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Lewis v. Warden, Evans Correctional Institution

United States District Court, D. South Carolina

April 22, 2016

Kenneth Lewis, #215632, Petitioner,
v.
Warden, Evans Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, Magistrate Judge.

         Petitioner Kenneth Lewis is an inmate at the Evans Correctional Institution of the South Carolina Department of Corrections. He 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 (1) Respondent's return and motion for summary judgment filed January 6, 2016 [ECF Nos. 15, 16]; and (2) Petitioner's motions for entry of default filed December 21, 2015 [ECF No. 12], and for default judgment filed December 22, 2015 [ECF No. 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 February 11, 2016. [ECF No. 17]. Petitioner filed a timely response. [ECF No. 21]. After having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted and that Petitioner's motions for default be denied.

         In his motions for default, Petitioner asks the court to enter default against Respondent. Because Respondent timely filed a return on January 6, 2016 [ECF No. 15], after having requested [ECF No. 9] and been granted [ECF No. 10] an extension until January 13, 2016, the undersigned recommends the motions for default [ECF Nos. 12 and 13] be denied.

         I. Factual and Procedural Background

         Petitioner was indicted by the Dorchester County grand jury during the March 2004 term of court for assault and battery with intent to kill (2004-GS-18-0160). [ECF No. 15-4]. Petitioner was represented by Marva Hardee-Thomas, Esq., in a jury trial April 12, 2005, before the Honorable James C. Williams, Jr., Circuit Court Judge. [ECF No. 15-1 at 3 et seq. ]. Judge Williams sentenced Petitioner to 20 years' incarceration. [ECF No. 15-2 at 2-6].

         Petitioner filed a timely appeal and was represented by Aileen P. Clare, Assistant Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. [ECF No. 15-5]. Attorney Clare filed a final Anders brief[1] on Petitioner's behalf, raising the following issue:

Did the lower court err by admitting into evidence appellant's second videotaped and written statement, when the police continued to question him after he had ended the interrogation, and when the state did not prove that appellant understood his rights when he gave the statements?

         [ECF No. 15-5 at 4].

         Petitioner filed a pro se response to the Anders brief raising the following issues:

I. The Trial Court Lacked Subject Matter Jurisdiction;
II. Appellant Would Argue That His Constitutional Rights Were Violated Because He Was Denied The Right To Present A Complete Defense;
III. The Trial Judge Erred In Refusing To Grant A Direct Verdict of Acquittal Motion.

         [ECF No. 15-6 at 3-4].

         In an unpublished opinion filed January 14, 2008, the South Carolina Court of Appeals ("Court of Appeals") dismissed Petitioner's appeal. [ECF No. 15-7 at 3-4]. The remittitur issued on January 30, 2008. Id. at 1.

         On March 14, 2008, Petitioner filed an application for post-conviction relief ("PCR") (2008-CP-18-00671) in which he alleged four claims of ineffective assistance of counsel and a due process violation. [ECF No. 15-2 at 13-26]. William H. Waring, III, Esq., was appointed to represent Petitioner in his PCR. Attorney Waring filed an amended PCR application that incorporated Petitioner's original claims. Id. at 27-56. A PCR evidentiary hearing was held before the Honorable J. Edgar Dickson, Circuit Court Judge, on September 16, 2009, at which Petitioner and his counsel appeared. Id. at 62-104, 15-3 at 3-10. On December 16, 2009, Judge Dixon filed an order of dismissal. Id. at 13-24.

         Petitioner timely filed a notice of appeal from the denial of PCR. [ECF No. 15-9]. On or about September 14, 2010, LaNelle Cantey Durant, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a petition for writ of certiorari, raising the following issues:

1. Did the PCR court err in failing to find trial counsel ineffective for not investigating petitioner's case when two EMS workers testified that the victim told them Kip Johnson, not petitioner, shot him?
2. Did the PCR court err in failing to find trial counsel ineffective for not stating a specific objection to the admission of petitioner's second videotaped statement when the police continued to question him after petitioner told them to take him back to his cell?

         [ECF No. 15-10 at 3].

         By order issued January 13, 2012, the Supreme Court of South Carolina transferred the PCR appeal to the Court of Appeals. See Rule 243(l), SCACR ("[t]he Supreme Court may transfer a case filed under this rule [governing certiorari review of post-conviction relief actions] to the Court of Appeals"). [ECF No. 15-12]. On August 21, 2013, the Court of Appeals denied the petition for writ of certiorari. [ECF No. 15-13]. The remittitur issued on September 18, 2013. [ECF No. 15-14].

         Petitioner filed a second PCR application on September 23, 2013, alleging prosecutorial misconduct and a due process violation. [ECF No. 15-15 at 3]. The Honorable Diane Goodstein, Circuit Court Judge, signed a conditional order of dismissal on May 1, 2014, finding the application was untimely and successive and giving Petitioner 20 days to explain why the application should not be dismissed. [ECF No. 15-17]. Petitioner filed three responses to the conditional order of dismissal. [ECF Nos. 15-18, 15-19, and 15-20]. On June 19, 2015, the Honorable Maite Murphy, as Chief Administrative Judge for the First Judicial Circuit, filed a final order dismissing Petitioner's second PCR application. [ECF No. 15-22]. Judge Murphy denied Petitioner's motion to reconsider [ECF No. 15-23] in a Form 4 Order filed June 25, 2015 [ECF No. 15-24]. In a Form 4 Order filed July 8, 2015 [ECF No. 15-26], Judge Murphy also denied Petitioner's petition for writ of mandamus that he had filed with the Dorchester County Circuit Court [ECF No. 15-25]. Petitioner also filed a ...


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