Marsh v. Stevenson, C/A No. 5:15-04633-JMC-KDW

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtKaymani D. West United States Magistrate Judge
Decision Date22 February 2017
PartiesEric Marsh, 354716, Petitioner, v. Warden Stevenson, Respondent.
Docket NumberC/A No. 5:15-04633-JMC-KDW

Eric Marsh, 354716, Petitioner,
Warden Stevenson, Respondent.

C/A No. 5:15-04633-JMC-KDW


February 22, 2017


Eric Marsh ("Petitioner") is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Amended Return and Amended Motion for Summary Judgment. ECF Nos. 49, 50. On December 2, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 51. On December 13, 2016, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 54. Respondent filed a Reply on December 20, 2016, see ECF No. 55, and Petitioner filed a Sur-Reply on January 27, 2017, ECF No. 56. Having carefully considered the parties' submissions and the record in this case, the

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undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 50, be granted, and this Petition be denied.1

I. Background

Petitioner is currently incarcerated in the Broad River Correctional Institution ("BRCI") of the South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 2011, Petitioner was indicted at the May Term of the Richland County Grand Jury for Second-Degree Criminal Sexual Conduct ("CSC") with a Minor (2011-GS-40-01996). App. 122-232; ECF No. 19-19 at 2. Petitioner was also charged with second-degree CSC with a minor in Lexington County in April of 2013 (2013-GS-32-00965). ECF No. 19-19 at 1; ECF No. 19-20.3 On March 20, 2013, Petitioner waived venue and jurisdiction of the Lexington charge in order to plead guilty to both charges in Richland County, South Carolina. ECF No. 19-20 at 3. In the "Waiver of Venue and Jurisdiction," Petitioner attested to the following:

I have been advised that I have the legal right to have my case heard and tried in Lexington County, South Carolina, and I understand this right. But, I give up and waive this right.
I want to plead guilty in Richland County, South Carolina. This is my decision, and I know what I am doing. I have been advised, and I know that I cannot be forced or made to plead guilty in Richland County. I am the only person who can make this decision.

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It is my decision, and I ask the Judge to let me plead guilty in Richland County. I do not want to be tried or plead guilty in Lexington County. This is my decision and my choice and I understand what I am doing.

ECF No. 19-20 at 3. On March 20, 2013, Petitioner pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 37 (1970), to the two counts of second-degree CSC with a minor before the Honorable G. Thomas Cooper. App. 1-39. During his plea, Attorneys Theodore N. Lupton and Bennett E. Casto represented Petitioner, and Assistant Solicitors Margaret Fent Bodman and L. Suzanne Mayes appeared on behalf of the State. Id. Specifically, Assistant Solicitor Bodman represented the State on the Richland County charge, and Assistant Solicitor Mayes represented the State on the Lexington County charge. App. 3. Based on the State's recommendation, Judge Cooper sentenced Petitioner to 15-years imprisonment for both convictions to run concurrently. App. 38.

On March 22, 2013, Plea Counsel Lupton filed a Notice of Appeal on Petitioner's behalf. ECF No. 19-2. On April 1, 2013, Petitioner filed a pro se "Statement of Basis for Appeal from Guilty Plea Pursuant to Rule 203(d)(1)(B)." ECF No. 19-3. On June 5, 2013, the South Carolina Court of Appeals dismissed the Notice of Appeal because Petitioner "failed to provide a sufficient explanation as required by Rule 203(d)(1)(B)(iv) of the South Carolina Appellate Court Rules." ECF No. 19-4. On September 17, 2013, the South Carolina Court of Appeals issued a revised Remittitur. ECF No. 19-5.

II. Procedural History

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Petitioner filed an application for Post-Conviction Relief ("PCR") on October 18, 2013 (2013-CP-40-06380). App. 41-46.4 Petitioner asserted he was being held in custody unlawfully for violations of the 5th, 6th, and 14th Amendments to the U.S. Constitution. App. 42. Additionally, Petitioner alleged, verbatim: "Counsels fail to give effective assistance at critical stage of trial proceeding, including protecting my rights to due processing of law." Id. The State filed a Return on February 24, 2014. App. 47-51. On April 24, 2014, Anna Good, Esquire, filed an Amended Application for PCR on Petitioner's behalf. App. 52. There, Petitioner raised the following Ineffective Assistance of Counsel Claims: (a) trial counsel failed to properly investigate the case; and (b) trial counsel misadvised client as to sentencing for the plea. Id.

Thereafter a motions hearing convened on September 2, 2014, before the Honorable Robert E. Hood. App. 53-102. Petitioner was present and represented by Attorney Anna Good, and Assistant Attorney General Ashleigh Wilson appeared on behalf of the State. See id. Petitioner and Theodore Lupton, Petitioner's plea counsel, appeared and testified at the hearing. Id. After the hearing, the PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on October 20, 2014, making the following summaries of evidence and testimony, findings of fact, and conclusions of law:

This Court has had the opportunity to review the record in its entirety and has he[ard] testimony and arguments presented at the PCR hearing. This Court has further had opportunity to observe each witness who testified at the hearing, and to closely pass upon her credibility. This Court has weighed the testimony accordingly. Set forth below relevant findings of fact and conclusions of law as required by S.C. Code Ann. § [17-27-20] (2003).5

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Ineffective Assistance of Counsel
The Applicant alleges that he received ineffective assistance of counsel. In a post conviction relief action, the applicant has the burden of proving the allegations in the application. Rule 71.1(e), SCRCP; Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where ineffective assistance of counsel is alleged as a ground for relief, the applicant must prove that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington, 466 U.S. 668 (1984); Butler, 286 S.C. 441, 334 S.E.2d 813.

The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. The courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. 668. The applicant must overcome this presumption in order to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).

Courts use a two-pronged test to evaluate allegations of ineffective assistance of counsel. First, the applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its "reasonableness under professional norms." Id. at 117, 386 S.E.2d at 625 (citing Strickland, 466 U.S. 668). Second, counsel's deficient performance must have prejudiced the applicant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). When there has been a guilty plea, the applicant must prove that counsel's representation was below the standard of reasonableness and that, but for counsel's unprofessional errors, there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58 59 (1985); Roscoe v. State, 345 S.C. 16, 20, 546 S.E.2d 417, 419 (2001).

To be knowing and voluntary, a plea must be entered with a full understanding of the charges and the consequences of the plea. Boykin v. Alabama, 395 U.S. 238, 243-44 (1969); Dover v. State, 304 S.C. 433, 434, 405 S.E.2d 391, 392 (1991). When determining issues relating to guilty pleas, the court will consider the entire record, including the transcript of the guilty plea, and the evidence presented at the post-conviction relief hearing. Anderson v. State, 342 S.C. 54, 57, 535 S.E.2d 649, 657 (2000) (citing Harres v. Leeke, 282 S.C. 131, 318 S.E.2d 360 (1984)). When a defendant pleads guilty on the advice of counsel, the plea may only be attacked through a claim of ineffective assistance of counsel. Roscoe v. State, 345 S.C. 16, 20, 546 S.E.2d 417, 419 (2002) (citations omitted).

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This Court finds counsel is a criminal practitioner who has extensive experience in the trial of serious offenses. Counsel conferred with the Applicant on numerous occasions. During conferences with the Applicant, counsel discussed the pending charges, the elements of the charges and what the State was required to prove, the Applicant's constitutional rights, the Applicant's version of the facts, and possible defenses or lack thereof.

This Court also finds the Applicant's guilty plea was entered freely and voluntarily. The record reflects the Applicant was advised of the following by the Court during his guilty plea: his right to a jury trial (T. 7:8-15), his right to remain silent (T. 7:4-7), his right to confront his accusers (T, 7:16-8:12), and his right to appeal (T. 8:8-9, 20:20-25). The Applicant told the Court he had not been promised anything or threatened to get him to plead guilty. (T. 8:16-19). The Applicant also told the Court he was not under the

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