Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

White v. Stephon

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

March 5, 2018

PERVIS WHITE, Petitioner,
v.
WARDEN STEPHON, Respondent.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge.

         Petitioner, Pervis White (“Petitioner/White”), is an inmate in the custody of the South Carolina Department of Corrections (SCDC). Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254[1] on July 24, 2017. Respondent filed a motion for summary judgment on December 8, 2017, along with a return and supporting memorandum. Because Petitioner is proceeding pro se, he was advised on or about December 12, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure to respond to the Respondent's motion for summary judgment could result in the dismissal of his petition. 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, it is recommended that Respondent's motion for summary judgment be granted and this action be dismissed as barred by the statute of limitations. However, the procedural history is set forth for reference purposes.

         PROCEDURAL HISTORY

         The procedural history as set forth by the Respondent in his memorandum has not been disputed by Petitioner. Therefore, the undersigned will set out the undisputed procedural history as set forth by the Respondent, in part.

         Petitioner is currently confined at the Lee Correctional Institution in the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Court for Dillon County. Petitioner was indicted by the Dillon County Grand Jury for murder (95-GS-17-0730), armed robbery (95-GS-17-0729), and criminal conspiracy (95-GS-17-0731). Glenn B. Manning and John Jepertinger represented Petitioner on the charge. The State sought the death penalty and a jury was drawn for Petitioner's trial, but prior to the beginning of trial a plea agreement was reached. The plea agreement allowed Petitioner to make an Alford plea to the charges in exchange for the State agreeing to a life sentence for the charge of murder, thirty (30) years concurrent for the charge of armed robbery, and four (4) years consecutive for the charge of criminal conspiracy. The agreement was memorialized in writing and signed by Petitioner. On February 12, 1998, the Honorable Marc B. Westbrook was informed of the plea agreement and proceeded straight into a guilty plea hearing. Judge Westbrook heard the plea, qualified it as voluntarily and intelligently given, and accepted the Alford plea after hearing the factual summary provided by the State. (Attachment 1. PCR App. pp. 2, line 9 through pp. 27, line 3; Attachment 2, pp 3-6). Petitioner did not seek a direct appeal of his plea or sentencing.

         First PCR Action

         On January 21, 1999, Petitioner filed an Application for Post-Conviction Relief in the Court of Common Pleas for Dillon County. The State made its return to the petition on April 21, 1999. Petitioner was assigned counsel, Wade R. Crow. The PCR hearing was held before the Honorable Daniel F. Pieper who summarized the allegations of error as follows:

1. Denial of due process;
2. Ineffective assistance of counsel by misleading applicant to enter a plea to the offenses; and
3. that his Alford plea was involuntary.

(Attachment 1. PCR App. pp. 88).

         An evidentiary hearing was held on February 2, 2000. After communications with Mr. Crow at the hearing, Judge Pieper subsequently ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.