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Addis v. Warden of Allendale Correctional Institution

United States District Court, D. South Carolina

January 11, 2016

Lewis William Addis, Jr., # 095373, Petitioner,
v.
Warden of Allendale Correctional Institution, [1] Respondent.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, Magistrate Judge.

         Lewis William Addis, Jr. ("Petitioner"), is an inmate at the Allendale Correctional Institution of the South Carolina Department of Corrections who 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. 12, 13]. 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 9, 2015. [ECF No. 14]. Petitioner failed to respond. The court issued an order on July 14, 2015, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to Respondent's motion by July 28, 2015. [ECF No. 16]. Petitioner filed a response on July 28, 2015. [ECF No. 18].[2]

         Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted.

         I. Factual and Procedural Background

         According to the guilty plea colloquy, on September 9, Petitioner and a codefendant broke a rear window and entered the house of Carolyn Fant ("Victim"). [ECF No. 12-1 at 15]. Victim was in the hospital after having fallen. Id. A handgun and other items belonging to Victim were reported missing. Id. Petitioner's codefendant gave a statement implicating Petitioner in the case. Id. Petitioner confessed to having participated in the burglary, and admitted to stealing prescription drugs. Id. Petitioner did not say he stole a handgun or other items. Id. at 15-16.

         Petitioner was indicted by the Richland County grand jury in July 2010 for burglary, first degree (2010-GS-40-875) and petit larceny (2010-GS-40-876). Id. at 116-19. Petitioner was represented by Jennifer C. Davis, Esq. and pled guilty on April 14, 2011, before the Honorable James R. Barber, III, Circuit Court Judge. Id. at 3-17. Sentencing was deferred until May 24, 2011, when Judge Barber sentenced Petitioner to 15 years. Id. at 18-39. Petitioner did not file a direct appeal. Id. at 41.

         On November 28, 2011, Petitioner filed an application for post-conviction relief ("PCR"), asserting claims of ineffective assistance of counsel and that his guilty plea was not intelligently or voluntarily made. Id. at 40-52.

         A PCR evidentiary hearing was held before the Honorable Clifton B. Newman, Circuit Court Judge, on October 18, 2012, at which Petitioner and his counsel Tommy A. Thomas, Esq., appeared. Id. at 61-100. On December 11, 2012, Judge Newman filed an order of dismissal. Id. at 101-15.

         Petitioner appealed from the denial of PCR on January 8, 2013. [ECF No. 12-2]. He was represented by Chief Appellate Defender Robert M. Dudek of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who filed a Johnson petition[3] for writ of certiorari in the South Carolina Supreme Court on or about October 4, 2013, raising the following issue:

Was defense counsel ineffective for failing to investigate whether petitioner, in fact, had the predicate prior two housebreaking or burglary convictions to be eligible for an indictment for burglary in the first-degree, since counsel's reliance on the fact that petitioner may have stolen a gun during the burglary was insufficient to negate the necessity of an investigation, particularly since petitioner was indicted for first degree burglary because of his alleged two prior convictions, and not because he allegedly stole a gun during the burglary?

         [ECF No. 12-3 at 3]. Petitioner's counsel asserted that the petition was without merit and requested permission to withdraw from further representation. Id. at 12. Petitioner filed a pro se brief. [ECF No. 12-4].

         By order dated October 8, 2014, the South Carolina Supreme Court denied the petition for certiorari. [ECF No. 12-5]. The remittitur was issued on October 24, 2014. [ECF No. 12-6]. Petitioner filed this federal petition for a writ of habeas corpus on March 3, 2015. [ECF No. 1-4 at 1].[4]

         II. Discussion

         A. Federal Habeas Issues

         Petitioner raises the following grounds in his petition:

         Ground One: Not Eligible for Burglary First Degree

Supporting Facts: Only conviction for Breaking and Entering in 1978, well before new laws passed in June 1984.

         Ground Two: Attorneys failure to raise motion to suppress statement.

Supporting Facts: I asked Jennifer Davis to file motion to have statement surpressed due to the fact that I was being treated for withdrawals and taking Ativan when questioned. She told me it wouldn't do any good because I had asked for a mattress the same day and that I'd be better off going with Pastors Breem's program.

         Ground Three: Jennifer Davis and Renee Lipson were actually working for the states case against me.

Supporting Facts: Lee Connely's report that shows Jennifer Davis talking Cheryl Gadjahar into being a victim against me when she had no intest in case and did not wish to pursue charges. Niether attorney followed up on Carolyn Fants wishs. She told victims advocate and police that she hadn't been victim of any crime. Sentencing order that shows Jennifer Davis promised me in turn for pleading guilty.

         Ground Four: Renee Lipson failed to aquired transcript of preminary hearing

Supporting Facts: I asked Ms. Lipson after hearing to get a transcript of hearing in which Det. Joe Clark was obviously lying when he testified that a caretaker had told him that a handgun was missing when they rode by said house the next day, even though Ms. Fant was in hospital as he well knew, he interviewed her the day before. No report on that either. Police report states nothing missing

         [ECF Nos. 1 at 5-10; 1-1] (errors in original).

         B. Standard for Summary Judgment

         Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.

         The moving party has the burden of proving summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by Fed.R.Civ.P. 56(c), set forth specific facts showing there is a genuine dispute for trial.

         C. Habeas Corpus Standard of Review

         1. Generally

         Because Petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Noland v. French, 134 F.3d 208, 213 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         2. Procedural Bar

         Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States[, ]" and requires a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has ...


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