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2005-UP-391 - Johnson 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

Randy Johnson, Appellant,

v.

State of South Carolina, Respondent.


Appeal From Laurens County
 Wyatt T. Saunders, Jr., Circuit Court Judge



Unpublished Opinion No.  2005-UP-391Submitted June 1, 2005 – Filed June 14, 2005


AFFIRMED


Assistant Appellate Defender Robert M. Pachak, 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 Adrianne L. Turner, all of Columbia, for Respondent.

PER CURIAM:  Randy Johnson appeals the dismissal of his petition for a writ of habeas corpus.  Johnson argues his petition for a writ of habeas corpus should be treated as an application for post-conviction relief so that he can pursue an appeal of his first PCR action under Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991). We affirm[1] pursuant to Rule 220(b)(2), SCACR and the following authorities: Aice v. State, 305 S.C. 448, 409 S.E.2d 392 (1991) (holding successive applications are disfavored and the burden is on the applicant to establish that any new ground raised in a subsequent application could not have been raised in a previous application); State v. Dunbar, 356 S.C. 138, 587 S.E.2d 691 (2003) (holding in order to preserve an issue for appellate review it must have been raised to and ruled upon by the trial judge).

AFFIRMED. [2]

GOOLSBY, HUFF, and KITTREDGE, JJ., concur.


[1]  Johnson’s appellate counsel filed a brief along with a petition to be relieved as counsel.  We grant counsel’s petition to be relieved.

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