Pettinato v. Eagleton, C.A. No. 2:05-1226 PMD RSC.

Citation466 F.Supp.2d 641
Decision Date21 September 2006
Docket NumberC.A. No. 2:05-1226 PMD RSC.
CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
PartiesMitchell J. PETTINATO, # 218405, Petitioner, v. Willie EAGLETON, Warden, Respondent.

Mitchell Pettinato, Bennettsville, SC, pro se.

Donald John Zelenka, S.C. Attorney General's Office, Columbia, S.C., for Respondent.

ORDER

DUFFY, District Judge.

This matter is before the court upon the United States Magistrate Judge's recommendation that Mitchell J. Pettinato's ("Pettinato") petition under 28 U.S.C. § 2254 be dismiss as untimely. The record includes a report and recommendation ("R & R") of the Magistrate Judge, which was made in accordance with 28 U.S.C. § 636(b)(1)(B). A petitioner may object, in writing, to an R & R within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). Petitioner filed timely objections to the R & R on July 8, 2004.

BACKGROUND

Pettinato is confined at the Kirkland Correctional Institution of the South Carolina Department of Corrections. In 1994, a Spartanburg County grand jury indicted Pettinato for murder and possession of a firearm during the commission of a violent crime. Attorney Don Thompson represented Pettinato at a jury trial before the Honorable J. Derham Cole on November 28, 1994. After the presentation of testimony but prior to final arguments, Pettinato withdrew his plea of not guilty and entered a plea of guilty but mentally ill. On November 30, 1994, Judge Cole sentenced Pettinato to life for murder and five years for possession of a firearm during the commission of a violent crime, to run concurrently. Pettinato did not appeal his guilty plea or sentence.

On February 22, 1995, Pettinato filed his first application for post-conviction relief ("PCR") in state court. (95-CP-42-379), wherein he alleged the following 21 grounds for relief:

1. Ineffective assistance of counsel;

2. Denied due process of law;

3. Denied the right to be fully heard;

4. Denied the right to cross examine the witnesses against me when such cross examination would have proven in most cases, that witnesses were committing perjury;

5. Although I cannot find anything in the law books regarding the behavior or the Judge and/or Prosecutor I do accuse the prosecution, acting improperly, if not plain unlawfully and using their positions to intimidate me, both while court was in session and in recess, this I believe denied me equal protection under the law;

6 Murder was an overcharge of the actual incident and correct charge should have been manslaughter;

7. Denied the right to speak while at my arraignment on charge of murder;

8. Defense did not adequately investigate my case nor did they subpoena evidence that I asked for;

9. I would like to challenge the validity have [sic] having the same punishment for someone found guilty in that guilty but mentally ill shows that a person is unable to conform to the law due to no fault of there [sic] own;

10. Failure to provide me with any warrants and/or indictments relating to the four gun charges;

11. Not advised of right to appeal;

12. Counsel failed to object to improper and false statements made by the prosecutor which prejudiced the jury;

13. Counsel failed to conduct a proper investigation both factual and legal, to determine if matters of defense could be developed, and to allow himself enough time for reflection and preparation for trial;

14. Counsel failed, after plaintiffs request to obtain or attempt to obtain a psychiatric evaluation by an independent psychiatrist where there was reasonable cause to believe that the report of the examining psychiatrist, who was employed by the State, was prepared for the prosecution's benefit and the evaluation was not properly conducted. Counsel should have known that plaintiff was entitled to an independent psychiatrist, under 18 U.S.C. § 3006A(c), who could supply expert services "necessary" to an adequate defense;

15. Counsel failed to move the court as to a reduced charge of voluntary manslaughter, while court was in session, although counsel claimed that he did, during recess, and the judge denied his request. This occurred just prior to guilty plea being entered;

16. Counsel gave erroneous advice when he told plaintiff that the court would only allow the jury to consider "not guilty," "guilty," and "guilty but mentally ill" as the only verdicts, and counsel should have known that "not guilty by reason of insanity" should have included or that plaintiff stood a good chance for a reversal on appeal 17. Counsel failed to request the charge on murder v. manslaughter required by State v. King;

18. Denied "due process of law"Plaintiff was denied "due process of law" as he was incompetent to stand trial and was not criminally responsible for his actions due to mental illness ...;

19. Abuse of discretion — it was "abuse of discretion" to allow plaintiff to stand trial for three gun charges that were brought to plaintiff's attention for the first time at his trial;

20. White v. State Review — Plaintiff is seeking, and believes he is entitled to a "White v. State Review" so he may raise his appealable issues, as Plaintiff did not knowingly and intelligently waive his right to direct appeal. Rule 227(6) Appellate Court Rules;

21. Plaintiff contends that he is being held in custody illegally as he is unable to legally plead guilty but mentally ill, and he cannot be held responsible for his actions when he wasn't fully aware of what he was doing an did not have sufficient internal controls over his actions to conform them to the requirements of law.

On March 20, 1996, the Honorable Paul M. Burch held an evidentiary hearing, at which Attorney Michael Duncan represented Pettinato. Pettinato testified on his own behalf and called his trial attorney to testify. Thereafter, on April 26, 1996, Judge Burch issued an order of dismissal, dismissing the application in its entirety. Following this dismissal, Pettinato filed a timely notice of appeal. On October 8, 1996, Pettinato's attorney, Lisa T. Gregory, filed a Johnson petition for a writ of certiorari and a petition to be relieved as counsel. By Order dated February 21, 1997, the. South Carolina Supreme Court denied the Johnson petition and granted counsel's request to withdraw.1

On August 4, 1997, Pettinato, proceeding pro se, filed his first federal habeas corpus petition. On November 3, 1997, Pettinato filed a motion to hold the matter in abeyance to allow him to file a second PCR action to allege, inter alia, ineffective assistance of counsel at the PCR hearing and on appeal. On March 26, 1998, then Magistrate Judge, now United States District Judge, Margaret B. Seymour denied Pettinato's motion to stay. Pettinato then moved, on May 4, 1998, to dismiss his habeas corpus petition without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. This court granted Pettinato's motion and dismissed the petition on September 29, 1998.

Meanwhile, on November 6, 1997, Pettinato filed his second PCR application in state court, alleging, inter alia, ineffective assistance of trial counsel, ineffective assistance of PCR counsel, ineffective assistance of appellate counsel, and involuntary guilty plea. The Honorable Lee S. Alford held an evidentiary hearing on March 28, 2000. On June 19, 2000, Judge Alford filed an order dismissing Pettinato's second PCR application, finding that the petition was barred as successive and that Pettinato failed to present evidence to support his claim that his PCR attorney was ineffective. On May 11, 2001, the South Carolina Supreme Court dismissed Pettinato's appeal without prejudice pending resolution of a Rule 59 motion. It appears from the record that the Rule 59 motion was not ruled upon and remains pending.

On May 26, 2000, Pettinato filed his second federal habeas corpus petition. On August 29, 2000, Pettinato again moved, for dismissal without prejudice. On September 25, 2000, this court granted Pettinato's motion.

Subsequently, on January 10, 2001, Pettinato filed his third PCR application, alleging ineffective assistance of trial counsel, involuntary guilty plea, violation of due process, and the state court's lack of subject matter jurisdiction over his criminal case. On September 3, 2003, the Honorable J. Michael Baxley held an evidentiary hearing, at which Attorney N. Douglass Brannon represented Pettinato. Thereafter, on November 3, 2003, Judge Baxley filed an order denying Pettinato's third PCR application as successive and time-barred.

On March 18, 2004, Pettinato's attorney, Aileen Clare, filed a Johnson petition for writ of certiorari and petition to be relieved as counsel. Pettinato filed a pro se brief on appeal. On February 3, 2005, the South Carolina Supreme Court entered its Order denying the petition for writ of certiorari and granting counsel's request to be relieved. The Remittitur was sent down on February 22, 2005.

Finally, on April 28, 2005, Pettinato filed the present habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging numerous grounds for relief.2 Pettinato amended his petition on June 27, 2005. Thereafter, on January 6, 2006, Respondent Willie Eagleton ("Respondent" or "Eagleton") filed a motion for summary judgment, wherein he argues that Pettinato's entire petition "is without merit and must be dismissed either on the merits for claims actually raised and decided in the initial PCR action in 1997 or procedurally barred if sought to be raised in either the 1998 or 2000 state PCR actions or are not cognizable in a federal habeas corpus action." (Mot. at 18.) Respondent only raises the issue of timeliness in his conclusion, where he asserts that any claim not raised in Pettinato's first PCR proceeding is procedurally barred or time-barred under S.C.Code Ann. § 17-27-45. (Mot. at 35.) Pettinato filed his response in opposition to the motion for summary judgment on March 8, 2006. Subsequently, on June 19, 2006, the...

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    ...of the belated appeal from the first PCR. Although not directly on point, the Honorable Patrick M. Duffy stated in Pettinato v. Eagleton, 466 F.Supp.2d 641 (D.S.C.2006) as In Austin v. State, the Supreme Court of South Carolina reversed the summary dismissal of a second PCR application and ......
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