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Green v. Warden, Palmer Pre-Release Center

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

July 14, 2017

Richard Avon Green, #291708, Petitioner,
Warden, Palmer Pre-Release Center, Respondent.


          Joseph F. Anderson, Jr. United States District Judge.


         Richard Avon Green (“Petitioner”), proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against the Warden of the Palmer Pre-Release Center (“Respondent”).


         Petitioner is a South Carolina Department of Corrections (“SCDC”) inmate incarcerated at the Palmer Pre-Release Center. ECF No. 1-1 at 1. On or about September 19, 2016, [1]Petitioner's petition for writ of habeas corpus was filed. ECF No. 1. On December 22, 2016, Respondent made a motion for summary judgment and filed a return with a memorandum of law in support. ECF Nos. 16-17. Because Petitioner is proceeding pro se, the Magistrate Judge entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of the motion and the need for him to file an adequate response. ECF No. 18. As of February 2, 2017, Petitioner had not responded to the motion. Consequently, the Magistrate Judge entered an order directing Petitioner to advise the court whether he wished to continue with the case. ECF No. 21. In addition, the Magistrate Judge ordered that Petitioner file his response by March 2, 2017, if he wished to proceed. Id. On or about February 10, 2017, Petitioner filed a response, as well as requested a continuance to adequately respond and conduct further investigation. ECF No. 24. The Magistrate Judge denied Petitioner's request to conduct discovery or investigation, but granted Petitioner's request for a continuance and extended the deadline to March 14, 2017. ECF No. 25. Petitioner timely filed a supplemental response. ECF No. 29.

         In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c), D.S.C., the case was referred to the Magistrate Judge for pretrial handling.[2] On March 24, 2017, the Magistrate Judge issued a Report and Recommendation (“Report”) wherein she recommends this Court should grant Respondent's motion for summary judgment and deny the petition. ECF No. 30 at 24. The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In the absence of specific objections to the Report of the Magistrate Judge, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The Report sets forth in detail the relevant facts and standards of law on this matter, and this Court incorporates those facts[3] and standards[4] without a recitation.[5]

         The parties were advised of their right to object to the Report, which was entered on the docket on March 24, 2017. ECF No. 30. The Magistrate Judge gave the parties until April 7, 2017, to file objections. Id. On or about April 6, 2017, Respondent filed objections to the Report. ECF No. 33-1. Thus, this matter is ripe for this Court's review.


         Petitioner raises four grounds on which he claims that he is being held in violation of the Constitution, laws, or treaties of the United States. ECF No. 1. The Magistrate Judge recommended that all grounds-except a portion of Ground Three-were not procedurally barred, [6] but all grounds warranted dismissal. ECF No. 30. Petitioner made three objections to the Report with regard to the first three grounds.[7] ECF No. 33. Each recommendation and objection will be discussed in accordance with the ground it was made upon.

         Finally, the Report is modified on the seventeenth page to reflect the trial transcript reveals that the solicitor misspoke when he requested a lesser included charge of “attempted armed robbery” and it was clarified as a request for “attempted burglary.” ECF No. 16-10 at 153-57.

         A. Grounds One and Two[8]

         Petitioner's first ground is “Insufficient Indictment (Enlarged)” and he claims “that [he was] never Indicted for attempted, and attempt never went before the grand jury.” ECF No. 1 at 5. Petitioner's second ground is “Due Process Violation” and he claims that he was “never put on notice for attempted burglary no one even said anything about attempt, until after [he was] acquitted of 1st degree burglary through a direct verdict.” Id. at 7.

         The Magistrate Judge addressed Grounds One and Two together and recommended that they were not procedurally barred. ECF No. 30. However, as to Ground One, the Magistrate Judge recommended that this Court could not “conclude that the state trial court or the state appellate court's determination on the issue was contrary to, or an unreasonable applicable of, clearly established federal law” because each based their rulings, regarding burglary in the first degree or a lesser included offense of attempted burglary in the first degree, [9] on an interpretation of the South Carolina Code of Laws or common law. ECF No. 30 at 19. Regarding Ground Two, the Magistrate Judge recommended that this Court should find Petitioner's due process rights were not violated by the trial court's jury instruction because Petitioner was indicted for burglary, a more serious crime under South Carolina law. Id. at 20. Moreover, the Magistrate Judge found that the trial court's jury charge of attempted burglary was not unlawful or unconstitutional. Id.

         Petitioner objects to the Magistrate Judge's recommendation that summary judgment should be granted on Grounds One and Two. ECF No. 33. For example, Petitioner argues that the “State[10] Constitution 5th Amendment state that no person shall be put in jeopardy twice for the same crime and its clear that once I were acquitted of the 1st degree burglary I were put in jeopardy again for the same charge.” ECF No. 33 at 1. In addition, Petitioner argues that he was sentenced “for something that [was] not included in the indictment” and “never had a trial for.” Id. at 1-2. These objections simply rehash Petitioner's arguments in his response in opposition. See ECF Nos. 24, 29. However, this Court will address them to alleviate any concern.

         Petitioner's attempt to relay the facts surrounding the directed verdict are misleading. Specifically, the following events transpired regarding the motion for a directed verdict on the burglary charge:

THE COURT: All right, Mr. Hastie, motions on behalf of Defendant?
MR. HASTIE [Defense Counsel]: Yes, Your Honor. Your Honor, I certainly like to make a motion for a directed verdict. We know that one of the four elements of burglary is there must be an entry.
. . .
I think it fails on the elements itself because there never was an entry into [the victim's] home.
THE COURT: All right. So your matter of fact they failed to prove an entry which is one of the requirements of burglary?
MR. HASTIE: Yes, sir.
THE COURT: All right. Mr. Meadors.
MR. MEADORS [Solicitor]: [After arguing circumstantial evidence existed-due to the garage door being lifted two ...

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