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Dunbar v. South Carolina Department of Corrections

United States District Court, D. South Carolina

October 13, 2016

Rusty Merritte Dunbar, #294996, Petitioner,
Warden of Lieber Correctional Institution, Respondent.


          Bristow Marchant United States Magistrate Judge.

         The pro se Petitioner brought this action seeking relief pursuant to Title 28, United States Code, Section 2254. On June 14, 2016, the Respondent filed a motion for summary judgment. As the Petitioner is proceeding pro se, a Roseboro Order was entered by the Court on June 15, 2016, advising Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response. Petitioner was specifically advised that if he failed to file a properly supported response, the Respondent's motion may be granted, thereby ending his case.

         However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro order, the Petitioner failed to respond to the motion, or to contact the Court in any way. Accordingly, a Report and Recommendation was issued on July 28, 2016, recommending dismissal of this action for failure to prosecute. Petitioner then belatedly filed a request for additional time to respond to the pending motion on August 3, 2016, following which the undersigned vacated the Report and Recommendation and granted Petitioner an extension until August 29, 2016 to file a response. However, on the day his response was due, Petitioner placed a second request in the prison mail for an additional thirty days to respond to “better develop” the issues. The Court then granted Petitioner's motion for an additional extension of time to respond until September 30, 2016. However, Petitioner was specifically instructed in that order that if no response was filed by the deadline, the Clerk would be instructed to reinstate the Report and Recommendation recommending dismissal for failure to prosecute and forward the case to the District Judge for disposition. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) [Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when plaintiff did not comply despite warning].[1]

         The deadline for Petitioner to respond to Respondent's motion for summary judgment has now again expired, and despite the extensions of time granted and the warnings to Petitioner of the potential consequences of his failure to respond, he has still not filed any response in opposition to the motion for summary judgment, which is now before the Court for disposition.[2]

         Procedural History

         Petitioner was indicted in Aiken County in January 2009 for kidnapping [Indictment No. 09-GS-02-0093], first-degree burglary [Indictment No. 09-GS-02-0092], armed robbery [Indictment No. 09-GS-02-0091], and possession of a knife during the commission of a violent crime [Indictment No. 09-GS-02-0090]. (R.pp. 694-695, 699-700, 704-705, 709-710). Petitioner was represented by M. Justin Mills, Esquire, and after a jury trial on December 15-17, 2009, Petitioner was found guilty as charged and sentenced to thirty (30) years imprisonment on the kidnapping charge, thirty (30) years imprisonment on the first-degree burglary charge, thirty (30) years imprisonment on the armed robbery charge, and five (5) years imprisonment for possession of a weapon during the commission of a violent crime, with all sentences to be served concurrently. (R.pp. 494-495, 503). Petitioner filed a timely appeal, as well as an Application for Post Conviction Relief (“APCR”), both of which were denied. (R.pp. 506-541, 680-691); see also Court Docket Nos. 19-1, 19-2, 19-3, 19-4, 19-5, 19-7, and 19-8.

         In his Petition for writ of habeas corpus filed in this United States District Court, Petitioner raises the following issues:

Ground One: Counsel opened the door for the State to use Crack Cocaine as a motive to commit the crimes charged after successfully objecting to such.
a. Counsel objected to the State's questioning of Jerry Thornton won on the issue of irrelevance. Trial Court gave curative instructions and instructed the jury to disregard the testimony. However, during cross, counsel revisited the previously objected to testimony and the trial court, sua sponte threw counsel's objection out the window. The State was then able to use a (1) one time, unrelated purchase of crack cocaine as motive to conduct the crimes charged. Tr.p. 104-113, ll. 1-25.
Ground Two: Counsel was ineffective for failing to request an alibi charge when the sole defense was that of an alibi.
a. Petitioner presented two (2) alibi witnesses [sic] who's testimony corroborated Petitioner's testimony that he was at his brother's house at the time Mr. Hynes was robbed.

See Petition [Court Docket No. 1], pp. 6, 8.


         Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, while the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case; See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972); the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts ...

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