Pride v. McFadden

• Decision Date: 30 June 2016
• Docket Number: Civil Action No.:2:15-cv-00590-HMH-MGB
• Court: U.S. District Court — District of South Carolina
• Parties: Christopher Lee Pride, #281240, Petitioner, v. Joseph McFadden, Warden, Respondent.

Christopher Lee Pride, #281240, Petitioner, v. Joseph McFadden, Warden, Respondent.

Civil Action No.:2:15-cv-00590-HMH-MGB

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

June 30, 2016

ORDER AND REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

The Petitioner, a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court upon Respondent's Motion for Summary Judgment (Dkt. No. 17; see also Dkt. No. 18) and Petitioner's Motion to Amend (Dkt. No. 21).

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this Magistrate Judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.

The Petitioner brought this habeas action on or about February 6, 2015. (See Dkt. No. 1-3 at 1 of 2.) On September 10, 2015, Respondent filed a Motion for Summary Judgment. (Dkt. No. 17; see also Dkt. No. 18.) By order filed September 10, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 19.) On September 21, 2015, Petitioner filed a Motion to Amend his Petition (Dkt. No. 21.) Respondent filed a Response in Opposition to the Motion to Amend on October 13, 2015. (Dkt. No. 22.) On or about December 1, 2015, Petitioner filed his Response in Opposition to the Motion for Summary Judgment. (Dkt. No. 30.) For the reasons set forth herein, Petitioner's Motion to Amend (Dkt. No. 21) is granted, and the undersigned recommends granting the Respondent's Motion for Summary Judgment (Dkt. No. 17).

PROCEDURAL HISTORY

The Petitioner is currently confined at Tyger River Correctional Institution of the South Carolina Department of Corrections. In June of 2003, the Union County Grand Jury indicted Petitioner for (a) Possession of Crack Cocaine with Intent to Distribute Within Proximity of a School, Public Park or Public Playground and (b) Possession of Crack Cocaine with Intent to Distribute. (R. at 108-11.) Although Petitioner originally retained Attorney Fletcher Smith to represent him, Mr. Smith was relieved as counsel of record. (See R. at 5.) Petitioner qualified for court appointed counsel, and William All, Esquire, was appointed to represent Petitioner. (See R. at 1-5.) The case was called for trial on October 13, 2004 before the Honorable John C. Hayes, III, but Petitioner failed to appear. (See R. at 1-4.) After some background explanation by Mr. All, the solicitor moved to try Petitioner in absentia. (R. at 1-9.) Mr. All moved to be relieved as counsel, and the court granted that motion. (R. at 10-11.) Judge Hayes also granted the solicitor's motion to try Petitioner in absentia. (R. at 8-17.) The jury trial took place on October 13, 2004, and the jury found Petitioner guilty as charged. (R. at 1-94.) Judge Hayes sentenced Petitioner but sealed the sentence until Petitioner was arrested. (See R. at 102.)

On January 18, 2005, Petitioner appeared before the Honorable G. Thomas Cooper, Jr. (R. at 95-106.) Mr. All was present at this hearing and was appointed so that he could perfect an appeal on Petitioner's behalf. (See R. at 103-05.) Judge Cooper read Judge Hayes' sentence. (R. at 105-06.) Petitioner was sentenced to fifteen years for Possession with Intent to Distribute Crack Cocaine in Proximity of a School and twenty-five years, concurrent, for Possession with Intent to Distribute Crack Cocaine, second offense. (R. at 105-06.)

Petitioner appealed and was represented by Robert M. Dudek, Esquire, and Fletcher N. Smith, Jr., Esquire. (See Dkt. No. 18-1 at 127 of 194.) On September 8, 2006, Petitioner raised the following issue in his Final Brief of Appellant:

Whether the court erred by relieving appellant's appointed counsel immediately before appellant's jury trial in his absence began since not "sufficiently cooperating" did not justify this drastic step, and the judge's ruling that appellant waived his right to counsel by his conduct was an abuse of discretion?

(Id. at 130 of 194.) On February 20, 2007, the South Carolina Court of Appeals issued a published opinion affirming Petitioner's convictions and sentences. See State v. Pride, 372 S.C. 443, 641 S.E.2d 921 (Ct. App. 2007). Petitioner filed a Petition for Rehearing, which was granted on July 2, 2007.

(See Dkt. No. 18-1 at 162 of 194.) On December 5, 2007, the South Carolina Court of Appeals withdrew the previously filed opinion and substituted a separate opinion affirming Petitioner's convictions and sentences. See State v. Pride, No. 2007-UP-554, 2007 WL 8400156 (S.C. Ct. App. Dec. 5, 2007). Petitioner filed a Petition for Rehearing and a Petition for Rehearing En Banc, both of which were denied by the South Carolina Court of Appeals. (Dkt. No. 18-1 at 176-77 of 194.)

On February 19, 2009, the Supreme Court of South Carolina granted the petition for writ of certiorari. (Dkt. No. 18-1 at 179 of 194.) However, on December 14, 2009, the Supreme Court of South Carolina dismissed the writ as improvidently granted. (Dkt. No. 18-1 at 180-81 of 194.) The matter was remitted to the lower court on December 30, 2009. (Dkt. No. 18-1 at 182 of 194.) Petitioner then appealed to the United States Supreme Court; the Court denied certiorari on June 21, 2010. (See Dkt. No. 18-1 at 183 of 194.)

Petitioner filed an application for post-conviction relief ("PCR") on August 23, 2011. (See Dkt. No. 18-1 at 184-89 of 194.) Therein, Petitioner contended, inter alia, that counsel was ineffective in "fail[ing] to communicate with client upon date of court," resulting in Petitioner being tried in absentia. (Dkt. No. 18-1 at 186 of 194.) Respondent filed a Motion to Dismiss, arguing the PCR application was barred by the statute of limitations. (Dkt. No. 18-1 at 191-94 of 194.) On January 4, 2012, Judge Alford signed a Conditional Order of Dismissal; Petitioner filed a Reply indicating that he believed he had one year from the date of Fletcher Smith's letter within which to timely file a PCR application.¹ (See Dkt. No. 18-2 at 2-7 of 120.) On December 3, 2012, Petitioner amended his PCR application to include the following specific allegations of ineffective assistance of counsel:

1. As to representation rendered by William All, Esquire:

a. Ineffective assistance of counsel for failure to effectively argue against trial in absence.

b. Ineffective assistance of counsel for failure to protect client's right to counsel during trial in absence.

c. Ineffective assistance of counsel for failure to file a Motion pursuant to Rule 29(a), SCRCrimP, following his reappointment during Applicant's sentencing hearing.

2. As to representation rendered by Fletcher Smith, Esquire:

a. Ineffective assistance of counsel for failure to act on guilty plea offer communicated to Applicant.

b. Ineffective assistance of counsel for failure to appear in court at trial or sentencing to address the existence of an attorney/client relationship with Applicant.

(Dkt. No. 18-2 at 9-10 of 120.)

On February 8, 2013, an evidentiary hearing was held before the Honorable Lee S. Alford. (See Dkt. No. 18-2 at 12-81 of 120.) Petitioner was present and represented by Tricia A. Blanchette, Esquire. (See Dkt. No. 18-2 at 12 of 120.) In an order filed on April 2, 2013, Judge Alford denied the application for post-conviction relief and dismissed the petition. (Dkt. No. 18-2 at 83-97 of 120.) Petitioner filed a Motion to Alter or Amend, and on April 25, 2013, an Amended Order of Dismissal was filed. (See Dkt. No. 18-2 at 99-119 of 120.) Also on April 25, 2013, Judge Alford's order "declin[ing] to further amend the Order in response to the Rule 59 motion" was filed. (See id. at 120 of 120.)

Petitioner appealed, and on January 22, 2014, through attorney Tricia A. Blanchette, he filed a Petition for Writ of Certiorari. (Dkt. No. 18-5.) Therein, Petitioner raised the following issues:

I. Whether the lower court erred in finding that counsel was not ineffective for failing to communicate and/or act on a plea offer of ten years and that Petitioner was not prejudiced as a result.

II. Whether the lower court erred in finding that counsel was not ineffective for failing to request a continuance and/or argue against Petitioner being tried in his absence.

III. Whether the lower court erred in finding that counsel was not ineffective for failing to make a motion for a new trial after his reappointment during Petitioner's sentencing hearing.

(Dkt. No. 18-5 at 3 of 22.)

In an order dated August 6, 2014, the South Carolina Supreme Court denied the petition for a writ of certiorari. (Dkt. No. 18-7.) Petitioner filed a Petition for Rehearing, which was denied by the South Carolina Supreme Court on October 23, 2014. (Dkt. No. 18-8; Dkt. No. 18-9.) The matter was remitted to the lower court on October 23, 2014. (Dkt. No. 18-10.)

On or about February 6, 2015, Petitioner filed the instant habeas petition, wherein he raised the following grounds for review (verbatim):

Ground One: Was Petitioner deprived of the guarantees and benefits of the Fifth, Sixth and Fourteenth Amendment rights where he was tried upon a state created indictment without benefit of trial counsel and/or a record demonstrating an intentional waiver and/or relinquishment of the right to counsel?

Ground Two: Was Petitioner afforded the full panoply of rights and benefits guaranteed to him under the Fifth, Sixth and Fourteenth Amendment where he was tried upon a state created indictment without benefit of notice, or a knowingly and intelligently [sic] waiver to be presented at a trial by jury?

Ground Three: Was trial counsel and/or public defender ineffective for failing to disclose a plea offer of 10-years, thereby, demonstrate a [sic] deficient performance which included a[] lesser-included offense, causing him to have imposed a harsher

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