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Tucker v. Warden, McCormick Correctional Institution

United States District Court, D. South Carolina, Rock Hill Division

September 14, 2016

Billy Shane Tucker, Petitioner,
v.
Warden, McCormick Correctional Institution, Respondent.

          ORDER AND OPINION

         Petitioner Billy Shane Tucker (“Petitioner”), proceeding pro se, filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging seven grounds for relief. (ECF No. 1.) This matter is before the court on Respondent's Motion for Summary Judgment. (ECF No. 18.)

         In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Paige Gossett, for pre-trial handling. On July 25, 2016, the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court grant Respondent's Motion for Summary Judgment and deny the Petition. (ECF No. 41.) This review considers Respondent's Objections to the Report and Recommendation of the Magistrate (“Respondent's Objections), (ECF No. 41), as well as Petitioner's Objections to Judge's Report and Recommendation (“Petitioner's Objections”), (ECF No. 44.) For the reasons stated herein, this court ADOPTS the Report of the Magistrate Judge.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         The court concludes upon its own careful review of the record that the factual and procedural summation in the Magistrate Judge's Report is accurate, and the court adopts this summary as its own. (See ECF No. 41). The court will only recite herein facts pertinent to the analysis of Petitioner's Objections.

         In August 2005, the Anderson County Grand Jury issued an indictment charging Petitioner with murder, assault and battery with intent to kill (“ABWIK”), and possession of a weapon during the commission of a violent crime. (ECF No. 41 at 1.) Petitioner was represented by counsel- Robert Gamble, Esquire-and was tried by jury on March 13-15, 2006. (Id.) The jury found Petitioner guilty as charged. (Id. at 2.) The circuit court sentenced Petitioner to life imprisonment for murder, twenty years' imprisonment for ABWIK, and five years' imprisonment for possession of a weapon, all sentences to be served consecutively. (Id.) Petitioner, represented by appellate counsel, timely appealed, and the South Carolina Court of Appeals dismissed his appeal. (Id.)

         Subsequently, on January 7, 2009, Petitioner filed a pro se application for post-conviction relief (“PCR”). (Id.) The PCR court held an evidentiary hearing at which Petitioner appeared and was represented by counsel. (Id.) Following the hearing, the PCR court denied and dismissed Petitioner's PCR application with prejudice. (Id.) Subsequently, Petitioner filed a petition for writ of certiorari. Petitioner also filed a pro se addendum to the petition for writ of certiorari raising ten issues for review. (Id. at 5.) On February 24, 2014, the South Carolina Court of Appeals directed the parties to file a merits brief addressing trial counsel's failure to object to Petitioner's sentence for possession of a weapon during the commission of a violent crime. (Id.) Petitioner, through counsel, submitted a merits brief addressing four issues. On January 27, 2015, the South Carolina Court of Appeals vacated Petitioner's sentence for possession of a weapon during commission of a violent crime, and denied Petitioner's requested relief as to the remaining three issues. (Id. at 6.)

         Petitioner filed the instant habeas petition on October 13, 2015, alleging seven grounds for relief. (See ECF No. 1.) Tucker's federal Petition for a writ of habeas corpus raises the following issues, quoted verbatim:

Ground One: Subject Matter Jurisdiction
Supporting Facts: State took Petitioner to General Sessions Court on Void and Nullity Indictments.
Ground Two: Subject Matter Jurisdiction
Supporting Facts: State took Petitioner to a Jury trial during a Common Pleas Court term. Petitioner had his Jury trial during a Common Pleas Court term. The Judge (general sessions) doing Common Pleas court can open up (GS) to do Any general sessions' business except trials by Jury. Any trial by Jury done during a Common Pleas Court term defined by (title 14) is illegal and cannot be trust or relied upon. Petition is bringing this up for the first time on Appeal As Subject Matter Jurisdiction.
Ground Three: Due Process Violation (3 counts)
Supporting Facts:
(1) State took petitioner to a Jury trial During a common Pleas court term/which is a violation of state law/statues.
(2) State took Petitioner to a Jury trial on void indictments
(3) State prosecution Put personnel belief in closing Arguments
Ground Four: Prosecutional Misconduct
Supporting Facts:
(1) for take Petitioner to court to a Jury trial during a common pleas court term.
(2) for taking Petitioner to Court as Void and Nullity indictments.
(3) for Putting Personnel Belief in closing Argument which ...

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