Marsh v. Stevenson, C/A No. 5:15-04633-JMC-KDW
Decision Date | 22 February 2017 |
Docket Number | C/A No. 5:15-04633-JMC-KDW |
Court | U.S. District Court — District of South Carolina |
Parties | Eric Marsh, 354716, Petitioner, v. Warden Stevenson, Respondent. |
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 undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 50, be granted, and this Petition be denied.1
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:
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.
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
Ineffective Assistance of Counsel
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