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Burgess v. Reynolds

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

April 8, 2016

DARRELL BURGESS, Petitioner,
v.
CECILIA REYNOLDS, Respondent.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III, Magistrate Judge.

         Petitioner, Darrell Burgess (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254[1] on October 26, 2015. (Doc. #1). Respondent filed a motion for summary judgment on February 26, 2016, along with a return and memorandum. (Docs. #15 and #16). The undersigned issued an order filed February 29, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #17). Petitioner failed to file a response.

         RULE 41(B) DISMISSAL

         A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.

Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).

         In the present case, the Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's motion for summary judgment or the court's orders requiring him to respond. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).

         In the alternative, it is recommended that Respondent's motion for summary judgment be granted and the petition dismissed.

         PROCEDURAL HISTORY

         The procedural history as set forth by the Respondent has not been disputed by the Petitioner. Therefore, the undersigned will set out the undisputed procedural history, in part, as set forth by the Respondent.

         Petitioner is currently incarcerated in Lee Correctional Institution. The Lexington County Grand Jury indicted Petitioner during the December 2005 term for two counts of murder and possession of a firearm or knife during the commission of a violent crime. Petitioner was represented by Jack Bradley Baker, Esquire. Appearing on behalf of the State were Deputy Eleventh Circuit Solicitor Samuel R. Hubbard and Assistant Solicitor Robert M. Madsen.

         A jury trial was held on January 28-February 1, 2008, before the Honorable R. Knox McMahon, South Carolina Circuit Court Judge, on both charges. Petitioner was convicted by the jury of each of the charged offenses. Judge McMahon sentenced Petitioner to life imprisonment without parole for each of the murder convictions and a five-year sentence on the weapon charge.

         Direct Appeal

         A timely Notice of Appeal was served on behalf of Petitioner. On appeal, Petitioner was represented by Deputy Chief Appellate Defender for Capital Appeals Robert M. Dudek. In the Final Brief filed June 23, 2009, Petitioner raised the following two issues:

1. Whether the trial court abused its discretion by refusing to excuse juror #72, ... where the juror revealed to the court that he was the supervisor of murder victim David Slice's brother-in-law since defense counsel told the judge he would have removed the juror with a preemptory challenge had he known he was a relative of the murder victim?
2. Whether the trial court erred by refusing to admit the testimony of witnesses Melton, McQuarley, Summers, Aycock, and Ballard about the victims being threatened over drug debts by another man within weeks of the murder, and also before that, since this evidence of third-party guilt was relevant, and appellant had the right to present a complete defense under Holmes v. South Carolina?

(Tr. 813-838). The State filed a Final Brief of Respondent on July 13, 2009. (Tr. 839-875).

         The South Carolina Court of Appeals affirmed Petitioner's convictions in a published opinion filed December 15, 2010. On December 30, 2010, Petitioner filed a Petition for Rehearing. The Court of Appeals filed an order denying the Petition for Rehearing on January 26, 2011.

         Petitioner filed a Petition for Writ of Certiorari on April 29, 2011, raising the following issues to the South Carolina Supreme Court:

1. Whether the Court of Appeals erred by holding the failure of defense counsel to argue he believed the trial judge was mistaken in his belief that he had to take the jurors at their word when they claimed that they could be impartial was procedurally barred on appeal because counsel did not have a duty to argue with the trial court's ruling and the opinion of the Court of Appeals will invite disrespect for the mandate Rule 18(a), SCRCrimP?
2. Whether the Court of Appeals erred by not finding an abuse of discretion where the trial court refused to excuse juror #72, ... where the juror revealed to the court that he was the supervisor of murder victim David Slice's brother-in-law since defense counsel told the judge he would have removed the juror with a preemptory challenge had he known he was a relative of the murder victim?
3. Whether the Court of Appeals erred by not finding an abuse of discretion where the trial court refused to admit the testimony of witnesses Melton, McQuarley, Summers, Aycock, and Ballard about the victims being threatened over drug debts by another man within weeks of the murder, and also before that, since this evidence of third-party guilt was relevant, ...

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