Turner v. Warden, Livesay Corr. Inst., Civil Action No. 6:11-2692-RBH-KFM

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtKevin F. McDonald
Decision Date27 July 2012
PartiesPhillip Eugene Turner, #242694, Petitioner, v. Warden, Livesay Correctional Institution, Respondent.
Docket NumberCivil Action No. 6:11-2692-RBH-KFM

Phillip Eugene Turner, #242694, Petitioner,
Warden, Livesay Correctional Institution, Respondent.

Civil Action No. 6:11-2692-RBH-KFM


Dated: July 27, 2012


The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2254.

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.


In Spartanburg County, South Carolina, on February 14 and 22, 2006, respectively, the petitioner sold .15 grams of crack and .23 grams of crack to an undercover officer for $20.00 each. Both transactions were captured on videotape. The undercover officer also identified the petitioner from a photographic lineup. At his guilty plea, the petitioner admitted he committed the crimes (App. 9-10, 18).

The petitioner was indicted in October 2006 on two counts of Distribution of Crack Cocaine and was represented by James Cheek and Richard Whelchel. The petitioner had two prior convictions for drug offenses at the time he was indicted. The petitioner pleaded guilty on October 31, 2006, before The Honorable J. Mark Hayes, II, Circuit Court Judge, to two counts of Distribution of Crack Cocaine, second offense. The

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petitioner was allowed to plead to second offenses based on a negotiated plea even though he had two prior convictions for drug offenses (App. 4). The petitioner also had a probation violation that was handled at the time of his plea (App. 10-11). The petitioner was sentenced to seven years concurrent on both indictments in keeping with the negotiated plea.1 The petitioner did not appeal his convictions or sentences. The petitioner is currently confined in the Livesay Correctional Institution in the South Carolina Department of Corrections ("SCDC") pursuant to orders of commitment of the Clerk of Court for Spartanburg County.


The petitioner filed a post-conviction relief ("PCR") action on March 8, 2007 (2007-CP-42-0876). An evidentiary hearing was convened before the Honorable Roger L. Couch, Circuit Court Judge ("the PCR court"), on November 5, 2007. At the evidentiary hearing, the petitioner knowingly and voluntarily withdrew all grounds of ineffective assistance except his claim that he was entitled to a belated direct appeal. The State stipulated that the petitioner was entitled to a belated direct appeal (App. 56-58). The PCR court issued an Order of Dismissal with Prejudice on January 14, 2008, dismissing all of the petitioner's grounds of ineffective assistance with prejudice and granting the petitioner's right to a belated direct appeal pursuant to White v. State, 208 S.E.2d 35 (1975). The Order of Dismissal was filed January 15, 2008 (Fed. habeas pet., attach. 13-16).2

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PCR Appeal/Belated Direct Appeal

On May 20, 2008, the petitioner appealed via a Petition for Writ of Certiorari in the South Carolina Supreme Court and raised his issue by filing a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The petitioner was represented in the direct appeal by Lanelle C. Durant of the South Carolina Office of Appellate Defense. In the Anders brief, the petitioner raised the following issue: "Did the trial court err in accepting appellant's guilty plea without insuring that his plea complied with the mandates of Boykin v. Alabama, 395 U.S. 238 (1969)?" (App. 105). Ms. Durant certified to the court that the appeal was without merit and asked to be relieved as counsel. On December 8, 2008, the South Carolina Supreme Court, in a published Opinion, reversed and remanded the matter to the circuit court for an evidentiary hearing with regard to whether the petitioner could show extraordinary circumstances that would require counsel to advise the petitioner of his right to direct appeal in keeping with Roe v. Flores-Ortega, 528 U.S. 470 (2000) and Weathers v. State, 459 S.E.2d 838 (S.C. 1995). In its Order, the Supreme Court also allowed the petitioner to raise any other allegations withdrawn at the original PCR hearing based on the State's agreement that the petitioner was entitled to a belated review of his direct appeal issues. See Turner v. State of South Carolina, 670 S.E.2d 373 (S.C. 2008). (App. 109-10). The Remittitur was issued December 30, 2008.

Remand to the PCR Court

Upon remand, an evidentiary hearing was held on April 6, 2009 (App. 60-87). Ken Shabel represented the petitioner, and Michelle Parsons Kelley of the South Carolina Attorney General's Office represented the respondent. At the hearing, the petitioner testified and so did his plea attorney, James Cheek. The petitioner again raised his claim that he was entitled to a belated direct appeal and other issues of ineffective assistance of counsel (App. 62-63). On November 4, 2009, the Honorable Roger L. Couch, Presiding Judge of the Seventh Judicial Circuit, issued an Order of Dismissal finding the petitioner's

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grounds for PCR as meritless, including his claim that he was entitled to a belated direct appeal (App. 89-93).

In the Order of Dismissal, the PCR court summarized the testimony and evidence presented at the PCR evidentiary hearing as follows: The petitioner testified at the PCR hearing. He testified he pleaded guilty, but did not get his desired direct appeal. On cross-examination, the petitioner admitted he waived presentment of the indictment charging him with selling drugs to an undercover officer. The petitioner also acknowledged he negotiated his plea for the seven year sentence. He admitted informing the plea judge he was satisfied with his attorney, had sufficient time to discuss the case with his attorney, understood he was waiving his right to trial, and was entering his plea freely and voluntarily (App. 90).

The petitioner's plea attorney also testified at the PCR evidentiary hearing. Counsel testified he discussed the option of a trial with the petitioner, but the State had overwhelming evidence. Attorney Cheek testified the petitioner faced up to 60 years imprisonment at trial. Counsel also explained the negotiated sentence with the petitioner, as well as his prior record, and the possibility of future sentence enhancement. Counsel testified he discussed an appeal with the petitioner and fully explained to the petitioner his right to appeal. Counsel also testified he advised the petitioner he had no real grounds for an appeal and that there was no need for an appeal considering the petitioner received a very favorable deal (App. 90).

In the Order of Dismissal, the PCR court pointed out that in a PCR action, the applicant bears the burden of proving the allegations in their application (App. 91 (citing Butler v. State, 334 S.E.2d 813 (S.C. 1985)). The PCR court also noted that where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that "counsel's conduct so undermined the proper functioning of the adversarial

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process that the trial cannot be relied upon as having produced a just result" (App. 91 (quoting Strickland v. Washington, 466 U.S. 668 (1984); Butler, 334 S.E.2d 813).

The PCR court noted the proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. The PCR court pointed out that courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment (App. 91 (citing Strickland, 466 U.S. 668). Further, the applicant must overcome this presumption in order to receive relief (App. 91 (citing Cherry v. State, 386 S.E.2d 624 (S.C. 1989)). The PCR court stated that a reviewing court applies a two-pronged test in evaluating allegations of ineffective assistance of plea counsel. First, the applicant must prove that counsel's performance was deficient. Under this prong, the court measures an attorney's performance by its "reasonableness under professional norms." Second, counsel's deficient performance must have prejudiced the applicant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (App. 91 (quoting Cherry, 386 S.E.2d at 625)). The PCR court also noted that with respect to guilty plea counsel, the applicant must show that there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial (App. 91 (citing Hill v. Lockhart, 474 U.S. 52 (1985)).

The PCR court noted it had reviewed the Clerk of Court records regarding the subject conviction, the petitioner's records from the SCDC, the application for PCR, the transcripts and documents from the prior proceedings, and the legal arguments of counsel. Pursuant to S.C. Code Ann. § 17-27-80 (1985), the PCR court made the following findings of fact based upon all of the probative...

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