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Brown v. McCall

United States District Court, D. South Carolina

May 13, 2014

Travis R. Brown, Petitioner,
v.
Warden McCall, Respondent.

REPORT AND RECOMMENDATION

PAIGE J. GOSSETT, Magistrate Judge.

The petitioner, Travis R. Brown ("Brown"), a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 10.) Pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), the court advised the petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 12.) Brown filed a response in opposition. (ECF No. 27.) Having carefully considered the parties' submissions and the record in this case, the court finds that the respondent's motion should be granted and Brown's Petition denied.

BACKGROUND

Brown was indicted in March 2003 in Greenwood County for murder and assault and battery with intent to kill (03-GS-34-514, -515). (App. at 454-57, ECF No. 11-3 at 204-07.) Brown was subsequently indicted in May 2003 for grand larceny (03-GS-34-678), and again in December 2004 for criminal conspiracy (04-GS-34-1290). (ECF No. 11-5.) Brown was represented by Wade Crow, Esquire, and Delton Powers, Esquire, and on December 13-15, 2004 was tried by a jury and found guilty as charged. (App. at 439, ECF No. 11-3 at 189.) The circuit court sentenced Brown to twenty years' imprisonment for assault and battery with intent to kill, ten years' imprisonment for grand larceny, five years' imprisonment for criminal conspiracy, and thirty consecutive years' imprisonment for murder. (App. at 451-52, ECF No. 11-3 at 201-02.)

Brown timely appealed and was represented by Robert M. Dudek, Esquire, who filed an Anders[1] brief on Brown's behalf that raised the following issue:

Whether the court erred by refusing to allow the introduction of a letter co-defendant Casey Gregg sent to appellant since Gregg admitted writing the letter, appellant was also familiar with Gregg's handwriting and he also identified the letter, since this letter was a statement against interest by Gregg, and appellant had the right to corroborate his testimony about Gregg threatening him, and to present a complete defense?

(ECF No. 11-7.) Brown filed a pro se response to the Anders brief that generally argued that he was denied his constitutional right to present a defense. (ECF No. 11-9.) On May 11, 2007, the South Carolina Court of Appeals dismissed Brown's appeal. (State v. Brown, Op. No 2007-UP-218 (S.C. Ct. App. May 11, 2007), ECF No. 11-10.) Brown filed a pro se petition for rehearing on June 22, 2007 (ECF No. 11-11), which the South Carolina Court of Appeals denied by order dated August 27, 2007 (ECF No. 11-12.) The remittitur was issued on October 3, 2007. (ECF No. 11-13.)

Brown filed a pro se application for post-conviction relief on May 19, 2008 ("2008 PCR") in which he raised the following claims:

(a) Ineffective Assistance of Trial Counsel; Trial counsel fail[ed] to object to improper comments;
(b) Applicant was denied his Sixth, Fifth, Fourteenth Amendment; Tr[ia]l counsel fail[ed] to call alibi witnesses;
(c) Prosecution Misconduct in Derailing Witnesses; The prosecution was leading the witnesses.

(Brown v. State of South Carolina, 08-CP-34-185, App. at 458-63, ECF No. 11-3 at 208-13.) On January 11, 2010, the PCR court held an evidentiary hearing at which Brown appeared and testified and was represented by Marlon E. Padgett, IV, Esquire. (App. at 465-82, ECF No. 11-3 at 215-32.) By order filed February 9, 2010, the PCR court denied and dismissed Brown's PCR application with prejudice. (App. at 483-89, ECF No. 11-3 at 233-39.)

Brown filed a second pro se application for post-conviction relief on June 14, 2010 ("2010 PCR") that raised the following issues:

(a) Ineffective Assistance of Post Conviction Relief (PCR) Attorney; PCR counsel fail[ed] to file ...

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