ORlGlNAL
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`IN THE COURT OF COMMON PLEAS
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`) ELEVENTH JUDICIAL CIRCUIT
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`STATE OF SOUTH CAROLINA
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`COUNTY OF LEXINGTON
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`Anne Louise Gordon,
`S.C.D.C. No. 323003
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`V'
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`State of South Carolina
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`Defendant.
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`2015-CP-32-1219
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`CONDITIONAL ORDER OF DISBflSSAL; -.
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`filed by Anne Louise Gordon (Applicant) on April 6, 2015 (“the Application"). Respondent
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`made its Return, requesting the Application be summarily dismissed.
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`I. PROCEDURAL HISTORY
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`Applicant is confined in the South Carolina Department of Corrections pursuant to orders
`of commitment of the Lexington County Clerk of Court. Applicant was indicted by the
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`Lexington County Grand Jury during the March 2006 term for the crimes of murder (2006-GS—
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`32—686), arson in the second degree (2006-GS-32-687), and armed robbery (2006-GS-32-688).
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`Applicant was subsequently indicted by the Lexington County Grand Jury during the June 2007
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`term for additional charges of murder (2007-6832-1984), arson inthe second'degree (2007-GS-
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`32-1989), and armed robbery (2007-6862-1985). Cameron B. Littlejohn, Esquire, and Joshua
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`Kendrick, Esquire, represented Applicant on the charges. On July 13, 2007, Applicant entered a
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`plea of guilty to the crimes as indicted before the Honorable William P. Keesley. On July 17,
`2007; the Honorable Edward B. Cottingham sentenced Applicant to a term of life imprisonment
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`without the possibility ofparole.
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`Page 1 of 8
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`Applicant filed a timely notice of appeal. Applicant was represented by Robert M.
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`Dudek, Esquire. By letter dated December 21, 2007, Applicant filed through comsel an aflidavit
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`indicating her desire to abandon her direct appeal. On January 14, 2008, the Court of Appeals
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`accordingly filed an order of dismissal and remittitur.
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`2008-CP-32-1 722
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`Applicant filed her first Application for Post-Conviction Relief on April 24, 2008 (2008-
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`CP-32-1722), alleging:
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`1.
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`2.
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`Inefl‘ective Assistance of Counsel
`a. Failure to pursue violation of right to speedy trial claim
`Involuntary Guilty Plea
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`Respondent made its return on or about September 11, 2008. An evidentiary hearing into the
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`matter was convened on May 18, 2010, before the Honorable Alexander S. Macaulay. Applicant
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`was present at the hearing and was represented by Joseph Epting Jr., Esquire. A. West Lee,
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`Esquire, of the South Carolina Attorney General’s Oflice, represented Respondent.
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`Judge
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`Macaulay denied and dismissed that application for PCR in an Order dated July 23, 2010.
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`Applicant filed a timely notice of appeal and a petition for writ ofoertiorari was perfected
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`by Wanda Carter, Esquire filing a brief pursuant to Johnsog v. State, 294 S.C. 310, 364 S.E.2d
`201 (1988). The South Carolina Supreme Court relegated the matter to the South Carolina Court
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`of Appeals, which granted counsel’s petition to be relieved and denied Applicant's petition by
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`unpublished opinion. Gordon v. State, S.C. Ct. App. Order dated Oct. 8, 2012. The Remittitur
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`issued on October 25, 2012.
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`Page 2 of8
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`1:13-2069-RMGaS‘VH
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`Applicant subsequently filed apro se Petition for Habeas Corpus under 28 U.S.C. § 2254
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`on July 23, 2013' (CA. No. 1:13-2069-GRA-SVH).
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`In her Petition, Applicant set forth the
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`following grounds for relief:
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`1. “I was not given a Speedy Trial Within 180 days after I requested one in
`writing to the Prosecution.
`I was denied Equal Protection guaranteed in the
`US. Constitution because South Carolina allows other defendants to receive a
`speedy trial within 180 days after the request on in writing pursuant to the
`Interstate Agreement on Detainer’s Act, S.C. Code Ann. § 17-11-10.
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`Respondent filed its Return and Motion for Summary Judgment on September 27, 2013. The
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`' Honorable Shiva V. Hodges, United States Magistrate Judge, issued on November 19, 2013 a
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`Report and Recommendation that Respondent’s motion for summary judgment be granted. The
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`Honorable Richard Mark Gergel, United States District Judge, accepted the Report and
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`Recommendation for summary judgment and denied Applicant’s Petition by Order dated
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`December 12, 2013. Gordon v. Warden of Graham Correctional Inst, No. 1:13-CV-2069-RMG,
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`2013 WL 6512640 (D.S.C. Dec. 12, 2013). Applicant did not appeal.
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`II. CURRENT APPLICATION
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`In her second and current post-conviction relief application, Applicant alleges she is
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`' being held unlawfully for the following reasons:
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`1.
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`“14‘“ Amendment U.S.C.A.”
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`a. “Denied right to a jury trial (Forced)”
`b. “Atty. Told me to plead guilty because I was present, codefendent [sic]
`statement implicating me as accomplice”
`2. “Entrapment | hearsay evidence"
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`3. “Actual [sic] innocent”
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`Applicant requests relief as follows:
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`‘ The exact date of service was disputed by the parties. but the dispute was immaterial to the Court's ruling.
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`Page 3 of 8
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`o
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`0
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`“A Fast and speedy jury trial”
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`“To use hypnosis as my defense”
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`Respondent incorporates the Lexington County Clerk of Court records, the final order of
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`Applicant's previous PCR with its appellate documents, the final order from the federal habeas
`corpus action, and therecords ofthis current PCR action.
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`111. FINDINGS OF FACT AND CONCLUSIONS OF LAW
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`Statute ofLimitations
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`The Court finds the Application must be summarily dismissed for failure to comply with
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`the filing procedures ofthe Uniform Post-Conviction Procedure Act. S.C. Code Ann. § 17-27-10
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`to -160. Specifically, the act requires as follows:
`An application for relief filed pursuant to this chapter must be filed within one
`year after the entry of a judgment of conviction or within one year after the
`sending ofthe remittitur to the lower court from an appeal or the filing ofthe final
`decision on appeal, whichever is later.
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`S.C. Code Ann. § 17-27-45(a).
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`The South Carolina Supreme Court has held that the statute of limitations shall apply to
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`all applications filed alter July 1, 1996. Pgloguin v. State, 321 S.C. 468, 469 S.E.2d 606 (1996).
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`A motion for summary judgment may properly be used to raise the defense of statute of
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`limitations. McDonnell v. Consolidated School District of Aiken, 315 S.C. 487, 445 S.E.2d 638
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`(1994).
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`In addition, S.C. Code Ann. § l7-27-70(c) authorizes the Court to “grant a motion by
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`either party for summary disposition of [an] application when it appears from the pleadings
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`that there is no genuine issue of material fact and the moving party is entitled to judgment as a
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`matter of law.”
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`The Applicant pled guilty on July 13, 2007 and the remittitur from direct appeals issued
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`on January 14, 2008. The current application was not filed until April 6, 2015 — well afier the
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`Page 4 of8
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`one-year statutory filing period expired.
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`Therefore,
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`the Application shall be summarily
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`dismissed as barred by the statute of limitations.
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`Successive
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`The Court also finds the Application must be Summarily dismissed because it is
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`successive to Applicant’s previous PCR application. Courts disfavor successive applications and
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`place the burden on applicants to establish that any new ground raised in a subsequent
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`application could not have been earlier raised in a previous application. Foxworth v. State, 275
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`SC. 615, 274 S.E.2d 415 (1981); Ar_nold v. State, 309 SC. 157, 420 S.E.2d 834 (1992). Section
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`17-27-90 of the South Carolina Code states:
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`All grounds for reliefavailable to an applicant under this chapter must be raised in
`his original, supplemental, or amended application. Any ground finally
`adjudicated or not so raised, or knowingly, voluntarily, and intelligently waived in
`the proceeding that resulted in the conviction or sentence or in any other
`proceeding the applicant has taken to secure relief, may not be the basis for a
`subsequent application, unless the court finds a ground for relief asserted which
`for sufficient reason was not asserted or was inadequately raised in the original,
`supplemental, or amended application.
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`Under this statute, successive post-conviction relief applications are forbidden unless an
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`applicant can indicate a “sufficient reason” why new grounds for relief were not raised or were
`not properly raised in previous applications. Aice v. State, 305 8.0. 448, 409 S.E.2d 392 (1991).
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`Any new ground raised in a subsequent application is limited to these grounds that “could not
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`have been raised
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`in the previous application.” L; at 450, 409 S.E.2d at 394. If the applicant
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`could have raised these allegations in a previous application, then the applicant may not raise
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`those grounds in successive applications.
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`151; Applicant bears the burden of showing the
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`allegations could not have been previously raised. Land v. State 274 SC. 243, 262 S.E.2d 73S
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`Page 5 of8
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`Applicant’s current allegations were or could have been raised in the proceedings based
`on Applicant’s prior applications for postsconviction relief; thus, the current application is
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`successive and barred under S.C. Code Ann. § 17-27-90. Applicant has failed to establish any
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`sufficient reason why she could not have raised her current allegations in her previous
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`applications for post-conviction relief. Therefore, she has failed to meet the burden imposed
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`upon her.
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`Thus, the Court shall summarily dismiss the Application as successive to Applicant’s
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`previous PCR application.
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`Res Judicata
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`The Court finds the Application is similarly barred by the doctrine of resjudicata. Res
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`judicata prohibits subsequent actions by the same parties on the same issues. Bell v. Benneg
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`307 S.C. 286, 414 S.E.2d 786 (Ct. App. 1992). A final judgment on the merits in a prior action
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`bars subsequent consideration of those issues in a new action. Eoran v. USAA Casualg Ins. Co.,
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`311 S.C. 189, 427 S.E.2d 918 (Ct, App. 1993). Resjudicata also bars any issues that could have
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`been raised in the former action. Li; see also Foxworth v. Sate, 275 S.C. 615, 274 S.E.2d 415
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`(1981).
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`'
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`The Applicant had a full opportunity to litigate all her allegations in her prior actions.
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`Applicant’s allegations with respect to the right to a speedy trial, the l4III Amendment to the
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`United States Constitution, and whether her guilty plea was knowing and voluntary were already
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`raised and considered in both her previous PCR and federal habeas corpus actions. The finality
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`of the previous Court rulings should be respected and the Com shall summarily dismiss the
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`Application as barred by the doctrine ofresjudicata.
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`Page 6 of 8
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`Actual Innocence Claims after a Guilty Plea
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`The Court further finds that Applicant’s allegations do not support a cognizable claim for
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`post-conviction relief under any of the statutory grounds. Absent a proper claim of newly
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`discovered evidence, a claim of actual innocence is not a valid post-conviction relief allegation,
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`especially where the Applicant pled guilty. The Applicant waived her right to raise irmocence as
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`a defense when she pled guilty and waived her right to a jury trial. Therefore, the plea waives
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`any non-jurisdictional defects and defenses, including challenges to the sufliciency of the ‘
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`evidence. Whet'sell v. State 276 S.C. 295, 277 S.E.2d 891 (1981); Rivers v. Strickland, 264 S.C.
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`121, 213 S.E.2d 97 (1975).
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`Insuflicient evidence of guilt is not a valid claim to overturn a guilty plea conviction.
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`“Where a defendant voluntarily, intelligently, and understandingly enters a plea of guilt, this
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`makes it unnecessary for the State to offer evidence to prove the offense charged in the warrant
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`or indictment.” State v. Allen, 261 S.C. 448, 451, 200 S.E.2d 684, 686 (1973). This is because
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`the guilty plea “admits all matter offact averments ofthe accusation.” 1a. The defendant admits
`all circumstances described in the indictment, leaving only sufficiency of the indictment for
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`review and waiving all other defenses. State v. Thomason, 341 S.C. 524, 526, 534 S.E.2d 708,
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`710 (2000). Additionally, PCR is not a proper avenue to challenge the sufficiency of evidence.
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`W, 264 S.C. 417, 215 S.E.2d 883 (1974); S.C. Code Ann. § 17-27-20(a)(6); see
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`also State v. Munsch, 287 S.C. 313, 314, 338 S.E.2d 329, 330 (1985) (quoting U.S. v. Rm, 488
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`U.S. 563, 569 (1989)) (“[W]hen the judgment of conviction upon a guilty plea has become final
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`and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the
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`underlying plea was both counseled and voluntary. If the answer is in the afiirmative then the
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`conviction and the plea, as a general rule, foreclose the collateral attack”)
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`Page 7 of8
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`For these reasons and pursuant to Rule 12(b)(6), SCRCP, the Court shall dismiss the
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`Application for failing to state a cognizable claim for which relief can be granted under the Post-
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`Conviction Relief Act.
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`CONCLUSION
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`Pursuant to S.C. Code Ann. § 17-27-70(b), the Comt intends to dismiss this Application
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`with prejudice unless Applicant provides specific reasons, factual or legal, why the Application
`should not be dismissed in its entirety. Applicant is granted twenty (20) days from the date of
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`service ofthis Order upon him to show why this Order should not become final. Applicant shall
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`file any reasons she may have with the Lexington County Clerk of Court and shall serve
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`opposing counsel at the following address:
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`Office ofthe Attorney General
`Johnny B. James, Jr., Esquire
`Post-Conviction Relief Division
`P.0. Box 11549
`Columbia, SC 29211
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`Applicant is cautioned that her response to this order must be actually received by the Lexington
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`County Clerk of Court and opposing counsel within twenty (20) days, and that the Court will not
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`consider any issues raised in her response if not so timely filed and served.
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`AND IT IS so ORDERED this 9 day of 6%:
`.2016.
`M”R.
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`ox MCMAHON
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`Presiding Judge
`Eleventh Judicial Circuit
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`flrgfl
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`, South Carolina
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`Page 8 of 8
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`FORM 4
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`STATE OF SOUTH CAROLINA
`JUDGMENT IN A CIVIL CASE
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`COUNTY OF LEXINGTON
`CASE NUMBER 2015CP3201219
`IN THE COURT OF COMMON PLEAS
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`State of South Carolina
`Anne Louise Gordon
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`#323003
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`Attorney for: I .,
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`I Self-Re -resented Liti _ant
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` Submitted b :
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`DISPO
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`SITION TYPE (CHECKNE)
`es have been tried and a verdict rendered.
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`curt. The issues have been tried or heard and a
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`[:1 JURY VERDICT. This action came before the court for a trial byjury. The issu
`DECISION BY THE COURT. This action came to trial or hearing before the c
`D decision rendered. [:1 see Page 2 fgr addiggnal infonngtign,
`[:1 ACTION DISMISSED (egg.CKREASON):
`[3 Rule 12(b), SCRCP;
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`E] Rule 43(k), SCRCP (Settled);
`D Other:
`1:] ACTION STRICICEN (CHECKmsom:
`E} Rule 400) SCRCP;
`E] Binding arbitration, subject to right to restore to confirm, vacate or
`modify arbitration award;
`[:1 DISPOSITION OF APPEAL TO THE CIRCUIT COURT (CHECK APPLICABLE BOX):
`[:1 Affirmed; , C] Reversed;
`I] Remanded;
`[Z] Other:
`________________.._.———-————-——-
`NOTE: ATTORNEYS ARE RESPONSIBLE FOR NOTIFYING LOWER COURT, TRIBUNAL. OR ADMMSTRATNE AGENCY OF THE
`CIRCUIT COURT RULING IN THIS APPEAL.
`IT IS ORDERED AND ADJUDGED: IE See attached order; (formal order to follow) 1:] Statement ofJudgment by the Court:
`ORDER INFORMATION
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`E] Rule 41(a), SCRCP (Vol. Nonsuit);
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`[1 Bankruptcy;
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`C] Other.
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`does not end the ease.
`This order [:1 ends
`Additional Information for the Clerk:
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`INFORMATION FOR THE JUDGMENT INDEX
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`Complete this section below when the judgment affects title to real or personal property or if any amount should be enrolled. If
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`there is no ud n ent information indicate “N/A” In one of the boxes below.
`Judgment in Favor of
`Judgment Against
`Judgment Amount To be Enrolled
`t nam 5 below
`' t nam : s below
`(LiSt amountis) WOW)
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`referenced in the order:
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`If applicable, describe the property, including tax map information and address,
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`The judgment information above has been provided by the submitting party. Disputes concerning the amOunts contained
`in this form may be addressed by way of motion pursuant to the SC Rules of Civil Procedure. Amounts to be computed
`such as interest or additional taxable costs not available at the time the form and final order are submitted to the judge
`may be provided to the clerk. Note: Title abstractors and researchers should refer to the official court order for
`judgment details.
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`____________________._———‘—'”2—°@—lfi-——
`Circuit Court Judge
`Judge Code
`Date
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`CPFORM4Cm
`SCCA SCRCP Form 40 (Revised 3/2013)
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`For Clerk of Court Office Use Only
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`Thisjudgment was entered on , and a copy mailed first class or placed in the appropriate at:
`of record or to parties (when appearing pro so) as follows:
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`omey’s box on July 20, 2016, to attorneys
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`Anne Louise Gordon #323003 Graham Correctional
`institution 4450 Broad River Road Columbia, SC 29210
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`ATTORNEY(S) FOR THE PLADITIFKS)
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`Johnny Ellis James Jr. PO Box 11549 Columbia, SC 29211
`___________________._————————-
`ATTORNEY(S) FOR THE DEFENDANT(S)
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`Beth A. Carrigg/kpk
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`_________'_____._—————-—
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`Beth A. Carrigg - Clerk of Court
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`Court Reporter
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`ADDITIONAL INFORMATION REGARDING DECISION BY THE C
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`OURT AS REFERENCED 0N PAGE 1.
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`This action came to trial or hearin
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`CPFORM4Cm
`SCCA SCRCP Form 4C (Revised 30.0 [3)
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