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Graves v. McCall

United States District Court, D. South Carolina

December 2, 2014

Maurice Graves, #208580, Petitioner,
v.
Michael McCall, Respondent.

ORDER AND REPORT AND RECOMMENDATION

SHIVA V. HODGES, Magistrate Judge.

Petitioner Maurice Graves filed this pro se 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 Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 35, 36]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by July 17, 2014. [ECF No. 40]. On July 28, 2014, Petitioner filed a motion to amend his petition [ECF No. 49], which is fully briefed [ECF Nos. 57, 70]. Respondent filed a supplement to the return and motion for summary judgment on August 15, 2014. [ECF No. 58]. After multiple extensions, Petitioner filed a response to the motion for summary judgment [ECF No. 67], and Respondent filed a reply [ECF No. 74]. Petitioner supplemented his response to summary judgment [ECF No. 75], and then he requested an extension within which to file another sur-reply [ECF No. 79], which request the undersigned denied [ECF No. 77].

Upon review of the record in this case, the undersigned became concerned that the court lacked jurisdiction over the claims in this case because it did not appear that Petitioner was in custody on the convictions about which he was complaining. Therefore, the court directed Respondent to have the responsible records employee file an affidavit explaining Petitioner's custodial sentences according to official state records. [ECF No. 79]. Respondent complied with the court's order by reply dated November 20, 2014. [ECF No. 82]. Despite the voluminous filings in this case, the court does not reach the merits of Petitioner's claims because he is indeed not in custody on the convictions about which he complains; therefore, the court lacks subject matter jurisdiction. After having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted and Petitioner's motion to amend be denied as futile.

Petitioner has also filed two motions to stay [ECF Nos. 24, 50] and two motions for discovery [ECF Nos. 25, 51], which have also been fully briefed [ECF Nos. 37, 38, 55, 56, 62, 63, 68, 69]. The undersigned denies those motions as unsupported.

I. Factual and Procedural Background

Petitioner is currently incarcerated at the Lee Correctional Institution of the South Carolina Department of Corrections ("SCDC") pursuant to a life without parole ("LWOP") sentence imposed on November 19, 2003, after he was convicted in a trial for first degree burglary (2003-GS-43-159). [ECF Nos. 35-31; 82-1]. Petitioner does not challenge his present custody. Rather, Petitioner attempts to challenge a prior 1993 conviction. State court records show Petitioner pled guilty to voluntary manslaughter and strong arm robbery on December 13, 1993.[1] Petitioner was sentenced by the Honorable David F. McInnis, Circuit Court Judge, to 20 years on the charges. [ECF Nos. 35-2, 35-3 at 121-22]. Petitioner did not appeal the convictions or sentences.

On March 23, 1994, Petitioner filed an application for post-conviction relief ("PCR") (1994-CP-43-177), asserting claims of ineffective assistance of counsel, involuntarily plea, and violation of his constitutional rights. [ECF No. 35-4]. After an evidentiary hearing, the PCR court filed an order of dismissal on October 31, 1995. [ECF No. 35-6].

In 2000, Petitioner filed a second PCR application (2000-CP-43-186), asserting claims of ineffective assistance of trial and PCR counsel and involuntarily plea. [ECF No. 35-7]. After an evidentiary hearing on November 27, 2001, at which Petitioner informed the court of his desire to withdraw his application, the PCR court entered an order of dismissal on January 14, 2002. [ECF No. 35-9].

On November 18, 2005, Petitioner completed service of his sentence for the strong arm robbery conviction. [ECF No. 82-1]. On December 12, 2005, Petitioner completed service of his sentence for the voluntary manslaughter conviction. Id. Meanwhile, Petitioner remained in custody for his LWOP sentence on the first degree burglary conviction he received on November 19, 2003. Id.

On May 21, 2010, Petitioner filed a third PCR application (2010-CP-43-1088), asserting claims of ineffective assistance of counsel and requesting an Austin review of the denial of his first PCR hearing. [ECF No. 35-11]. The PCR court filed a Conditional Order of Dismissal on May 3, 2011. [ECF No. 35-13]. Petitioner responded to the Conditional Order of Dismissal in an objection [ECF No. 35-15] and motion to alter or amend judgment [ECF No. 35-16]. On August 8, 2011, the PCR court filed an Order of Dismissal. [ECF No. 35-17]. Petitioner submitted another motion to alter or amend judgment on August 22, 2011 [ECF No. 35-18]. On September 7, 2011, the PCR court filed an Amended Final Order of Dismissal. [ECF No. 35-20].

Petitioner filed a notice of appeal on September 29, 2011. [ECF No. 35-21]. In a letter dated October 24, 2011, the South Carolina Supreme Court requested Petitioner to provide an explanation as to why the denial of relief by the PCR court as successive and untimely was improper. [ECF No. 35-22]. Petitioner filed an explanation. [ECF No. 35-23]. By order entered February 8, 2012, the South Carolina Supreme Court dismissed the notice of appeal. [ECF No. 35-24]. The remittitur issued on February 24, 2012. [ECF No. 35-25]. On April 26, 2014, the South Carolina Supreme Court denied as untimely Petitioner's request for rehearing [ECF Nos. 35-26, 35-27].

On April 14, 2014, Petitioner filed a fourth PCR application (2014-CP-43-735), asserting claims of ineffective assistance of counsel. [ECF No. 35-28].

Petitioner filed this federal petition for a writ of habeas corpus on or ...


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