Rolen v. Stevenson, C/A No. 0:15-2045-BHH-PJG

• Decision Date: 19 January 2016
• Docket Number: C/A No. 0:15-2045-BHH-PJG
• Court: U.S. District Court — District of South Carolina
• Parties: Craig Shane Rolen, Petitioner, v. Warden Stevenson, Respondent.

Craig Shane Rolen, Petitioner, v. Warden Stevenson, Respondent.

C/A No. 0:15-2045-BHH-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

January 19, 2016

REPORT AND RECOMMENDATION

Petitioner Craig Shane Rolen, a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 10.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Rolen was advised of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 12.) Rolen filed a response in opposition to the respondent's motion. (ECF No. 21.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondent's motion for summary judgment should be granted and Rolen's Petition denied.

BACKGROUND

Rolen was indicted in November 2003 in Greenville County for murder (03-GS-23-8222). (App. at 267-68, ECF No. 11-1 at 269-70.) Rolen was represented by Everett P. Godfrey, Jr., Esquire, and on April 11, 2005 pled guilty as charged. (App. at 1-15, ECF No. 18-1 at 3-17.) The circuit court sentenced Rolen to twenty-five years' imprisonment. (App. at 14-15, ECF No. 11-1 at 16-17.) Rolen did not appeal his plea or sentence.

Rolen filed a pro se application for post-conviction relief on August 5, 2005 ("2005 PCR") in which he raised claims that his guilty plea was involuntary, and that counsel was ineffective for (1) not objecting to the sentence; (2) not objecting to Rolen's involuntary plea in court; (3) not contacting three alibi witnesses; and (4) not investigating. (See Rolen v. State of South Carolina, 05-CP-23-4930; App. at 17-22, ECF No. 11-1 at 19-24). The State filed a return. (App. at 26-30, ECF No. 11-1 at 28-32.) On April 19, 2006, the PCR court held an evidentiary hearing at which Rolen appeared and testified and was represented by Caroline Horlbeck, Esquire. By order filed July 14, 2006 the PCR court denied and dismissed with prejudice Rolen's 2005 PCR application. (App. at 254-63, ECF No. 11-1 at 256-65.)

On appeal, Rolen was represented by Wanda H. Carter, Esquire, Deputy Chief Attorney with the South Carolina Commission on Indigent Defense, who filed a Johnson¹ petition for a writ of certiorari that presented the following issues:

1. Trial counsel erred in failing to move for the withdrawal of the plea or in the alternate to have the plea vacated after petitioner asserted his innocence during the plea proceedings.

2. The PCR court erred in denying petitioner's allegation that he did not voluntarily waive his right to a direct appeal in the case.

(ECF No. 11-3.) By order issued December 18, 2007, the South Carolina Supreme Court directed the parties to address the following questions:

1. Was counsel ineffective in failing to move to withdraw petitioner's guilty plea after petitioner repeatedly asserted his innocence after the plea was accepted but before petitioner was sentenced?

2. Was counsel ineffective in failing to advise petitioner that he had a right to a direct appeal after petitioner repeatedly asserted his innocence during the guilty plea?

(ECF No. 11-4.) Counsel for Rolen filed a petition for a writ of certiorari on January 17, 2008 (ECF No. 11-5), and the State filed a return (ECF No. 11-6). The South Carolina Supreme Court granted the petition for a writ of certiorari on March 20, 2008 and directed the parties to file briefs. (ECF No. 11-7; see also ECF Nos. 11-8 & 11-9.) By order filed June 29, 2009, the South Carolina Supreme Court reversed the PCR court's order, and remanded the case "to the point after formal acceptance of the guilty plea." (ECF No. 11-10 at 7.) Additionally, the court stated that "[i]f the plea court grants the motion to withdraw the plea, the case shall be placed on the trial docket and proceed in the usual manner; if the court denies the motion to withdraw the plea, the prior sentence will stand, and Petitioner may pursue his right to a direct appeal." (Id.) The State file a petition for rehearing (ECF No. 11-11), which was denied by order filed October 21, 2009 (ECF No. 11-12). The remittitur was issued on October 21, 2009. (ECF No. 11-13.)

The circuit court held a hearing on April 5, 2010, at which time counsel for Rolen moved to withdraw Rolen's guilty plea. (ECF No. 11-14 at 19-33.) By order issued June 3, 2010, the circuit court denied Rolen's motion. (ECF No. 11-14 at 35.)

Rolen timely appealed and was represented by LaNelle Cantey DuRant, Esquire, Appellate Defender with the South Carolina Commission on Indigent Defense, who filed a brief on Rolen's behalf that raised the following issue:

Did the circuit court err in denying Rolen's motion to withdraw his guilty plea when he denied his guilt; explained that he confessed only because he was depressed and suicidal over losing his children; and he provided three names of alibi witnesses. The court's ruling on remand, consonant with the state's argument that the state would be prejudiced because the case was too old to find witnesses, was prejudicial to Rolen and not in keeping with the purpose of the remand as directed by the Supreme Court in Rolen v. State, 384 S.C. 409, 683 S.E.2d 471 (2009)?

(ECF No. 11-16.) On February 29, 2012, the South Carolina Court of Appeals affirmed Rolen's conviction. (State v. Rolen, Op. No. 2012-UP-085 (S.C. Ct. App. Feb. 29, 2012), ECF No. 11-18.) The remittitur was issued on March 16, 2012. (ECF No. 11-19.)

Rolen filed a pro se application for post-conviction relief on April 5, 2012 ("2012 PCR") in which he raised the following claims:

I gave INV Wesley Smith a false confession to a murder I knew nothing about, then I let Att Bill Godfrey talk me in to a plea because he wasn't paid enough to do my trial. I'm innocent. At the plea I told the family of the victim the truth, I didn't do it. My lawyer failed to make motion to withdraw at plea. He failed again at motion hearing when new issue was raised. My lawyer, Bill Godfrey failed to object to new issue raised by solicitor Kris Hodge at Motion hearing, held in April, 2010. She said the case was too old to go to trial. That was going against the Supreme Court ruling. Opinion # 26678.

(See Rolen v. State of South Carolina, 12-CP-23-2385, ECF No. 11-20) (errors in original). The State filed a return and motion to dismiss. (ECF No. 11-14 at 47-52.) On February 19, 2014, the PCR court held an evidentiary hearing at which Rolen appeared and testified and was represented by Mills Ariail, Esquire. By order filed March 25, 2014 the PCR court denied and dismissed with prejudice Rolen's 2012 PCR application. (ECF No. 11-14 at 77-83.)

On appeal, Rolen was represented by Kathrine H. Hudgins, Esquire, Appellate Defender with the South Carolina Commission on Indigent Defense, who filed a Johnson² petition for a writ of certiorari that presented the following issue:

Did the PCR judge err in refusing to find counsel ineffective when, the South Carolina Supreme Court found counsel ineffective for failing to move to withdraw the guilty plea and remanded to the trial court to allow Petitioner to move to withdraw the guilty plea, and during the motion to withdraw the guilty plea, which was denied by the plea judge, the same counsel, already found to have been ineffective, represented Petitioner again and failed to object when the assistant solicitor argued that the State would be severely prejudiced if the motion to withdraw the guilty plea was granted?

(ECF No. 11-22.) Rolen filed a pro se response to the Johnson petition in which he stated as follows:

When I was taken back to Greenville to make this motion, I was told by Bill Godfrey, that Solicitor Kris Hodge sent him to represent me. I did not want him to. . . . If it were this courts ruling to go back like it was 2005, same solicitor, same judge, same lawyer. Then wasn't it wrong for Bill Godfrey not to object to solicitors new issue she raised at the motion heaing that the case was too old to try. This was in April, 2010. . . .

Bill Godfrey has failed to speak up twice and it has severley cost me. Please look at all this closely. I spoke up at my plea hearing because I'm innocent. I gave a false confession. That's why I spoke up. Attorney Bill Godfrey had me scared I was gonna get a life sentence.

(ECF No. 11-24 at 1-2) (internal citations omitted, errors in original). On February 4, 2015, the South Carolina Supreme Court issued an order denying Rolen's petition for a writ of certiorari.

(ECF No. 11-25.) The remittitur was issued on February 20, 2015. (ECF No. 11-26.) This action followed.

FEDERAL HABEAS ISSUES

Rolen's federal Petition for a writ of habeas corpus raises the following issues:

Ground One: The Plea judge abused his discretion in denying petitioner's Motion to withdraw guilty plea

Ground Two: Ineffective Assistance of Counsel

Supporting Facts: Trial counsel was ineffective for failing to object to what the Solicitor said at the motion hearing on remand. . . .

Ground Three: Ineffective Assistance of Counsel failure to investigate and prepare for trial

Supporting Facts: Trial Counsel was not diligent when it came to him locating petitioner's alibi witnesses and using their testimony to prepare a defense. These alibi witnesses could have played a bit part in petitioner's defense to help prove he was innocent.

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

DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials...