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Duncan v. Warden, Allendale Correctional Institution

United States District Court, D. South Carolina, Charleston Division

January 13, 2016

Jimmy Duncan, Petitioner,
v.
Warden, Allendale Correctional Institution, Respondent.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

MARY GORDON BAKER, Magistrate Judge.

Petitioner Jimmy Duncan ("Petitioner" or "Duncan") seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court upon the following motions: (a) Respondent's Supplemental Motion for Summary Judgment (Dkt. No. 42); (b) Respondent's first Motion for Summary Judgment (Dkt. No. 25); (c) Petitioner's Motion for Summary Judgment (Dkt. No. 18); (d) Petitioner's Motion "for the Enforcement/Modification as an Supplemental Injunction by Supporting Affidavit" (Dkt. No. 19); and (e) Motion entitled "Prior Bad Acts and Motion to this Court Entering Summary Judgment and Holding Respondent for Contempt" (Dkt. No. 31).

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 October 10, 2014. ( See Dkt. No. 1.) In December of 2014, Petitioner filed a Motion for Summary Judgment as well as a Motion "for the Enforcement/Modification as an Supplemental Injunction by Supporting Affidavit." (Dkt. No. 18; Dkt. No. 19.) On January 12, 2015, Respondent filed a Return and Motion for Summary Judgment. (Dkt. Nos. 25, 26.) Petitioner filed a Response in Opposition to the Motion for Summary Judgment on or about January 22, 2015; he also filed a Motion entitled "Prior Bad Acts and Motion to this Court Entering Summary Judgment and Holding Respondent for Contempt." (Dkt. No. 30; Dkt. No. 31.)

On June 2, 2015, the Court issued an Order requiring Respondent to file a status report on Petitioner's pending case in the South Carolina Supreme Court. (Dkt. No. 33.) On June 4, 2015, the Court ordered Respondent to supplement the record and, if needed, file a supplemental dispositive motion, which would address the issue of whether Petitioner was "in custody" pursuant to 28 U.S.C. § 2254. (Dkt. No. 37).

On June 26, 2015, Respondent filed a Supplemental Motion for Summary Judgment. (Dkt. No. 42.) In an Order dated July 2, 2015, the undersigned noted as follows:

In the original Return, Respondent argued that the instant § 2254 petition should be dismissed without prejudice because appellate review of the denial of Petitioner's application for postconviction relief is still pending before the South Carolina Supreme Court. (See Dkt. No. 26; Dkt. No. 26-6.) In Respondent's supplemental filing, Respondent asserts numerous additional reasons that the instant habeas petition should be dismissed. (See generally Dkt. No. 42.)
Petitioner has not yet had the opportunity to respond to Respondent's supplement. Accordingly, the Clerk is directed to amend the docket text to indicate that Respondent's supplemental filing is a Supplemental Motion for Summary Judgment. (Dkt. No. 42.) The Clerk shall then send Petitioner an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Petitioner is specifically WARNED that if he fails to adequately respond to Respondent's Supplemental Motion for Summary Judgment (Dkt. No. 42), his petition may be dismissed for failure to prosecute and/or comply with the court's orders.
Given the additional briefing required in the instant case, the merits of the pending motions in this case are not ripe for review. Accordingly, the Clerk is directed to remove the pending motions from the docket, without prejudice: Petitioner's Motion for Summary Judgment (Dkt. No. 18); Petitioner's Motion "for the Enforcement/Modification as an Supplemental Injunction by Supportive Affidavit" (Dkt. No. 19); Respondent's Motion for Summary Judgment (Dkt. No. 25); and Petitioner's Motion "Prior Bad Acts and Motion to this Court Entering Judgment for Summary Judgment at Holding Respondent for Contempt" (Dkt. No. 31). Once briefing in the case is complete, the motions will be restored to the active docket.

(Dkt. No. 42 at 2-3.)[1] Petitioner filed a Response to the Supplemental Motion for Summary Judgment on or about August 10, 2015. ( See Dkt. No. 56.)

PROCEDURAL HISTORY

At the time he filed the instant § 2254 petition, Duncan was confined at Allendale Correctional Institution of the South Carolina Department of Corrections ("SCDC"). In December of 2000, the Colleton County Grand Jury indicted Petitioner for first-degree criminal sexual conduct ("CSC") with a minor (2000-GS-15-0726). (Dkt. No. 42-3 at 157-58 of 163.) On December 6, 2000, he pled guilty as charged and was sentenced to fifteen years' imprisonment, suspended upon the service of five years' probation, completion of sexual abuse counseling, and completion of high school. ( Id. at 160.)

In October of 2001, the Colleton County Grand Jury indicted Petitioner for petit larceny (2001-GS-15-0567) and third-degree burglary (2001-GS-15-0568). (Dkt. No. 42-3 at 155-56 of 163; see also Dkt. No. 42-5 at 10 of 48.) Petitioner proceeded to a jury trial before the Honorable Perry M. Buckner on January 27, 2003. (Dkt. No. 42-3 at 3 of 163.) Petitioner was found guilty of thirddegree burglary and not guilty of petit larceny. ( Id. at 138-39.) He was sentenced to five years' imprisonment for burglary and required to pay restitution.[2] ( Id. at 151-53.) For violating probation, the trial judge revoked seven years of Petitioner's sentence on the 2000 CSC conviction, to be served concurrently with the burglary sentence. ( Id. at 151-52.) At some point following his release from prison, Petitioner was placed on community supervision.[3]

In July of 2008, Petitioner pled guilty to failing to register as a sex offender (2008-GS-15-0320) and was sentenced to ninety days' imprisonment. (Dkt. No. 42-1 at 19 of 96.) That same day in July of 2008, Petitioner was removed from community supervision and returned to probation (00-GS-15-0726). (Dkt. No. 42-8 at 1.) On November 10, 2008, Petitioner was found to be in violation of his probation (00-GS-15-0726); the judge ordered Petitioner's probation to be continued. (Dkt. No. 42-9 at 1; see also Dkt. No. 26-1 at 3-23 of 321.)

In February of 2009, the Colleton County Grand Jury indicted Petitioner for possession of less than one gram of cocaine base, first offense (2009-GS-15-0031); in December of 2009, Petitioner was indicted for furnishing or possessing contraband in county or municipal prison (2009-GS-15-0640). (Dkt. No. 26-1 at 316-19 of 321.)

Petitioner proceeded to a jury trial before Judge Buckner on January 13-14 of 2010 on the charge of furnishing or possessing contraband in county or municipal prison (2009-GS-15-0640). ( See Dkt. No. 26-1 at 25-234 of 321.) After the jury trial, Petitioner pled guilty to possession of less than one gram of cocaine base, first offense (2009-GS-15-0031); on that conviction, he was sentenced to time served. (Dkt. No. 26-1 at 235-50 of 321.) Judge Buckner sentenced Petitioner to three years on the conviction for furnishing or possessing contraband in county or municipal prison. ( Id. at 255-56.)[4]

On June 7, 2010, Petitioner filed an application for post-conviction relief ("PCR") in the Colleton County Court of Common Pleas. (Dkt. No. 26-1 at 266-70 of 321.) In his application, Petitioner set forth the following ...


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