Suber 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

Raphael Suber, Appellant,

v.

State of South Carolina, Respondent.

Appeal From Greenville County

 Larry R. Patterson, Circuit Court Judge

Unpublished Opinion No. 2007-UP-327

Submitted June 1, 2007 – Filed June 18,
2007   

AFFIRMED

Raphael M. Suber, of Ridgeville, for Appellant.

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

PER CURIAM:  Raphael
Suber filed a habeas corpus petition in Greenville County.  The lower court
dismissed Suber’s petition, and this appeal follows.  We affirm.  

FACTS

Raphael Suber was indicted for possession
with intent to distribute crack cocaine within the proximity of a school,
trafficking crack cocaine, and possession of a weapon during the commission of
a violent crime.  Suber pled guilty to trafficking crack cocaine and possession
of a firearm during the commission of a violent crime and received concurrent
imprisonment terms of twenty five and five years respectively for the offenses. 

Suber
did not appeal his sentence but filed an application for post conviction relief
(PCR) in Greenville County.  In the application, Suber alleged ineffective
assistance of counsel and that his plea was not voluntary.  Following an
evidentiary hearing, the lower court dismissed Suber’s application.  Subsequently,
Suber appealed this dismissal by filing a writ of certiorari with the South
Carolina Supreme Court, which was denied.  Approximately three years later,
Suber filed a habeas corpus petition in a Greenville County court.  The lower
court dismissed the habeas petition.  This appeal follows.   

LAW/ANALYSIS

The function of a habeas
corpus writ is to test the legality of a prisoner’s imprisonment.  Gibson v.
State, 329 S.C. 37, 40, 495 S.E.2d 426, 427 (1998).  Habeas corpus is
obtainable only if other remedies, such as PCR, are inadequate or unavailable.  Id.  at 41, 495 S.E.2d at 428.  Any matter which is recognizable under
the Uniform Post Conviction Act[1] (the Act) must be raised in a PCR application and may not be raised in a habeas
petition.  Simpson v. State, 329 S.C. 43, 46, 495 S.E.2d 429, 431
(1998).   

Thus,
an individual is procedurally barred from relying on a habeas petition when the
matter alleged is such that it could have been raised in a PCR proceeding.  Keeler
v. Mauney, 330 S.C. 568, 571, 500 S.E.2d 123, 124 (Ct. App. 1998). 
Consequently, if an individual is procedurally barred, his or her only remedy
lies in filing the habeas petition with the South Carolina Supreme Court.  Id.

On appeal, Suber
states the lower court erred in denying habeas relief because his trial counsel
was ineffective.[2] 
However, ineffectiveness of counsel is an issue that can only be asserted in
proceedings under the Act.  State v. Kornahrens, 290 S.C. 281, 287, 350
S.E.2d 180, 184 (1986).  Therefore, Suber is procedurally barred from filing a
writ of habeas corpus in the lower court.

CONCLUSION

Accordingly,
the lower court’s decision is

AFFIRMED.[3] 

STILWELL,
SHORT, and WILLIAMS, JJ., concur. 

[1] S.C. Code Ann. §§ 17-27-10 to 17-27-160 (2003).

[2] As grounds for relief in his habeas petition to the
lower court, Suber argued the lower court lacked subject matter jurisdiction to
accept his guilty plea and ineffective assistance of counsel.  However, on
appeal Suber assigns error only to the ineffective assistance claim and does
not assert the subject matter claim.  Because the subject matter issue was not
appealed we do not address it.  State v. Baccus, 367 S.C. 41, 50, 625
S.E.2d 216, 221 (2006) (issues not argued in the briefs are deemed abandoned).

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