REPORT AND RECOMMENDATION Gregory Fitzgerald Young ("Petitioner") is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 13, 14. On January 3, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 15. Petitioner failed to respond. The court issued an order on March 1, 2019, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to the motion by March 15, 2019. ECF No. 18. On March 14, 2019, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 20. Respondent filed a Reply on March 21, 2019. ECF No. 21.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 14, be granted, and this Petition be denied.
Petitioner is currently incarcerated in the Perry Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the June 2014 and January 2015 terms of the Oconee County Grand Jury on two counts of criminal sexual conduct with a minor, first degree, (2014-GS-37-691, -692), and two counts of criminal sexual conduct with a minor, third degree (2015-GS-37-80, -81), App. 93-99.1 On January 15, 2015, Petitioner appeared before Judge Eugene C. Griffith, Jr., for a plea hearing. App. 1-17. Petitioner was represented by Attorney Suzanne E. Earle, and Solicitor Lindsey Simmons appeared on behalf of the State. Id. According to the facts presented by the solicitor, Petitioner, who was a friend of the victim's mother, was babysitting the nine-year old victim when he digitally penetrated her vagina and told her not to tell. App. 8. Petitioner waived presentment to the Oconee County grand jury of an indictment for criminal sexual conduct, second degree (2015-GS-37-880), and he entered a guilty plea to this charge. App. 2-3, 17. Judge Griffith sentenced Petitioner to 20 years. App. 17. Petitioner did not file a direct appeal. ECF No. 1 at 2.
Petitioner filed an application for Post-Conviction Relief ("PCR") on August 20, 2015. (2015-CP-37-628). App. 23-28. Petitioner asserted he was being held in custody unlawfully for: "(a) Ineffective Assistance of Counsel.; (b) Due process Violation-failure of allocution; and (c) Failure to file an Appeal- failure file motion sentence re-consideration." App. 23. Petitioner filed an Amended PCR Application alleging due process violations, ineffective assistance of counsel,involuntary plea, and subject matter jurisdiction claims. App. 33-35, 37-44. The State filed a Return on May 25, 2017. App. 50-55.
A motion hearing convened on June 27, 2017, before the Honorable Jocelyn J. Newman. App. 57-79. Petitioner was present and represented by Attorney Rodney W. Ritchey, and Assistant Attorney General, Lindsey A. McCallister, appeared on behalf of the State. See id. Petitioner and plea counsel Attorney Suzanne Earle appeared and testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on July 31, 2017, making the following findings of fact and conclusions of law:
This Court has had the opportunity to review the record in its entirety and has heard the testimony and arguments presented at the PCR hearing. This Court has further had the opportunity to observe each witness who testified at the hearing, and to closely pass upon their credibility. This Court has weighed the testimony accordingly. Set forth below are the relevant findings of fact and conclusion of law as required by S.C. Code Ann. Sec. 17-27-80 (2003).
Ineffective Assistance of Counsel
In a post-conviction relief action, the applicant bears the burden of proving the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). 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 process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington, 466 U.S. 668 (1984); Butler, 286 S.C. at 443, 334 S.E.2d at 814. The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. The courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689. Applicant must overcome this presumption in order to receive relief. Cherry v. State, 300 S.C. 115, 118, 386 S.E.2d 624, 625 (1989).
The reviewing court applies a two-pronged test in evaluating allegations of ineffective assistance of trial counsel. Id. at 117, 386 S.E.2d at 625. First, the applicant must prove that counsel's performance was deficient. Id. Under this prong, the court measures an attorney's performance by its reasonableness under professional norms." Id. (quoting Strickland v. Washington, 466 at 688). Second, counsel's deficient performance must have prejudiced the applicant such that "thereis a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. With respect to guilty plea counsel, 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. Hill v. Lockhart, 474 U.S. 52, 106 (1985).
In PCR cases, an applicant asserting a constitutional violation must frame the issue as one of ineffective assistance of counsel. Al-Shabazz v. State, 338 S.C. 354, 363-64, 527 S.E.2d 742, 747 (2000) (citations omitted). An applicant alleging his guilty plea was induced by ineffective assistance of counsel must prove counsel's advice was not "within the range of competence demanded of attorneys in criminal cases." Lockhart, 474 U.S. at 56. Further, "[t]hat a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing." McMann v. Richardson, 397 U.S. 759, 770 (1970). Rather, "whether a plea of guilty is unintelligent ... depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases." Id. at 771.
The record must establish the defendant had a full understanding of the consequences of his plea and the charges against him. Dalton v. State, 376 S.C. 130, 138, 654 S.E.2d 870, 874 (Ct. App. 2007) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). A defendant's knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and "may be accomplished by colloquy between the court and defendant, between the court and defendant's counsel, or both." Roddy v. State, 339 S.C. 29, 34, 528 S.E.2d 418, 421 (2000) (citing State v. Ray, 310 S.C. 431, 437, 427 S.E.2d 171, 174 (1993)). Further, "[a] guilty plea is a solemn, judicial admission of the truth of the charges" against the applicant; thus, an applicant's right to contest the validity of such a plea is usually foreclosed. Dalton, at 137-38, 654 S.E.2d at 874 (citing Blackledge v. Allison, 431 U.S. 63 (1977)). Therefore, admissions "made during a guilty plea should be considered conclusive unless [an applicant] presents valid reasons why he should be allowed to depart from the truth of his statements." Id. (citing Crawford v. United States, 519 F.2d 347 (4th Cir. 1975); Edmonds v. Lewis, 546 F.2d 566 (4th Cir. 1976)). "In considering an allegation on PCR that a guilty plea was based on inaccurate advice of counsel, the transcript of the guilty plea hearing will be considered to determine whether any possible error by counsel was cured by the information conveyed at the plea hearing." Id. at 138-39, 654 S.E.2d at 874 (citing Wolfe v. State, 326 S.C. 158, 165, 485 S.E.2d 367, 370 (1997)).
Applicant testified he felt Counsel should have arranged for a competency evaluation to be performed on him although he acknowledged he does not have a mental illness. Applicant testified he has difficulty with reading and writing andhas a hard time understanding. Applicant testified Counsel did not believe his version of events and refused to investigate Applicant's allegations that the victim was performing similar sexual acts with other children. Applicant further testified he was coerced into pleading guilty because Counsel told him at his bond hearing that he was facing a life sentence. Applicant further testified he did not want to plead guilty, but Counsel told him it was the best thing to do. Applicant testified he would have wanted a trial if Counsel had investigated his case. Finally, Applicant testified Counsel failed to file an appeal. Although Applicant admitted he never asked Counsel to do so, Applicant testified the judge at his bond hearing directed Counsel to file a PCR application on Applicant's behalf.
Counsel testified she has practiced law for approximately eighteen years, primarily focusing· on criminal work. Counsel testified she did not recall having a
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