Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Whitner v. Warden, Tyger River Correctional Institution

United States District Court, D. South Carolina

February 9, 2017

Edward Andrell Whitner, Petitioner,
v.
Warden, Tyger River Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE

         Petitioner Edward Andrell Whitner, a self-represented state inmate, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 17.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Whitner was advised of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 18.) Whitner filed a response in opposition (ECF No. 20), and the respondent filed a reply (ECF No. 21). Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondent's motion for summary judgment should be granted, and Whitner's Petition should be denied.

         BACKGROUND

         Whitner was indicted in January 2004 in Greenville County for possession of marijuana with intent to distribute within close proximity of a school, possession of crack cocaine with intent to distribute within close proximity of a school, possession of marijuana with intent to distribute, and trafficking crack cocaine (2004-GS-23-81, -82, -83, -84). (App. at 342-53, ECF No. 16-3 at 46-57.) Whitner was represented by Christopher Scalzo, Esquire, and on March 8, 2006 was tried before a jury and found guilty as charged. The circuit court sentenced Whitner to twenty-five years' imprisonment for trafficking crack cocaine, and ten years' imprisonment for each of the remaining three charges, all sentences to be served concurrently. (App. at 245, ECF No. 16-2 at 92.)

         Whitner filed a direct appeal, but his conviction and sentence were affirmed by the South Carolina Court of Appeals, and the South Carolina Supreme Court denied his petition for a writ of certiorari. Whitner then filed an application for post-conviction relief (“PCR”), which was denied by the state circuit court. The South Carolina Court of Appeals granted Whitner's petition for a writ of certiorari; however, in a per curiam opinion, the South Carolina Court of Appeals affirmed the decision of the lower court. Whitner filed a petition for rehearing, which was denied. Whitner's petition for a writ of certiorari to the South Carolina Supreme Court was also denied. This action followed.

         FEDERAL HABEAS ISSUE

         Having exhausted his state remedies, Whitner asserts the following issue in the instant petition for a writ of habeas corpus:

Ground One: Ineffective Assistance of counsel
Supporting Facts: At PCR hearing, trial counsel testified that he reviewed the search warrant in the case and was aware of Hollingsworth's statement. A statement made by Donald Hollingsworth was use by Officer Torrance White of the Greenville County Sheriff's Office. In that statement Hollingsworth stated that he []went by the house on the corner of “Old Paris Mt. Rd. and Attu Street” where he purchased drugs. The statement was use to obtain a search warrant for “202 Mack St., ” which Hollingsworth never mentioned his statement. As a result of this I was arrested and charged with trafficking. Hollingsworth wasn't present at my trial, nor was his statement ever mentioned, or used as evidence. Only after filing a complaint with the Commission on Lawyer Conduct did my attorney send me this statement, so I had to argue on PCR, and been denied on every stage since.

(Pet., ECF No. 1 at 5) (errors in original; internal citation omitted).

         DISCUSSION

         A. Summary Judgment Standard

         Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.