffective] for failing to investigate his [mental] [Health] for a defense at trial. . Trial counsel never had the petitioner Mentally evaluated in this case. And he nor anyone in his office ever asked the petitioner Anything about his back ground [Medically] Emotionally or psychiatrically. Hence in Walker vs Mitchell 587 F. Supp 1432 (4th Cir 1984) The cou[rt] stated in HAEC verba; counsel has an affirmative obligatio[n] to make further inquiry where Facts known, and Available or within minimal diligence accessible to defense counsel raise A reasonable to defense counsel Raise A Reasonable doub[t] As to the defendants Mental condition. If Reasonable grounds [exist] for questioning the sanity or competence of a defendant And [page is cut off].
Counsel was ineffective by advising his client (me) to plea to charges that prosecution Lacked evidence. The evidence was not sufficient to convict me. Counsel did not investigate this case at all which left his client in a situation of rec[ei]ving ineffective assistance from counsel. Counsel didnot object to indictments when he knew that prosecutions key witness stated she did not see his client but did see other person and Identified them in a Line up. Also A positive ID of client did not take place or a weapon at a crime scene or any other scene was never found.
Counsel was ineffective in failing to object to the indictments which, Indictments does not contain allege both assault and death and also time and place. Lacking the Language usually set forth in indictments for murder. Therefore, the sufficiency of the body of the indictments were not substantively sufficient to confer subject matter jurisdiction.
Counsel was ineffective by advi[s]ing client (me) to plead guilty to charges advising him he would get Lesser time if he pleaded to these charges. Also advising him if he pleaded guilty he would not rec[ei]ve a Life sentence if he plead guilty. Which his client rec[ei]ved a Life sentence anyway after taking this erroneous plea advice.
I argue my counsels strategy at sentencing hearing was not reasonable because it was nonexistent. Therefore den[y]ing me effective assistance. Counsel failed to investigate to any Length. Nor did counsel request a psychiatric examination. Counsel did not investigate clients ease at all subjecting client to Ineffective assistance of counsel. [Page is cut off]
Counsel was ineffective by failing to object to indictments of murder. Because on a General charge on elements of murder state must prove defendants presence at scene of crime beyond reasonable doubt. Counsel knew that key witness had testified that she could and had not picked defendant out in a Line up. Also witness stated
...
