McCullough v. Dodkin

• Decision Date: 08 January 2020
• Docket Number: C/A No.: 4:19-cv-0388-MGL-TER
• Parties: Chuck Edward McCullough, Petitioner, v. Warden G. Dodkin, Respondent.
• Court: U.S. District Court — District of South Carolina

Chuck Edward McCullough, Petitioner, v. Warden G. Dodkin, Respondent.

C/A No.: 4:19-cv-0388-MGL-TER

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

January 8, 2020

REPORT AND RECOMMENDATION

Petitioner, Chuck Edward McCullough (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254¹ on February 11, 2019. (Doc. #1). Respondent filed a motion for summary judgment along with a return and memorandum. (ECF #20 and #21). The undersigned issued an order filed June 6, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (ECF No. 22). Petitioner filed a response on July 3, 2019. (ECF No. 25).

PROCEDURAL HISTORY

The procedural history as set forth by the Respondent has not been disputed by the Petitioner. Therefore, the undersigned will set out the undisputed procedural history, in part, as set forth by the Respondent.

Petitioner is presently confined in the Livesay Correctional Institution of the South Carolina Department of Corrections pursuant to Orders of Commitment of the Clerk of Court for Spartanburg County. Petitioner was indicted at the May 2011 term of the Spartanburg County grand jury for possession with intent to distribute methamphetamine or cocaine base-3rd offense which was reduced to possession of methamphetamine. He was further indicted for manufacturing methamphetamine-third offense, and subsequently indicted at the May 2012 term of the Spartanburg County Grand Jury for unauthorized removal of a dead body, exposing a child to methamphetamine, and unlawful conduct toward a child. (ECF No. 20 at 1-2 of 40). He was represented by Richard Whelchel, Esquire and James Check, Esquire. On August 1, 2012, Petitioner entered a guilty plea pursuant to North Carolina v. Alford² ("Alford plea") before the Honorable J. Mark Hayes, II. Petitioner was sentenced by Judge Hayes to concurrent sentences of thirty years for manufacturing methaphetamine, ten years each on possession of methamphetamine and unlawful conduct toward a child, five years for exposing a child to methamphetamine, and sixty days for unauthorized removal of a dead body. Petitioner filed a motion to reconsider sentencing, and a hearing was held on May 23, 2013. After hearing argument, Judge Hayes denied the motion.

Direct Appeal

A timely notice of appeal was filed on Petitioner's behalf. On November 25, 2013, the South Carolina Court of Appeals dismissed the appeal for failure to provide an explanation of any issues to be addressed on appeal. The Remittitur was returned on December 12, 2013.

PCR Action

Petitioner filed an application for post-conviction relief (PCR) on December 16, 2013. In his PCR application, the Petitioner alleged he was being held in custody unlawfully for the following reasons:

a. Counsel failed to investigate,

b. Counsel failed to file a motion to suppress illegally seized evidence,

c. Counsel induced Applicant's guilty plea as a result of erroneous legal advice,

d. Counsel allowed his arguments to be influenced by law enforcement on the day of Applicant's plea,

e. Applicant did not have adequate time to prepare a response on day of plea.

(ECF No. 20-1 at 153 of 175).

The State filed its Return on or about August 18, 2014.

Petitioner was represented by Leah B. Moody, and amendments were made to the PCR application. The first set of amendments sought to seek relief on the basis of (1) prosecutorial misconduct; (2) Unconstitutional Sentence Enhancement; (3) Subject Matter Jurisdiction; and (4) Judicial Misconduct. The second notice of amendments set forth the following:

(1) Prosecutorial Misconduct in that the prosecutor abused his discretion by knowingly admitting evidence of the photo of the container that the child was transported in which was irrelevant to the drug charges.

(2) Ineffective Assistance of Counsel in that counsel failed to object to the admissibility of the photo of the child in the container, and counsel failed to get a ruling on said photo.

An evidentiary hearing into the matter was convened on January 13, 2016, before the Honorable R. Ferrell Cothran, Jr. An Order of Dismissal was entered on June 13, 2016, denying relief.

PCR appellate counsel, Taylor Gilliam, filed a Johnson petition for Writ of Certiorari raising the following issue:

Did the PCR Court err in holding that Petitioner's guilty plea was intelligently, voluntarily, and knowingly entered in light of the fact that the trial court incorrectly applied S.C. Code Ann. § 44-53-375, thereby preventing him from receiving a suspended sentence, probation, or parole?

Petitioner then raised the following grounds in his Pro Se response to the Johnson petition:

I. Did the PCR Court err in holding that petitioner's guilty plea was intelligently, voluntarily, and knowingly entered pursuant to Boykin v. Alabama 395 U.S. 238, 243-244 (1969)?

II. Did the PCR Court err in holding that Petitioner's prior drug offense for Possession Meth 1st in 2003 valid to use for enhancement purposes? Rendering Ineffective Assistance of Counsel?

III. Did the PCR court comply with S.C. Code Ann. 17-27-80 setting forth findings of fact and conclusions of law on each issue raised at the PCR hearing?

IV. Did PCR Counsel for Petitioner, prejudice Petitioner by failing to comply with request for 59(E) motion to preserve all issues raised at PCR hearing?

(ECF No. 20-6) (Errors in original). On October 10, 2018, the South Carolina Supreme Court denied the petition for a writ of certiorari. The Remittitur was issued on October 16, 2018, and filed with the Spartanburg County Clerk of Court on October 19, 2018. (ECF No. 20-10).

HABEAS ALLEGATIONS

Petitioner raised the following allegations in his petition, quoted verbatim:

GROUND ONE: Ineffective Assistance of PCR Counsel / PCR Counsel failed to file a 59E to preserve Petitioner's issues that was raised at the PCR hearing for review. . . Violation of 14th Amend.

GROUND TWO: Ineffective Assistance of Trial Counsel. Counsel failed to investigate Prior Record violating 6th.

GROUND THREE: Prosecutorial Misconduct/prosecutor vindictively used withdrawn evidence to bias the Judge by using the inadmissible evidence, making inappropriate statements in closing arguments violating the 5th Amend. and 14th Amend.

GROUND FOUR: PCR court did wrongfully apply Boykin v. Alabama in the "Order of Dismissal (page 9) that Petitioner intelligently, freely, voluntarily entered his Alford plea violating the 5th, 14th Amend.

(Petition, ECF No. 1)(errors in original).

STANDARD FOR SUMMARY JUDGMENT

The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed. R. Civ. P. 56(c).

The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4^th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4^th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4^th Cir. 1993).

To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any." Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4^th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4^th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

STANDARD OF REVIEW

In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the requirements set forth in 28 U.S.C. § 2254. Under § 2254(d),

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