United States District Court, D. South Carolina, Florence Division
DAMON T. BROWN, Petitioner,
WARDEN OF KIRKLAND CORRECTIONAL INSTITUTION, Respondent.
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 February 7,
2018. Respondent filed a motion for summary judgment on May
8, 2018, along with a memorandum in support. (ECF No. 20).
The undersigned issued an order filed May 9, 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. #21). Petitioner filed a response
in opposition on May 24, 2018.
AND PROCEDURAL HISTORY
is an inmate currently housed in the Kirkland Correction
Institution serving two concurrent fourteen-year sentences
for trafficking in cocaine base or methamphetamine 10-28
grams, second offense, and distribution of cocaine, second
offense. (Respondent's Exhibit #1). Petitioner filed this
petition alleging the South Carolina Department of
Corrections has incorrectly calculated/classified his
sentence as an 85% offense and that he should be eligible for
FOR SUMMARY JUDGMENT
federal court is charged with liberally construing the
complaints filed by pro se litigants, to allow them
to fully develop potentially meritorious cases. See Cruz
v. Beto, 405 U.S. 319 (1972); Haines v. Kerner,
404 U.S. 519 (1972). The court's function, however, is
not to decide issues of fact, but to decide whether there is
an issue of fact to be tried. The requirement of liberal
construction does not mean that the court can ignore a clear
failure in the pleadings to allege facts which set forth a
federal claim, Weller v. Dep't of Social Servs.,
901 F.2d 387 (4th Cir. 1990), nor can the court assume the
existence of a genuine issue of material fact where none
exists. If none can be shown, the motion should be granted.
moving party bears the burden of showing that summary
judgment is proper. Summary judgment is proper if there is no
genuine dispute of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Summary judgment is proper if the non-moving party fails to
establish an essential element of any cause of action upon
which the non-moving party has the burden of proof.
Celotex, 477 U.S. 317. Once the moving party has
brought into question whether there is a genuine dispute for
trial on a material element of the non-moving party's
claims, the non-moving party bears the burden of coming
forward with specific facts which show a genuine dispute for
trial. Fed.R.Civ.P. 56(e); Matsushita Electrical
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986). The non-moving party must come forward with enough
evidence, beyond a mere scintilla, upon which the fact finder
could reasonably find for it. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). The facts and
inferences to be drawn therefrom must be viewed in the light
most favorable to the non-moving party. Shealy v.
Winston, 929 F.2d 1009, 1011 (4th Cir. 1991).
However, the non-moving party may not rely on beliefs,
conjecture, speculation, or conclusory allegations to defeat
a motion for summary judgment. Barber v. Hosp. Corp. of
Am., 977 F.2d 874-75 (4th Cir. 1992). The
evidence relied on must meet “the substantive
evidentiary standard of proof that would apply at a trial on
the merits.” Mitchell v. Data General Corp.,
12 F.3d 1310, 1316 (4th Cir. 1993).
that a genuine dispute of material fact exists, a party may
not rest upon the mere allegations or denials of his
pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves). Rather, the party must
present evidence supporting his or her position through
“depositions, answers to interrogatories, and
admissions on file, together with . . . affidavits, if
any.” Id. at 322; see also Cray
Communications, Inc. v. Novatel Computer Systems, Inc.,
33 F.3d 390 (4th Cir. 1994); Orsi v.
Kickwood, 999 F.2d 86 (4th Cir. 1993); Local
Rules 7.04, 7.05, D.S.C.
addition to the standard that the court must employ in
considering motions for summary judgment, the court must also
consider the petition under the requirements set forth in 28
U.S.C. § 2254. Under § 2254(d),
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in the State court proceedings
unless the adjudication of the claim-(1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the State court
writ may be granted if a state court “identifies the
correct principle from [the Supreme] Court's decisions
but unreasonably applies that principle of law” to the
facts of the case. Humphries v. Ozmint, 397 F.3d
206, 216 (4th Cir. 2005) (citing Williamsv.
Taylor, 529 U.S. 362, 413 (2000)). However, “an
‘unreasonable application of federal law is different
from an incorrect application of federal law,' because an
incorrect application of federal law is not, in all
instances, objectively unreasonable.” Id.
“Thus, to grant [a] habeas petition, [the court] must
conclude that the state court's adjudication of his
claims was not only incorrect, but that it was objectively
unreasonable.” McHone v. Polk, 392 F.3d 691,
719 (4th Cir. 2004). Further, factual findings ...