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Chisolm v. Warden, Perry Correctional Institution

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

March 7, 2018

DON SURVI CHISOLM, Petitioner,
v.
WARDEN, PERRY CORRECTIONAL INSTITUTION, 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 October 27, 2017. Respondent filed a motion for summary judgment on January 26, 2018, along with a return and memorandum. (ECF Nos. 17 and 18). The undersigned issued an order filed January 29, 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. (Doc. #19). Petitioner failed to file a response in opposition.

         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 Perry Correctional Institution pursuant to orders of commitment from the Clerk of Court for Dorchester County. Petitioner was indicted in January 2008 by the Dorchester County Grand Jury for murder. Petitioner was initially represented by John Loy, Esquire, until February 11, 2011, when Petitioner moved to dismiss counsel and requested to represent himself. The Honorable Diane Schafer Goodstein granted the request after inquiry on the waiver of the right to counsel. The case was originally called to trial before the Honorable Edgar W. Dickson on August 22, 2011. Petitioner represented himself with Mr. Loy as standby counsel. Petitioner's motion for a mistrial was granted and another jury trial was scheduled and held September 13-19, 2011, before the Honorable Goodstein. Petitioner again represented himself with Mr. Loy as standby counsel. Petitioner was found guilty as charged. Judge Goodstein sentenced Petitioner to life imprisonment.

         Direct Appeal

         A timely Notice of Appeal was served. On appeal, Petitioner was represented by Chief Public Defender Robert M. Dudek and Appellate Defender Lara M. Caudy of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. A final brief was filed on February 5, 2015, raising the following issues:

1. Whether the court erred by ruling evidence of appellant's prior drug dealing was admissible since it was unduly prejudicial pursuant to Rule 403, SCRE, and the judge erred by ruling it was admissible to prove motive under Rule 404(b), SCRE?
2. Whether the court erred by allowing a weapon into evidence since there was not a sufficient nexus to prove the weapon was involved in the murder, and it ...

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