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Beaton v. McCall

United States District Court, D. South Carolina

April 16, 2014

VINCENT J. BEATON, #196947, Petitioner,
v.
MICHAEL McCALL, Warden, Respondent.

REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

This is a pro se Petition for a writ of habeas corpus filed pursuant to 28 U.S.C. ยง 2254 on August 26, 2013.[1] On December 16, 2013, Petitioner filed a motion for summary judgment. The Respondent filed a return and motion for summary judgment on January 6, 2014. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on January 7, 2014, advising Petitioner of the importance of Respondent's motion and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case. Petitioner filed a memorandum in opposition to the Respondent's motion for summary judgment on February 11, 2014. This matter is now before the Court for disposition.[2]

Procedural History

Petitioner was indicted in June 2005 in Charleston County for murder. [Indictment No. 05-GS-10-3949]. (R.pp. 602-604). Petitioner was represented by Jason King, Esquire, and Karen Barker, Esquire, and after a trial by jury on January 29-31, 2007, was found guilty as charged.[3] (R.pp. 1-535). Petitioner was sentenced to forty (40) years imprisonment. (R.p. 552).

Petitioner filed a timely appeal in which he was represented by Robert M. Dudek, Deputy Chief Appellate Defender with the South Carolina Office of Appellate Defense. Petitioner's counsel filed an Anders[4] brief seeking to be relieved as counsel and raising the following issue in his direct appeal:

Whether the court erred by ruling that the probative value of testimony appellant was in possession of a.38 revolver a month before the incident in this case was not substantially outweighed by its danger of unfair prejudice, confusion of the issues, or misleading the jury under Rule 403, SCRE, since the jury was going to assume the possession of that weapon was illegal, and evidence of this bad act was therefore prejudicial?

See Court Docket No. 31-6, p. 4.

In his pro se response to the Anders brief, Petitioner also raised the following additional issues:

In this Final Brief Am be sure 4.30.2008 document is understood to the fullest. Double jeopardy is ground asking for sentence to be vacated. On November of 2006 a mistrial took place and January of 2007 a second trial took place Double Jeopardy. Judge instruct jury to come back with an unanimous decision at second trial.
I am asking for sentence to be vacated, do to violation of right double jeopardy. Summary judgment for $1, 000.000.00 per suit wrongful conviction and unfair treatment for me not to pursue judicial error and use of authority. I, Vincent Jerod Beaton 196947 plea this before the Courts accorden to my rights amend me by U.S. Constitution.

See Court Docket No. 31-8.

On February 24, 2009, the South Carolina Court of Appeals filed an opinion affirming the conviction and sentence. State v. Beaton, No. 2009-UP-097 (S.C.Ct.App. filed Feb. 24, 2009). See Court Docket No. 31-9. The Remittitur was sent down on March 12, 2009. See Court Docket No. 31-10. Petitioner apparently filed a motion for rehearing, which was deemed to be untimely. See Court Docket No. 31-11.

On October 19, 2009, Petitioner filed an Application for Post-Conviction Relief ("APCR") in state circuit court; Beaton v. State of South Carolina, 09-CP-10-6618; in which he raised the following issues:

1. Prosecutor's Misconduct "Faulty Warrant";
2. Faulty Indictment. "Failure of Competency Hearing";
3. Failure to Attend Preliminary Hearing; Identification Clause.

(R.p. 557).

On June 2, 2010, an evidentiary hearing was held on Petitioner's APCR at which Petitioner was present and represented by Charles T. Brooks, III, Esquire. (R.pp. 568-587). At the hearing, Petitioner raised the following additional issue:

Ineffective Assistance of Counsel for failure to get the trial set sooner. (R.pp. 572, 575-576, 589).

On June 21, 2010, the PCR court entered a written order denying the petition in its ...


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