Ellerbe v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD
NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED
BY RULE 239(D)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Coleman Ellerbe,       
Appellant,

v.

State of South Carolina,       
Respondent.

Appeal From Marlboro County

J. Michael Baxley, Circuit Court Judge

Unpublished Opinion No. 2004-UP-644

Submitted December 1, 2004 – Filed December
21, 2004

AFFIRMED

Assistant Appellate Defender Robert M. Pachak, Office of Appellate
Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
Assistant Attorney General Christopher L. Newton, all of Columbia, for Respondent.

PER CURIAM:  Coleman Ellerbe appeals
the dismissal of his petition for a writ of habeas corpus, arguing that, since
his petition failed to expressly allege he exhausted all state administrative
remedies, the circuit court was required to treat the petition as an application
for post-conviction relief (PCR).  We affirm.
[1]

FACTS

In September 1988, Appellant pled
guilty to murder and was sentenced to life imprisonment.  In 1995, Appellant
filed an application for PCR.  Following a hearing in March 1996, the application
was dismissed.  In 1999, Appellant filed a petition for a writ of habeas corpus
in the circuit court, claiming his trial attorney induced him into pleading
guilty by promising him a reduction in his sentence due to the absence of a
prior criminal record. 

The circuit court dismissed Appellant’s
petition on two grounds. First, the court concluded that, because Appellant
failed to allege he had exhausted all available PCR remedies, the petition was
improper.  Second, the court found Appellant’s claims were cognizable
under the Uniform Post Conviction Procedure Act, S.C. Code Ann. §§ 17-27-10
to –120 (2003), and thus may not be raised in a petition for habeas corpus. 
This appeal followed.

LAW / ANALYSIS

Upon enactment in 1966, the Uniform Post
Conviction Procedure Act largely superseded and encompassed the habeas corpus
procedure provided by statute.  See S.C. Code Ann. §§ 17-27-10 to –120
(2003); Gibson v. State, 329 S.C. 37, 41, 495 S.E.2d 426, 428 (1998). 
Although habeas corpus continues to be available as a constitutional remedy,
it is available only when other remedies, such as PCR, are inadequate or unavailable. 
See S.C. Const. art. 1, § 18; Gibson, 329 S.C. at 41, 495 S.E.2d
at 428.  As such, “a matter which is cognizable under the Act may not be raised
by a petition for a writ of habeas corpus before the circuit or other lower
courts.”  Simpson v. State, 329 S.C. 43, 46, 495 S.E.2d 429, 431 (1998). 
Furthermore, the Act is “broadly inclusive and will rarely be inadequate or
unavailable to test the legality of [a] detention.”  Gibson, 329 S.C.
at 41, 495 S.E.2d at 428; see also Simpson, 329 S.C. at
45-47, 495 S.E.2d at 430-31.

Because Appellant’s petition alleges that
he was convicted in violation of the constitution, his claim is obviously cognizable
under the Act; thus, Appellant is procedurally barred from petitioning the circuit
court for a writ of habeas corpus.  See S.C. Code Ann. § 17-27-20(a)(1)
(2003); Keeler v. Mauney, 330 S.C. 568, 571, 500 S.E.2d 123, 124 (Ct.
App. 1998).  “If a person is procedurally barred, his only means of obtaining
state habeas corpus relief is to file a petition in the original jurisdiction
of the Supreme Court.”  Keeler, 330 S.C. at 571, 500 S.E.2d at 124. 
The trial court properly dismissed Appellant’s petition on this ground.

Appellant correctly asserts that if a
petition for a writ of habeas corpus fails to allege that PCR remedies are unavailable,
inadequate, or have previously been exhausted, the petition should be treated
as a PCR application.  Gibson, 329 S.C. at 42, 495 S.E.2d at 428.   In
his petition, Appellant mentioned, albeit vaguely, the dismissal of his previous
PCR application.  Thus, the trial court’s determination that Appellant had not
alleged exhaustion of available PCR remedies could be construed as an erroneous
finding.  However, as stated above, the trial court dismissed the petition on
proper grounds in its additional ruling.  Moreover, had the action been treated
as a PCR application, as Appellant now requests, it would have been similarly
dismissed as time barred pursuant to the PCR statute of limitations.  See
S.C. Code Ann. § 17-27-45(A) (2003).

For the foregoing reasons, the trial court’s
ruling is

AFFIRMED.

HEARN, CJ., GOOLSBY and WILLIAMS, JJ.,
concur.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.