Pennington v. StatePennington v. State
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- Toal
This appeal arises from the circuit court’s denial of a petition for writ of habeas corpus. We affirm.
Facts
In Dеcember 1989, Petitioner, George M. Pennington, was convicted of two counts of distribution of crack cocаine and sentenced to concurrent prison terms of twenty-five years. We affirmed the conviction on direсt appeal in State v. George M. Pennington, Op. No. 91-MO-176, filed June 25,1991.
Without filing an application for postconviction relief pursuant to
Petitioner did not file the application for postconviction relief and on January 13, 1993, the circuit court dismissed the petition for writ of habeas corpus with prejudice. Petitioner now appeals. 1
*438 Issues
The sole issue on appeal is whether the circuit court properly dismissed the Pеtitioner’s petition for writ of habeas corpus.
Law/Analysis
Petitioner, in his petition for writ of habeas corpus, raises a multitude of alleged constitutional violations, encompassing inter alia, ineffective assistance of counsel, unconstitutional sentence, prejudicial pretrial publicity, denial of documents required for appeal, false testimony by the prosecutor, a verdict against the weight of the evidence, and various other due process and equal protection violations. Petitioner argues that the trial court erred in dismissing the petitiоn without an evidentiary hearing.
South Carolina Code Ann.
The writ оf habeas corpus is still a statutory remedy provided for by
In Baskins v. Moore, 362 F. Supp. 187 (D.S.C. 1973), the District Court for South Carolina, whilе addressing the continued viability of the writ of habeas corpus, stated that even where:
petitioner’s claim is of the core of habeas, petitioner must exhaust either by way of the statutory procedural device — Section 17-601 et seq. [the predecessor statute to§ 17-27-20 ] — or, if Section 17-601 be deemed inadequate or ineffective, by way of writ of habeas corpus filed with the South Carolina Supreme Court.
Id. at 192 n. 5.
In Butler v. State, 302 S.C. 466, 397 S.E. (2d) 87 (1990), we *439 held that not every intervening decision or constitutional error will justify the issuance of a writ of habeas corpus. We stated that “the writ will issue only under cirсumstances where there has been a ‘violation, which, in the setting, constitutes a denial of fundamental fairness shocking tо the universal sense of justice.’ ” Id. at 468, 397 S.E. (2d) at 88 [emphasis in the original]. In deciding Butler, we relied on the New Jersey Superior Court decision in State v. Miller, 16 N.J. Super. 251, 84 A. (2d) 459 (1951), where the prosecutor’s failure to recommend a particular sentence in accordance with a plea agreement was an insufficient basis for habeas relief.
In Tyler v. State, 247 S.C. 34, 145 S.E. (2d) 434 (1965), we held that the writ of habeas corpus cannot be used as a substitute for appeal or other remedial procedure. Of course, a petitioner may still obtain a writ of habeas corpus from this Court, after exhausting all other sources of relief, “where there has been a violation which, in the setting, constitutes a denial of fundаmental fairness shocking to the universal sense of justice.” State v. Torrence, 305 S.C. 45, 69, 406, S.E. (2d) 315, 328 (1991) (Toal, A.J., concurring); Butler, supra.
In our most recent decision granting habeas relief, Slack v. State, — S.C. —, 429 S.E. (2d) 801 (1993), the petitioner had exhausted аll postconviction remedies prior to raising subject matter jurisdiction as an issue. In Butler, supra, the petitioner had alsо exhausted his postconviction remedies.
The District Court in Baskins, supra correctly stated the rule, and although not binding on this Court, the reasoning of the decision is persuasive. Petitioner has not filed an application for postconviction relief, and most, if not all 2 of the claims made in the present petition, are proper issues under the postсonviction relief statute. Noting the language of the footnote in our order of March 11, 1993, the postconviction relief statutes curtail the issuance of the writ. The curtailment, when read in light of Baskins, is merely the requirement to exhaust the avenues available under postconviction relief prior to the filing of a petition for habeаs corpus.
*440 Accordingly, we AFFIRM the circuit court’s dismissal of the petition for writ of habeas corpus.
Chandler, A.C.J., Finney аnd Moore, JJ., and Bruce Littlejohn, Acting Associate Justice, concur.
Notes
On February 9, 1993, the Office of Appellate Defense notified this Court that the appeal should be dismissed because the circuit court order, “merely dismisse(d) his habeas corpus petition which is not a viable action in this State.” App. p. 17. In an order dated March 11, 1993, this Court stаted that there was “no evidence counsel communicated with his client before seeking-dismissal of the aрpeal.” App. p. 19. This same order also provided that “[t]he availability of the writ has been curtailed, but not eliminated, by post-conviction relief.” App. p. 19 n. 1.
It is extremely difficult to imagine that any of Petitioner’s claims for relief would not rest in either “after discovered evidence” or “ineffective assistance of counsel.” Either of these claims can and should be properly addressed first in an application for postconviction relief.