United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES, Magistrate Judge.
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. Â§ 2254. This
matter is before the court pursuant to 28 U.S.C. Â§ 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].
carefully considered the parties' submissions and the
record in this case, the undersigned recommends that
Respondent's motion for summary judgment be granted.
Factual and Procedural Background
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.
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.
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
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.
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 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?
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].
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].
Federal Habeas Issues
raises the following grounds in his petition:
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.
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.
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.
Four: Renee Lipson failed to aquired transcript of preminary
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
Nos. 1 at 5-10; 1-1] (errors in original).
Standard for Summary Judgment
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.
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.
Habeas Corpus Standard of Review
Petitioner filed his petition after the effective date of the
AEDPA, review of his claims is governed by 28 U.S.C. Â§
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. Â§ 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. Â§
law establishes this court's jurisdiction over habeas
corpus petitions. 28 U.S.C. Â§ 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 ...