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2007-UP-327 - 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Unpublished Opinion No. 2007-UP-327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.