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Ortiz-Delvalle v. Williams

United States District Court, D. South Carolina

August 10, 2018

Victor Noe Ortiz-Delvalle, Petitioner,
v.
Warden Randal Williams, Respondent.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         BACKGROUND

         Petitioner 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.

         On July 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.)

         Petitioner 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.[1] (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.

         FEDERAL HABEAS ISSUES

         The 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 degree.

         (Pet., ECF No. 1 at 5-7.)[2]

         DISCUSSION

         A. Summary Judgment Standard

         Summary 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 ...


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