United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
appearing pro se, filed his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 on September 27,
2017. Respondent filed a motion for summary judgment on
January 22, 2018, along with a return and memorandum. (ECF
#22 and #23). The undersigned issued an order filed January
23, 2018, pursuant to Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975), advising Petitioner of the motion for
summary judgment procedure and the possible consequences if
he failed to respond adequately. (ECF #24). Petitioner failed
to file a response.
complaint may be dismissed pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure for failure to prosecute
and/or failure to comply with orders of the court.
Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989),
cert. denied, 493 U.S. 1084 (1990), and
Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th
Cir. 1982). In considering whether to dismiss an action
pursuant to Rule 41(b), the court is required to consider
(1) the degree of plaintiff's responsibility in failing
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory
(4) the existence of less drastic sanctions other than
dismissal. Davis v. Williams, 588 F.2d 69 (4th Cir.
present case, the Petitioner is proceeding pro se so
he is entirely responsible for his actions. It is solely
through Petitioner's neglect, and not that of an
attorney, that no responses have been filed. Petitioner has
not responded to Respondent's motion for summary judgment
or the court's orders requiring him to respond. No other
reasonable sanctions are available. Accordingly, it is
recommended that this action be dismissed pursuant to Fed. R.
Civ. Proc. 41(b).
alternative, the motion for summary judgment will be
addressed on the merits below.
failed to file a response. Therefore, the undersigned will
set out the undisputed procedural history, in part, as set
forth by the Respondent.
is currently incarcerated in the Lee Correctional Institution
pursuant to orders of commitment from the Clerk of Court for
Horry County. Petitioner was indicted in July 2008 by the
Horry County Grand Jury for murder and possession of a weapon
during the commission of a violent crime. Petitioner was
represented by James C. Galmore, Esquire. Petitioner's
jury trial was held on November 2, 2009, whereby Petitioner
was found guilty as charged. The Honorable Larry B. Hyman
sentenced Petitioner to concurrent terms of life imprisonment
without the possibility of parole for Murder and five years
for the weapon charge.
timely Notice of Appeal was served on behalf of Petitioner,
and an appeal was perfected with the filing of a Final
Anders Brief of Appellant. On appeal, Petitioner was
represented by Joseph L. Savitz, Esquire of the South
Carolina Appellate Defense. In his Anders Brief,
Petitioner raised the following issue:
The trial judge committee reversible error by giving the jury
a premature Allen charge the moment they indicated they were
(Anders Brief, p. 3).
counsel certified to the South Carolina Court of Appeals the
appeal was without merit and asked to withdraw. On August 15,
2011, after conducting an Anders v. California, 386
U.S. 738 (1967) review, the South Carolina Court of Appeals
dismissed the appeal affirming Petitioner's convictions
and sentences. State v. Griffin, Op. No. 2011-UP-387
(Ct. App. filed August 15, 2011).
filed his application for post-conviction relief (PCR) on
December 28, 2011. In the PCR ...