United States District Court, D. South Carolina, Orangeburg Division
F. Anderson, Jr. United States District Judge.
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”).
FACTUAL AND PROCEDURAL BACKGROUND
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, 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.
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. 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 and
standards without a recitation.
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.
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,  but all grounds warranted dismissal. ECF
No. 30. Petitioner made three objections to the Report with
regard to the first three grounds. ECF No. 33. Each
recommendation and objection will be discussed in accordance
with the ground it was made upon.
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.
Grounds One and Two
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.
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,  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.
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 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.
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
THE COURT: All right, Mr. Hastie, motions on behalf of
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