United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, Magistrate Judge.
Petitioner, Joshua Dawn Manning ("Petitioner/Manning"), is an inmate in the custody of the South Carolina Department of Corrections (SCDC). Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 16, 2014. Respondent filed a motion for summary judgment on May 6, 2015, along with a return and supporting memorandum. The undersigned issued an order filed May 7, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to file a response. Petitioner failed to file a response.
RULE 41(B) DISMISSAL
A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.
Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
In the present case, the Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's motion for summary judgment or the court's orders requiring him to respond. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).
In the alternative, it is recommended that Respondent's motion for summary judgment be granted and this action be dismissed as barred by the statute of limitations. Therefore, the procedural history is set forth for reference purposes.
The procedural history as set forth by the Respondent in his memorandum has not been seriously disputed as Petitioner did not file a response. Therefore, the undersigned will set out the undisputed procedural history as set forth by the Respondent, in part.
The Petitioner is presently confined in the McCormick Correctional Institution of the South Carolina Department of Corrections pursuant to orders of commitment of the Cherokee County Clerk of Court. The Petitioner was indicted at the July 2008 term of the Cherokee County Grand Jury for burglary - 1st degree (08-GS-11-606), burglary - 2nd degree (08-GS-11-607), grand larceny (08-GS-11-608), kidnapping (08-GS-11-609), armed robbery (08-GS-11-610), and assault and battery of a high and aggravated nature (08-GS-11-668). App.p. 110-132. Petitioner was represented by Brendan Delaney, Esquire. On April 16, 2009, the Petitioner pleaded guilty as indicted to all charges. App.p. 3-45. Petitioner was sentenced by the Honorable J. Mark Hayes II to confinement for a period of sixty (60) years for burglary - 1st degree, thirty (30) years each for kidnapping and armed robbery, with the armed robbery sentence running consecutive to the kidnapping sentence, fifteen (15) years for burglary - 2nd degree, and ten (10) years each for grand larceny and assault and battery of a high and aggravated nature, with the grand larceny sentence running consecutive to the assault and battery of a high and aggravated nature sentence. All other sentences were to run concurrent. App.p. 44-45.
A timely Notice of Appeal was filed on Petitioner's behalf. App.p. 47. The Petitioner, through counsel Delaney made a response styled "Explanation of Appeal Pursuant to Rule 203(d)(1)(B) stating "there were no issues raised during the guilty plea; however the client insisted upon his right to appeal. "App.p. 48. The South Carolina Court of Appeals dismissed Petitioner's appeal by written order on May 29, 2009, for failure to identify any issue that is reviewable on appeal. App.p. 50. The Remittitur was sent on June 23, 2009. App.p. 51. PCR
Petitioner then filed an Application for Post-Conviction Relief (PCR) in Cherokee on January 27, 2010. App.p. 52-58. In the application, filed pro se, he alleged:
1. Ineffective Assistance of ...