United States District Court, D. South Carolina
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin, United States Magistrate Judge
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.
filed this Petition for writ of habeas corpus on March 28,
2017. [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.
carefully considered the parties' submissions and the
record in this case, the Court recommends Respondent's
motion for summary judgment be granted.
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. 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.
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.]
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.]
appealed. Wanda H. Carter (?Carter”) of the South
Carolina Office of Appellate Defense filed a
Johnson 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].
for Writ of Habeas Corpus
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.
Construction of Pro Se Petition
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).
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).
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 ...