United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES, Magistrate Judge.
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. 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
(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].
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.
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.
Factual and Procedural Background
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].
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 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?
No. 15-5 at 4].
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
III. The Trial Judge Erred In Refusing To Grant A Direct
Verdict of Acquittal Motion.
No. 15-6 at 3-4].
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.
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.
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
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?
No. 15-10 at 3].
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].
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 ...