United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge.
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.
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
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
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.
Petition for writ of habeas corpus filed in this United
States District Court, Petitioner raises the following
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
See Petition [Court Docket No. 1], pp. 6, 8.
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 ...