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Moore v. Warden of Perry Correctional Institution

United States District Court, D. South Carolina

November 1, 2017

Darious Lamont Moore, Petitioner,
v.
Warden of Perry Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin, United States Magistrate Judge

         This matter is before the Court on Respondent's motion for summary judgment. [Doc. 15.] Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

         Petitioner filed this Petition for writ of habeas corpus on March 28, 2017.[1] [Doc. 1.] On June 13, 2017, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 14; 15.] On the same day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 16.] On September 5, 2017, Petitioner's response in opposition was entered on the docket. [Doc. 27.] Respondent's reply was filed on September 12, 2017. [Doc. 30.]

         Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted.

         BACKGROUND

         Petitioner is confined in the South Carolina Department of Corrections at Perry Correctional Institution pursuant to orders of commitment of the Sumter County Clerk of Court. [Doc. 1 at 1.] In February 2003, Petitioner was indicted for armed robbery, attempted armed robbery, and possession of a knife during the commission of a crime of violence. [App. 30-31.[2] On March 3, 2003, represented by Joseph Spigner, Petitioner pled guilty to armed robbery. [App. 1-22.] He received a sentence of sixteen years imprisonment. [App. 21.] No direct appeal was filed.

         PCR Proceedings

         Petitioner, proceeding pro se, filed an application for post-conviction relief (“PCR”) on October 23, 2003. [App. 23-28.] The PCR application alleged Petitioner was being held in custody unlawfully based on the following ground: “Ineffective Assistance of Counsel.” [App. 24.] In support of this ground, Petitioner alleged the following facts: “My Attorney misled me to believe that he could get me a 10 yr. sentence for my plea, without informing me that the Judge could override his offer of 10 yrs.” [App. 24.] The State filed a return dated November 2, 2004. [App. 33-36.]

         A hearing was held on March 24, 2005, and Petitioner was represented at the hearing by Walter G. Newman. [App. 37-63.] On April 18, 2005, the PCR court filed an order denying the PCR application with prejudice. [App. 64-69.]

         Petitioner appealed. Wanda H. Carter (?Carter”) of the South Carolina Office of Appellate Defense filed a Johnson[3] petition for writ of certiorari on Petitioner's behalf in the Supreme Court of South Carolina, dated April 11, 2006. [Doc. 14-3.] The petition asserted the following as the sole issue presented: “Trial counsel was ineffective in failing to explain fully sentencing consequences in the case.” [Id. at 3.] At the same time she filed the Johnson petition, Carter submitted a petition to be relieved as counsel. [Id. at 10.] Petitioner filed a pro se response, dated April 13, 2006, but did not raise additional issues. [Doc. 14-4.] On September 11, 2007, the South Carolina Court of Appeals denied the petition and granted counsel's request to withdraw. [Doc. 14-5.] Remittitur was issued on September 27, 2007, and filed on September 28, 2007. [Doc. 14-6].

         Petition for Writ of Habeas Corpus

         Petitioner filed this Petition for writ of habeas corpus on March 28, 2017. [Doc. 1.] Petitioner raises the following grounds/facts for relief, quoted substantially verbatim, in his Petition pursuant to 28 U.S.C. § 2254:

I recognize that I am being held unlawfully imprisonment after receiving court documents from the clerk of court in the county of Sumter on case No. 2003-CP-43-1307 demonstrating that the armed robbery in violation of 16-11-330(A) S.C. Code of Laws, being CDR Code # 0139 was reduce to common law Robbery in violation of 16-11-330(B) S.C. Code of Laws, bearing CDR Code #0026 under indictment No. 2003654300206. Evidence to support this statement are a case history for case warrant H108170 and H108171 and a inmate Step 2 Grievance Form No. BRCI0322-16 Sign and dated July 15, 2016 [Doc. 1 at 5.] As stated, on June 13, 2017, Respondent filed a motion for summary judgment. [Doc. 15.] On September 5, 2017, Petitioner filed a response in opposition [Doc. 27], and on September 12, 2017, Respondent filed a reply [Doc. 30]. Accordingly, the motion for summary judgment is ripe for review.

         APPLICABLE LAW

         Liberal Construction of Pro Se Petition

         Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         Summary Judgment Standard

         Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

         The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) 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). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears ...


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