United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
MARY GORDON BAKER, Magistrate Judge.
The Petitioner, Michael Lee Montgomery, II, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment(Dkt. No. 12; see also Dkt. No. 11) and Petitioner's Motion for Hearing (Dkt. No. 17).
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.
The Petitioner brought the instant habeas action on June 4, 2015. ( See Dkt. No. 1.) On August 3, 2015, Respondent filed a Motion for Summary Judgment. (Dkt. No. 12; see also Dkt. No. 11.) By order filed August 4, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 13.) Petitioner filed a Response in Opposition to the Motion for Summary Judgment and Motion for Hearing on September 18, 2015. (Dkt. No. 17.)
In January of 2010, the Chester County Grand Jury indicted Petitioner for growing/manufacturing marijuana as well as possession with intent to distribute marijuana. (R. at 210-17.) Petitioner was represented at trial by Mark Grier, Esquire. ( See R. at 1.) Petitioner proceeded to a jury trial before the Honorable Doyet A. Early, III, on October 11-12, 2010. (R. at 1-176.) The jury convicted Petitioner on the charge of growing/manufacturing marijuana as well as the lesser included offense of possession of marijuana. (R. at 164-65.) Judge Early sentenced Petitioner to 54 months on the conviction for growing/manufacturing marijuana and thirty days, concurrent, on the conviction for possession of marijuana. (R. at 174.)
Petitioner appealed and was represented by Robert M. Pachak, Esquire, of the South Carolina Commission on Indigent Defense. ( See Dkt. No. 11-4.) In an Anders  brief filed on September 29, 2011, Petitioner raised the following issue:
Whether the trial court erred in failing to grant a mistrial after a police officer testified that they were able to make a prior marijuana purchase from appellant at the same location?
(Dkt. No. 11-4 at 4 of 10.) Mr. Pachak also filed a petition to be relieved as counsel. ( Id. at 8 of 10.) In an unpublished opinion filed on July 11, 2012, the South Carolina Court of Appeals dismissed the appeal and granted counsel's motion to be relieved. (Dkt. No. 11-5.) The remittitur was issued on July 27, 2012. (Dkt. No. 11-6.)
On November 15, 2011, Petitioner filed an application for post-conviction relief ("PCR"). (R. at 177-84.) The following questions and answers appeared in his PCR application:
10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) There were no witnesses in the court room. This is against the 6th Amendment.
(b) Marijuana was legalized in South Carolina in 1993 in § 12-21-5010 of the South ...