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 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.
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, 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 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.
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 ...