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Lathan v. Pate

United States District Court, D. South Carolina

June 22, 2015

Michael Lathan, Petitioner,
v.
Warden John Pate, Respondent.

REPORT AND RECOMMENDATION

PAIGE J. GOSSETT, Magistrate Judge.

Petitioner Michael Lathan, a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) 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), Lathan was advised 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.) Lathan filed a response in opposition to the respondent's motion. (ECF No. 15.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondent's motion for summary judgment should be granted and Lathan's Petition denied.

BACKGROUND

Lathan was indicted in May 2005 in Colleton County for armed robbery (2004-GS-15-122).[1] (App. at 907-08, ECF No. 11-7 at 204-05.) Lathan was represented by Everett W. Bennett, Jr., Esquire, and on November 7, 2005 was tried before a jury and found guilty as charged. The circuit court sentenced Lathan to twenty years' imprisonment. (App. at 790, ECF No. 11-7 at 87.)

Lathan timely appealed and was represented by Eleanor Duffy Cleary, Esquire, Appellate Defender, who filed an Anders[2] brief on Lathan's behalf that presented the following issue:

[T]he trial court erred in refusing to suppress Mr. Lathan's statement to police where the state failed to meet its burden of showing by a preponderance of the evidence that the confession was voluntary.

(App. at 795, ECF No. 11-7 at 92.) By order filed October 9, 2008, the South Carolina Court of Appeals dismissed Lathan's appeal. (State v. Lathan, Op. No. 08-UP-549 (S.C. Ct. App. Oct. 9, 2008); App. at 802-03, ECF No. 11-7 at 99-100.) The remittitur was issued on October 27, 2008. (ECF No. 11-9.)

Lathan filed a pro se application for post-conviction relief ("PCR") on December 1, 2008 in which he raised the following claims:

(a) Ineffective Assistance of Counsel 6th Amend. U.S. Const.
1. Ineffective assistance of counsel for failing to raise double jeopardy issue.
2. Ineffective assistance of counsel for failing to file motion for the Honorable Perry M. Buckner to disqualify, or recuse himself as trial judge of this case.
3. Ineffective assistance of counsel for failing to file proper motion in order to secure two (2) prior trial transcripts.
4. Counsel was ineffective by failing to object to knowingly false testimony of a State's witness.
5. Trial counsel rendered ineffective assistance in failing to introduce exculpatory evidence in behalf of applicant.
6. Trial counsel rendered constitutionally ineffective assistance by failing to file for Rule 5, SCR Crim. Proc., "discovery" and Brady materials when it was appropriate to do so on behalf of applicant.
7. Counsel rendered constitutionally ineffective assistance when he failed to object to the proffer and admission of identification evidence which violated the United States Supreme Courts' dictates held in Neil v. Biggers concerning tainted I.D. procedures. (See 93 S.Ct. 375)
8. Ineffective assistance of counsel by failing to fully advise applicant on right to testify.
9. Ineffective assistance of counsel by failing to thoroughly question applicant's witness on direct examination in order to fully develop the trial record for appellate purposes.
10. Ineffective assistance of counsel by failing to object to Judges' chamber meeting without the presence of the applicant.
11. Ineffective assistance of counsel for failing to make an on-record objection to the alleged "chamber meeting" without the presence of a court reporter in order to preserve claim and argument for appellate review.
12. Ineffective assistance of counsel for failing to object to inappropriate jury instruction.
13. Ineffective assistance of counsel for failing to make proper argument for distinction between ...

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