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White v. McFadden

United States District Court, D. South Carolina, Florence Division

February 2, 2017

JOHNNY WHITE, Petitioner,
v.
JOSEPH McFADDEN, WARDEN, Respondent.

          REPORT AND RECOMMENDATION [1]

          Thomas E. Rogers, III United States Magistrate Judge.

         Petitioner, Johnny White (Petitioner), filed his petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254[2] 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.

         RULE 41(B) DISMISSAL

         A 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 four factors:

(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.

Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).

         In the 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).

         However, 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

         The 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, in part.

         Petitioner 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).

         DIRECT APPEAL

         Petitioner 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).

         The 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).

         PCR

         Petitioner 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 mental health.
b. Fail to file a directed appeal/motion for reconsideration and mollified sentence.
2. 5th, 6th, 14th Amendment ...

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