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Gilliard v. Taylor

United States District Court, D. South Carolina

June 12, 2015

Karry Matthew Gilliard, #248415, Petitioner,
v.
Warden Taylor, Respondent.

REPORT AND RECOMMENDATION

SHIVA V. HODGES, Magistrate Judge.

Karry Matthew Gilliard ("Petitioner") is an inmate at the Ridgeland Correctional Institution of the South Carolina Department of Corrections ("SCDC") who 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 Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion to dismiss. [ECF No. 17]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by January 8, 2015. [ECF No. 18]. Petitioner filed a response on December 22, 2014. [ECF No. 21]. The matter having been fully briefed, it is ripe for disposition. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion to dismiss be granted.

I. Factual and Procedural Background

Petitioner was indicted for murder, burglary, and attempted murder. [ECF No. 1-2 at 2]. He was tried in March 1998 in the Charleston County Court of General Sessions and on March 18, 1998, the jury found Petitioner guilty of murder, first degree burglary, and assault of a high and aggravated nature ("AHAN"). [ECF Nos. 1 at 1; 1-2 at 2-3]. Petitioner was sentenced on March 19, 1998, to be

confined [on the murder conviction] for a mandatory term of 30 years, not less than 30 years. As to the high and aggravated nature assault sentence is - or 97-603, that you be confined to the State Department of Corrections for a term of ten years, that will be consecutive to the sentence just imposed for murder, so that's a total of 40 years to which you've been sentenced. As to the burglary in the first degree the sentence is 30 years, it's concurrent with the sentences imposed on 97-601 and 60 - excuse me, I am sorry, let's see. The sentence is 40 years concurrent with 97-601 and 603.

[ECF Nos. 1 at 1; 1-2 at 1]. Petitioner appealed his convictions and sentences to the South Carolina Supreme Court, and on appeal, Petitioner was represented by Robert M. Dudek, Esq., Assistant Appellate Defender, with the South Carolina Office of Appellate Defense. [ECF No. 1-2 at 2]. On September 25, 2000, the South Carolina Supreme Court filed an order reversing Petitioner's AHAN conviction. Id. at 2-3.[1] Petitioner filed this petition for writ of habeas corpus on July 3, 2014. [ECF No. 1].[2]

II. Discussion

A. Federal Habeas Issues

Petitioner now asserts he is entitled to a writ of habeas corpus on the following claims:

Ground One: State of South Carolina must vacate Petitioner's 40 year sentence since Supreme Court vacated 10 year assault of high & aggravated nature offense in Sept. of 2000.
Supporting Facts: The petitioner was sentenced on March 19, 2000, for Burglary First and Murder to Include: [Assault of a High and Aggravated Nature]. The sentence for both Murder and Burglary were 30 (thirty) years to be run concurrently. The 10 yrs for AHAN was Reversed.
Ground Two: The State of South Carolina has violated the law by making Petitioner Gilliard serve 40 years on a 30 year sentence.
Supporting Facts: See Attached Sheets.
Ground Three: The trial court lacked jurisdiction to maintain a 40 year sentence after 10 year for AHAN was reversed.
Supporting Facts: See attachments, please.
Ground Four: Petitioner, Gilliard was sentenced to two (2) concurrent 30 yr sentences for ...

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