United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION 
E. Rogers, III United States Magistrate Judge.
Johnny White (Petitioner), filed his petition pro se
for a writ of habeas corpus pursuant to 28 U.S.C. §
on August 1, 2016. (Doc. #1). Respondent filed a motion for
summary judgment on October 31, 2016, along with a return and
memorandum. (Docs. #15 and #16). The response was due on or
before November 17, 2016. On November 30, 2016, Petitioner
filed a motion for an extension of time to file a response.
This motion was granted on December 1, 2016, giving
Petitioner until January 4, 2017, to file a response to
Respondent's motion for summary judgment pursuant to the
Roseboro order or his case may be dismissed for
failure to prosecute pursuant to Rule 41 of the Federal Rules
of Civil Procedure. Petitioner failed to file a response.
complaint may be dismissed pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure for failure to prosecute
and/or failure to comply with orders of the court.
Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989),
cert. denied, 493 U.S. 1084 (1990), and
Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th
Cir. 1982). In considering whether to dismiss an action
pursuant to Rule 41(b), the court is required to consider
(1) the degree of plaintiff's responsibility in failing
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory
(4) the existence of less drastic sanctions other than
Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
present case, the Petitioner is proceeding pro se so
he is entirely responsible for his actions. It is solely
through Petitioner's neglect, and not that of an
attorney, that no responses have been filed. Petitioner has
not responded to Respondent's motion for summary judgment
or the court's orders requiring him to respond. No other
reasonable sanctions are available. Accordingly, it is
recommended that this action be dismissed pursuant to Fed. R.
Civ. Proc. 41(b).
in the alternative, it is recommended that Respondent's
motion be granted and the petition dismissed based on the
merits as discussed below.
procedural history as set forth by the Respondent in the
memorandum has not been disputed as Petitioner did not file a
response. Therefore, the undersigned will set out the
undisputed procedural history as set forth by the Respondent,
is presently confined at Lieber Correctional Institution.
During the December 2008 term, the Orangeburg County Grand
Jury indicted Petitioner on the charges of burglary, first
degree, and assault and battery with intent to kill (ABWIK).
(Attachment1, pp.109-12). Jillian D. Ullman, represented
Petitioner on the charges . On July 20, 2009, Petitioner
pleaded guilty to the charges before the Honorable Edgar
Dickson, with a recommended sentencing cap of twenty-eight
(28) years. (Attachment 1, p.3-22). Judge Dickson sentenced
Petitioner to concurrent terms of twenty-eight (28)
years' imprisonment for burglary and twenty (20)
years' imprisonment for ABWIK. (Attachment 1, p.23).
timely filed a notice of appeal. (Attachment 3, p.1). Plea
counsel noted it was her opinion there was no legal basis for
the appeal, but Petitioner had requested one and, as his
attorney, it was her duty to carry out his request.
(Attachment 3, p.2).
Court of Appeals dismissed the appeal pursuant to Rule
203(d)(1)(B)(iv), SCACR, for failure to provide a sufficient
explanation of the issues on appeal. (Attachment 1, p.25).
Petitioner did not seek further review and the court issued
its remittitur on October 8, 2009. (Attachment 4).
filed an application for post-conviction relief (PCR) on
January 19, 2010. Petitioner raised the following claims:
1. Ineffective assistance of counsel
a. Counsel fail to seek my medical evaluation concerning my
b. Fail to file a directed appeal/motion for reconsideration
and mollified sentence.
2. 5th, 6th, 14th Amendment