McCleary v. Smith

• Decision Date: 27 July 2012
• Docket Number: Civil Action No. 6:11-2046-RBH -KFM
• Court: U.S. District Court — District of South Carolina
• Parties: Rodney McCleary, Petitioner, v. Warden Tessie Smith, Respondent.

Rodney McCleary, Petitioner,

v.Warden Tessie Smith, Respondent.

Civil Action No. 6:11-2046-RBH -KFM

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

Dated: July 27, 2012

REPORT OF MAGISTRATE JUDGE

The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2254.

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c) DSC, this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

BACKGROUND

The petitioner is confined in the Walden Correctional Institution, of the South Carolina Department of Corrections ("SCDC"), as the result of his Richland County conviction and sentence. The Richland County Grand Jury indicted him at the July 16, 2008, term of court for manufacturing marijuana over 100 plants. Rhodes Bailey represented him on this charge.

On March 18, 2009, the petitioner pled guilty to possession with intent to distribute ("PWID") marijuana, second offense, before the Honorable J. Michelle Childs. Judge Childs sentenced him to five years imprisonment.

The petitioner submitted a notice of appeal pro se on July 10, 2009, but he did not timely serve it on the State. On July 13, 2009, the Court of Appeals wrote him andindicated that he would have to provide a proof of service reflecting that he served the notice on the State. The petitioner's July 13, 2009, proof of service for the notice of appeal reflects that he served it upon the Clerk of Court and the trial judge.

The South Carolina Court of Appeals dismissed his appeal on July 17, 2009. The Order indicates that the notice of appeal was never filed because the petitioner had not served it on the State. The Court of Appeals sent the Remittitur to the Richland County Clerk of Court on August 4, 2009.

On November 9, 2010, the petitioner filed a pro se Post-Conviction Relief ("PCR") Application (10-CP-40-07865) alleging the following grounds for relief:

1. Ineffective assistance of counsel.

2. Guilty plea was not voluntary.

3. Court was without subject matter jurisdiction.

The State made its Return and Motion to Dismiss on February 16, 2011. The State argued that the application should be summarily dismissed because it was filed beyond the one-year statute of limitations that governs the filing of PCR actions. S.C. Code Ann. § 17-27-45(A) (Supp. 2011).

On March 15, 2011, the Honorable Alison Renee Lee filed a Conditional Order of Dismissal, in which she provisionally granted the State's motion to summarily dismiss the Application, but gave the petitioner 30 days from the date of service of the Conditional Order to show why the order should not become final. Judge Lee found that the PCR Application had to be filed by August 5, 2010. The petitioner's application was filed on November 9, 2010, three months past the statutory filing deadline.

The petitioner responded by filing a pro se document captioned "Objection to State's Conditional Order of Dismissal," which is dated February 23, 2011. In that document, he asserted:

The Applicant submits his objection to State's Conditional Order of Dismissal pursuant to the mandates that are set forth in Wilson v. State, 559 S.E.2d 581 (SC 2002). Because the Applicant's attorney, Rhodes Bailey, was ineffective for failing to file a Direct Appeal on behalf of the Applicant, forcing the Applicant to attempt to file an appeal pro se in which the Applicant's attempted appeal was denied because the applicant[,] being a layperson, did not know the proper procedure to follow in perfecting an appeal. The Applicant pled guilty on March 18, 2009, and was sentenced by Judge Michelle Childs to 5 years incarceration. By way of the sentencing sheet, Judge Childs deferred the Applicant's report date and instructed the Applicant to report to the Alvin S. Glenn Detention Center on July 10, 2009. At no time did the Applicant's attorney inform the Applicant of his constitutional right to appeal. The Applicant ultimately proceeded to attempt to file a Direct Appeal pro se, which the Applicant will support with an affidavit that shows that the Applicant attempted to file an appeal while he was out waiting to report to begin his sentence. The Applicant's daughter attempted to perfect an appeal by going to the public library in an attempt to file an appeal on behalf of her father. This can be supported by the fact that the forms are numbered Form 4 and Form 7. The law as it applies in Wilson v. State, 559 S.E.2d 581 (SC 2002), stipulates that the one-year limitations period in which to file a petition for post-conviction relief did not apply where the Defendant was denied a direct appeal of his conviction due to ineffective assistance of counsel. . . . The Supreme Court in [Wilson] stated that the trial court erred by summarily dismissing his PCR application based on his failure to file within the applicable statute of limitation as set forth in S.C. Code Ann. § 17-27-45(A). Also the State's return and COD reflects the State was fully aware that the Applicant's sentence start date was July 2, 2010, which put the Applicant well within the one year limitation[s] period. The State asserts the Application had to be filed by August 5, 2010. The Applicant submits that this is impossible because the Applicant had just begun servinghis sentence on July 2, 2010; therefore, under § 17-27-45(C), the Applicant had one year after July 2, 2010.

The petitioner also included another four page letter relying upon Wilson v. State, 559 S.E.2d 581 (S.C. 2002) and Roe v. Flores-Ortega, 458 U.S. 470 (2000), and making essentially the same argument.

On April 27, 2011, Judge Lee filed a Final Order, in which she dismissed the application with prejudice based upon the failure to comply with South Carolina Code Annotated § 17-27-45(A), the statute of limitations for filing a PCR Application. In the Final Order, she found:

This Court has reviewed the Applicant's response to the COD in its entirety, in conjunction with the original pleadings, and finds that a sufficient reason has not been shown why the Conditional Order of Dismissal should not become final.

This Court does however add the following additional findings:

It appears there may be some confusion as to the indictment/file number for the Applicant's offense. The clerk records reflect 2008-GS-40-04165. However, some of the appellate records cited in the COD and the Applicant's Reply to the COD refer to 2008-GS-40-04185. The correct docket number for Applicant's criminal case is 2008-GS-40-04165. All references to the other number is a scrivener's error.

The Applicant claims that because his sentence start date was delayed his Application was not untimely. This is incorrect, as stated in the COD, the relevant date is the date of the conviction and/or the Remittitur date. S.C. Code Ann. § 17-27-45(A).

Finally, this Court interprets the Applicant's filings to be an argument that he is entitled to a belated direct appeal "because of my attorney's (Bailey Rhodes) failure to advise me of myright to appeal ... " This Court finds that the Applicant has not put forth any genuine issue of material fact and this PCR is ripe for summary dismissal. The Applicant pled guilty, there is no requirement that plea counsel advise him of his right to appeal.

[T]he standard for a guilty plea differs. Absent extraordinary circumstances, such as when there is reason to think a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal) or when the defendant reasonably demonstrated an interest in appealing, there is no constitutional requirement that a defendant be informed of the right to a direct appeal from a guilty plea.

Turner v. State, 380 S.C. 223, 224, 670 S.E.2d 373, 374 (2008) (emphasis added).

(Final Order of Dismissal, pp. 11-13).

Judge Lee further found:

This Court makes the following final observation, in all his filings the Applicant has not argued that he timely requested plea counsel to file an appeal. Rather, the Applicant continues to assert that plea counsel failed to advise him of the right. Any attempt by the Applicant to modify his claim and argue that he did make a timely request to plea counsel to file an appeal will be viewed as a likely sham only created to thwart summary judgment. See Cothran v. Brown, 357 218, 592 S.E.2d 629, 633 (2004) (stating under the sham affidavit rule, a court may disregard a subsequent affidavit as a sham-as not creating an issue of fact for purposes of summary judgment-if the subsequent affidavit contradicts a party's own prior sworn statement).

(Final Order of Dismissal, p. 13).

The petitioner timely filed a notice of appeal and represented himself on certiorari. The Honorable Daniel E. Shearouse, Clerk of the Supreme Court of South Carolina, wrote the petitioner on June 3, 2011, and instructed him as follows:

As part of your explanation, you argue that you are entitled to a belated direct appeal and that such a claim is not subject to the statute of limitation under Wilson v. State, 348 S.C. 215, 559 S.E.2d 581(2002). Even if you ultimately prevail on this issue, the most you would receive would be a belated appeal from your guilty plea and in that appeal you would have to "provide a written explanation showing that there is an issue which can be reviewed on appeal. This explanation should identify the issue(s) to be raised on appeal and the factual basis for the issue(s) including how the issue(s) was raised below and the ruling of the lower court on that issue(s). If an issue was not raised to and ruled on by the lower court, the explanation shall include argument and citation to legal authority showing how this issue can be reviewed on appeal." Rule 203(d)(1)(B)(iv), SCACR (explanation required when an appeal is taken from a guilty plea, Alford plea, or plea of nolo contendere). Therefore, I ask that you

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