United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge.
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 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.
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
Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
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, 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 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.
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
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).
evidentiary hearing was held on February 2, 2000. After
communications with Mr. Crow at the hearing, Judge Pieper