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Griffin v. Joyner

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

March 5, 2018

KEION GRIFFIN, Petitioner,
v.
WARDEN AARON JOYNER, Respondent.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254[1] 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.

         RULE 41(B) DISMISSAL

         A 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 four factors:

(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal. Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).

         In the 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).

         In the alternative, the motion for summary judgment will be addressed on the merits below.

         PROCEDURAL HISTORY

         Petitioner failed to file a response. Therefore, the undersigned will set out the undisputed procedural history, in part, as set forth by the Respondent.

         Petitioner 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.

         Direct Appeal

         A 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 deadlocked.

(Anders Brief, p. 3).

         Appellate 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).

         PCR

         Petitioner filed his application for post-conviction relief (PCR) on December 28, 2011. In the PCR ...


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