Poe v. Stone

• Decision Date: 30 November 2015
• Docket Number: CIVIL ACTION NO. 9:15-588-RMG-BM
• Court: U.S. District Court — District of South Carolina
• Parties: RICHARD KEITH POE, #259297, Petitioner, v. WARDEN STONE, Respondent.

RICHARD KEITH POE, #259297, Petitioner, v. WARDEN STONE, Respondent.

CIVIL ACTION NO. 9:15-588-RMG-BM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

November 30, 2015

REPORT AND RECOMMENDATION

Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed pro se on February 7, 2015.¹

The Respondent filed a return and motion for summary judgment on August 17, 2015. As the Petitioner is proceeding pro se, a Roseboro order was filed on August 19, 2015, advising the Petitioner that he had thirty-four (34) days to file any material in opposition to the motion for summary judgment. Petitioner was specifically advised that if he failed to respond adequately, the motion for summary judgment may be granted, thereby ending his case. Petitioner thereafter filed responses in opposition on August 31, 2015 and September 10, 2015, with supplements filed on September 3, 2015, September 14, 2015, September 16, 2015, and September 17, 2015 .

This matter is now before the Court for disposition.²

Procedural History

Petitioner was indicted in York County in November 2012 for two counts of petit larceny [Indictment No. 12-GS-46-3769 & Indictment No. 12-GS-46-3770], burglary, first degree [Indictment No. 12-GS-46-3771³]; criminal conspiracy [Indictment No. 12-GS-46-3772]; obtaining goods under false pretenses [Indictment No. 12-GS-46-3 773⁴]; and breaking into a motor vehicle [Indictment No. 12-GS-46-3774]. See Respondent's Attachment 1. Petitioner was represented by Seon Cronin, Esquire. On June 4, 2013, Petitioner pled guilty to burglary, second degree (as a lesser included offense of first degree burglary), as well as to one count of enhanced petit larceny, and criminal conspiracy. (R.pp. 35-43). Petitioner was sentenced to thirteen (13) years imprisonment for burglary, second degree (as a lesser included offense of first degree burglary), ten (10) years imprisonment for petit larceny, and five (5) years for criminal conspiracy, all to run concurrently. (R.p. 50).

Petitioner filed a pro se notice of appeal, which was received by the South Carolina Supreme Court on June 7, 2013. See Respondent's Attachment 4. Subsequently,

[t]he Supreme Court transferred the appeal to the Court of Appeals for disposition. On November 6, 2013, [the Court of Appeals] sent a deficiency letter to attorney SeanFrancis Cronin, requesting a redacted copy of the sentencing sheet and a proof of service showing the notice of appeal was timely filed. Mr. Cronin never responded to the letter from the Court. [The South Carolina Court of Appeals] made several more attempts to get the necessary documents from Mr. Cronin by calling him on April 11, 2014, and on May 8, 2014. Mr. Cronin promised to send the necessary documents to the Court. [As of May 29, 2014, the Court of appeals had] not received any further correspondence from Mr. Cronin.

Accordingly, [the] appeal [was] dismissed for failure to show timely service of the notice of appeal in compliance with Rule 203(b)(2) of the South Carolina Appellate Court Rules (SCACR) and failure to file a copy of the order challenged on appeal as required by Rule 203 (d)(1)(B)(ii), SCACR.

See Respondent's Attachment 5 (Order of the South Carolina Court of Appeals filed May 29, 2014). The revised remittitur was issued on June 26, 2014. See Attachment 6 (Revised Remittitur) and Attachment 7 (Remittitur).

Petitioner subsequently filed a pro se notice of appeal dated June 29, 2014, which the Supreme Court of South Carolina construed as a petition for writ of certiorari. However, because the remittitur had already issued at that time, the Supreme Court held that there was no longer appellate jurisdiction over the case,⁵ and dismissed the writ of certiorari. See Respondent's Attachment 8 (Order dated July 1, 2014),

On July 3, 2013, Petitioner filed an application for post-conviction relief ("APCR") in state circuit court; Poe v. State of South Carolina, No. 2013-CP-46-2033; raising the following issues:

Ground One: Ineffective Assistance of Counsel.

Ground Two: Prejudice by 16^th Circuit Solicitor and or also by Judge Hayes and Judge Alfred.

(R.p. 54).

Petitioner subsequently amended his application on October 7, 2013, raising additional ineffective assistance of counsel claims. (R.pp. 90-102).

Petitioner was represented in his APCR by W. Michael Hemlepp, Esquire, and an evidentiary hearing was held on Petitioner's application on January 22, 2014. (R.pp. 103-169). In an order filed March 14, 2014 (dated March 6, 2014), the PCR judge denied relief on the APCR in its entirety. (R.pp. 175-183).

Petitioner filed a timely appeal of the PCR court's order. Petitioner was represented on appeal by Robert M. Dudek, Chief Appellate Defender of the South Carolina Office of Appellate Defense, who filed a Johnson⁶ petition requesting to be relieved and raising the following issue:

Was defense counsel ineffective for failing to convey to petitioner that the state had offered a negotiated sentence of five years imprisonment in exchange for his burglary plea since petitioner was ultimately sentenced to thirteen years imprisonment, and petitioner would have accepted the five year offer had it been relayed to him?

See Respondent's Attachment 10, Petition, p. 2.

Petitioner also filed a pro se response to the Johnson petition, in which he raised the following issues:

Ground One: From the very beginning Petitioner was prejudiced by his own defense counsel and Solicitor Shelton. Her, as stated in defense counsel's own words. See App 179. Counsel also stated, "In 'his opinion,' he did not see any winnable issues in this case." Furthermore, counsel testified in his own words, "I didn't see anyway that we could win." After being questioned, "Did he see any reason to challenge those indictments?" See App 149 '(18-19)."

Ground Two: Here, shown by Solicitor Shelton's statements, and actions, of the standard of 'unfair prejudice,' see App43 '(5-9).' Solicitor's statements were founded on 'ungrounded facts.' Further, See App 145 '(15-20).' Solicitor states, She, "wasgoing to 'make sure' that Poe did some time in jail." And She, "felt he was a danger to the community."

Ground Three: Furthermore, according to the 'Johnson's Petition For Writ for Certiorari," page 6," "Defense counsel testified that the solicitor insisted that Petitioner do some time because, "she felt like he was a danger to the community."

Ground Four: See App 146 '(3-5).' Sean F. Cronin testified at PCR hearing that, 'the five year offer was conveyed to him at the beginning of 2013 [?}. Furthermore, here, Solicitor Shelton on record June 14, 2013 states, See App 31 '(7-10).' "I reduced the offer to five years," "That was the plea offer," "I believe about a month ago."

The record clearly shows that defense counsel's verbal testimony does not coincide with Solicitor Misty Shelton's statement pertaining to plea offer of five years.

Ground Five: Counsel testified that there were an offer of five years as we got closer to trial and Poe rejected it. See App 146 '(3-5).' Then, on cross-examination, counsel testified, "I don't remember where I communicated that offer to Poe." The record clearly reflects Poe was never granted a bond and was not released from jail facility. See App 110 '(14-20).'

Ground Six: Here, Counsel testified he turned his attention to preparing for a trial. See App 146 '(6).' However, 'recap,' App. 179, Counsel stated, "I did not see any winnable issues in this case." See App 149 '(18-19),' further states, "I didn't see anyway that we could win." But, he states, he began preparing for trial.'

"Personal opinion of counsel has no place at trial." 'U.S. v. Bess,' C.A. 6 (Ky.) 1979, 593 F.2d 749, Criminal Law 2091.

Although not listed by the Respondent in its brief, Petitioner also asserted some additional claims as issues numbered 7-25 in the "legal argument" section of his brief, in which he discusses additional issues concerning ineffective assistance of counsel, purported trial errors, indictment issues, and alleged infirmities in his PCR proceedings. See Respondent's Attachment 13.

On January 23, 2015, the South Carolina Supreme Court denied Petitioner's writ of certiorari and granted counsel's request to be relieved. See Respondent's Attachment 15. The Remittitur was sent down on February 10, 2015, and filed with the Clerk's Office on February 12, 2015. See Respondent's Attachments 16 and 17.

In the interim, Petitioner had filed a second APCR on July 28, 2014 raising the following grounds:

New Evidence See: exhibits

Ground One: Ineffective Assistance of Counsel.

Ground Two: Insufficient Indictment.

Ground Three: Prejudice by Judges See: Attachments

See Respondent's Attachment 18, pp. 2-3.

After the State filed a motion to dismiss, the PCR judge entered a conditional order of dismissal on October 14, 2014. See Respondent's Attachments 19 and 20. Petitioner responded to the conditional order of dismissal in filings on October 14, 23, and 29, 2014; see Respondent's Attachment 21; and in an order filed January 26, 2015 (dated January 12, 2015), the PCR judge entered a final order of dismissal. See Respondent's Exhibit 22.

On March 9, 2015, Petitioner filed a pro se appeal of the denial of his second APCR. See Respondent's Exhibit 23. The South Carolina Supreme Court issued an order dismissing Petitioner's appeal on April 20, 2015. See Respondent's Exhibit 24. The Court issued its remittitur on May 20, 2015. See Respondent's Exhibit 25.

In the interim, Petitioner had filed a Third APCR on August 13, 2014, raising the following grounds:

Ground One: Ineffective Assistance of Counsel.

Ground Two: Prejudice and Bias by Judge Baxley Attachment.

See Respondent's Exhibit 26, p. 3.

After the State again filed a motion to dismiss, the PCR judge entered a conditional order of dismissaldated January 5, 2015. See Respondent's Exhibits 27 and 28. Petitioner filed an objection to the conditional order of dismissal...