Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hawkins v. Warden Perry Correctional Institution

United States District Court, D. South Carolina, Anderson/Greenwood Division

January 20, 2016

Allan Lee Hawkins, Petitioner,
v.
Warden Perry Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN, Magistrate Judge.

         This matter is before the Court on Respondent's motion for summary judgment. [Doc. 21.] Petitioner, proceeding pro se, is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

         Petitioner filed this Petition for writ of habeas corpus on November 6, 2014.[1] [Doc. 1.] On March 3, 2015, Respondent filed a motion for summary judgment and a return and memorandum. [Docs. 21, 22.] On the same day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 23.] Petitioner filed a response in opposition on April 6, 2015. [Doc. 31.]

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

         BACKGROUND

         Petitioner is incarcerated in the Perry Correctional Institution of the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Court for Greenville County. [Doc. 1 at 1.] Petitioner was indicted in April 2006 for murder, armed robbery, and possession of a weapon during the commission of or the attempt to commit a violent crime. [App. 667-70.[2] On January 14-17, 2008, represented by Mills Ariail ("Ariail") and Paul Landis, Petitioner proceeded to trial.[3] [App. 1-605.] At the conclusion of the trial, the jury returned a verdict of guilty on all charges. [App. 592.] Petitioner was sentenced to five years imprisonment for the charge of possession of a weapon during the commission of a violent crime, 10 years for the armed robbery charge, and 30 years for the murder charge, all to run concurrent. [App. 603; Doc. 1 at 1.]

         Direct Appeal

         Petitioner appealed his conviction. Joseph L. Savitz ("Savitz") of the South Carolina Commission on Indigent Defense filed an Anders [4] brief on Petitioner's behalf, dated June 16, 2009, in the South Carolina Court of Appeals, raising the following issue:

The trial judge committed reversible error by refusing to instruct the jury specifically that "the use of a weapon does not automatically preclude self-defense."

         [Doc. 22-7 at 4.] At the same time, Savitz filed a petition to be relieved as counsel. [ Id. at 8-9.] Petitioner wrote a letter, dated December 29, 2009, requesting that his case be reviewed in light of the decision "in the Johnny Rufus Belcher' case." [Doc. 22-9.] On January 28, 2010, the South Carolina Court of Appeals denied and dismissed Petitioner's appeal and granted counsel's motion to be relieved. [Doc. 22-10.] Petitioner filed a pro se petition for rehearing dated February 3, 2010 [Doc. 22-11], and the petition for rehearing was denied on March 18, 2010 [Doc. 22-12]. On April 16, 2010, Petitioner filed a pro se petition for writ of certiorari [Doc. 22-13], and the Supreme Court of South Carolina denied the petition on April 21, 2010 [Doc. 22-14]. Remittitur was issued on April 22, 2010. [Doc. 22-15.]

         PCR Application

         Petitioner filed a pro se application for post-conviction relief ("PCR"), dated May 4, 2010. [App. 607-15.] In an attachment to the application, Petitioner alleged he was being held in custody unlawfully based on the following grounds:

(a) Ineffective Assistance of Counsel.
(b) Ineffective Assistance of Counsel.
(c) Ineffective Assistance of Counsel.
(d) Ineffective Assistance of Counsel
(e) Ineffective Assistance of Appellate Counsel

         [App. 613.] In support of his grounds for relief, Petitioner provided the following facts, quoted substantially verbatim:

(a) Ineffective Assistance of Counsel for failing to object to erroneous malice instruction.
(b) Ineffective Assistance of Counsel for failing to ask for manslaughter charge after jury asked if they could deliberate on a lesser charge.
(c) Ineffective Assistance of Counsel for failing to ask for a mistrial after consecutive hung jury statements.
(d) Ineffective Assistance of Counsel for failing to object when my due process rights were violated when the trial Judge refused to give the jury the option of deliberating on a lesser offense of manslaughter.
(e) Ineffective Assistance of Appellate Counsel for failing to raise and brief the preserved felony question that swayed the decision of the jury.

         [ Id. ] The State filed a return, dated September 15, 2010. [App. 616-21.]

         A hearing was held on August 2, 2011, at which Petitioner was represented by Hal W. Roach. [App. 622-58.] An order denying and dismissing the PCR application with prejudice was filed by the PCR court on August 24, 2011. [App. 659-66.]

         A notice of appeal was timely filed. David Alexander of the South Carolina Commission on Indigent Defense filed on Petitioner's behalf a Johnson [5] petition for writ of certiorari, dated May 30, 2012, in the Supreme Court of South Carolina asserting the following as the sole issue presented:

Whether petitioner's Sixth Amendment rights were violated because trial counsel was ineffective in failing to ask for a mistrial after the jury stated twice that they could not reach a decision on a murder conviction?

         [Doc. 22-17 at 3.] At the same time, counsel filed a petition to be relieved. [ Id. at 10.] On June 28, 2012, Petitioner filed a pro se petition for writ of certiorari, raising the following issues quoted substantially verbatim:

I. Whether petitioner's Sixth Amendment rights were violated because trial counsel was ineffective for failing to object to erroneous malice instruction?
II. Whether petitioner's Sixth Amendment rights were violated because trial counsel was ineffective for failing to ask for a manslaughter charge before trial began and after jury asked if they could deliberate on a lesser charge because they did not feel they could reach a verdict on the murder charge?
III. Whether petitioner's Sixth Amendment rights were violated because trial counsel was ineffective for failing to ask for a mistrial after the jury stated on three separate occasions that they could not reach a verdict on the murder conviction?

         [Doc. 22-19.] The Supreme Court of South Carolina transferred the case to the South Carolina Court of Appeals, and the Court of Appeals denied the petition and granted counsel's request to withdraw on March 6, 2014 [Doc. 22-20] and remitted the matter to the lower court on March 24, 2014 [Doc. 22-21].

         Petition for Writ of Habeas Corpus

         As previously stated, Petitioner filed his first Petition on November 6, 2014.[6] [Doc. 1.] In his Petition, Petitioner raises the following grounds for relief, quoted substantially verbatim:

Ground One: Erroneous jury instruction by Trial Judge. See attached Anders Brief.
Supporting Facts: See attached Anders Brief
Ground Two: Ineffective Assistance of Counsel. See Attachments from pg. 4 &pg. 5 (PCR)
Supporting Facts: Petitioner testified that he and Mr. Gilbert were in a physical altercation when shooting occurred. Petitioner stated during the altercation, Mr. Gilbert grabbed his gun, the petitioner then pulled his weapon ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.