United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
Victor Noe Ortiz-Delvalle, a self-represented state prisoner,
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the court pursuant
to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)
(D.S.C.) for a Report and Recommendation on Respondent's
motion for summary judgment. (ECF No. 13.) Pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the
court advised Petitioner of the summary judgment and
dismissal procedures and the possible consequences if he
failed to respond adequately to Respondent's motion. (ECF
No. 15.) Petitioner filed a response in opposition (ECF No.
21), and Respondent replied (ECF No. 23). Having carefully
considered the parties' submissions and the record in
this case, the court finds that Respondent's motion
should be granted and the Petition be denied.
was indicted by a Greenville County Grand Jury on November
26, 2013, for criminal sexual conduct with a minor in the
first degree (2013-GS-23-10605). (App. at 77-78, ECF No. 14-1
at 79-80.) Petitioner was represented on the charge by Larry
H. Cooke, Esquire and John K. Erwin, Jr., Esquire. (App. at
1, ECF No. 14-1 at 3.) On February 2, 2015, Petitioner pled
guilty as charged in the Greenville County Court of General
Sessions. (Id.) The plea court sentenced Petitioner
to life imprisonment. (App. at 27, ECF No. 14-1 at 29.)
Petitioner did not appeal his conviction or sentence.
30, 2015, Petitioner filed an application for post-conviction
relief (“PCR”) in the Greenville County Court of
Common Pleas. (App. at 29, ECF No. 14-1 at 31.) The PCR court
held a hearing on the application on October 25, 2016 in
which Petitioner was represented by Patrick L. Schmeckpeper,
Esquire. (App. at 42, ECF No. 14-1 at 42.) The PCR court
denied Petitioner's application by order dated November
18, 2016. (App. at 71, ECF No. 14-1 at 73.)
filed a notice of appeal from the denial of his PCR
application. (ECF No. 14-2 at 1.) Petitioner's counsel on
appeal, Robert M. Pachak, Esquire, of the South Carolina
Commission on Indigent Defense, filed a petition for a writ
of certiorari in the South Carolina Supreme Court pursuant to
Johnson v. State. (ECF No. 14-3.) Petitioner did not file
a response to the Johnson petition. The Supreme Court denied
the petition. (ECF No. 14-5.) Petitioner then filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, seeking to vacate his conviction and sentence
and remand to the state court for a new trial.
Petition raises the following issues, quoted verbatim:
Ground One: Actual Innocence. Petitioner is actually innocent
of CSC with a minor, first degree.
Ground Two: Actual Innocence. Petitioner is factually
innocent of the alleged offense-CSC with minor in the first
ECF No. 1 at 5-7.)
Summary Judgment Standard
judgment is appropriate only if the moving party “shows
that there is no genuine dispute as to any material fact and
the [moving party] is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A party may support or refute
that a material fact is not disputed by “citing to
particular parts of materials in the record” or by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of
summary judgment “against a party who ...