United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSE, UNITED STATES MAGISTRATE JUDGE.
James Edward Johnson, Jr., a self-represented state prisoner,
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 and subsequently amended his petition.
(ECF No. 24.) 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. 34.) 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. 38.) Petitioner filed a response in opposition. (ECF No.
38.) Having carefully considered the parties' submissions
and the record in this case, the court finds that
Respondent's motion should be granted and the Amended
Petition be denied.
was indicted by Spartanburg County Grand Jury for three
counts of armed robbery, three counts of possession of a
weapon during the commission of a violent crime, four counts
of kidnapping, failure to stop a motor vehicle when signaled
by an officer, and two counts of attempted armed robbery
(12-GS-42-4474A; -4475; -4476; -4477; -4478; -4481; -4482;
-4483; -4484; -4485; -5167). (App. at 145, ECF No. 33-1 at
147.) Petitioner was represented on the charges by Andrea
Leah Price, Esquire. (App. at 1, ECF No. 33-1 at 3.) On
December 18, 2012, Petitioner pled guilty as charged in the
Spartanburg County Court of General Sessions and was
sentenced to an aggregate term of thirty years'
imprisonment, consecutive to his probation revocation. (App.
at 5-9, 36-37, ECF No. 33-1 at 7-11, 38-39.) Petitioner did
not appeal his convictions and sentences.
filed an application for post-conviction relief
(“PCR”) in the Spartanburg County Court of Common
Pleas on April 29, 2013. (App. at 40, ECF No. 33-1 at 42.) A
hearing was held on the application in which Petitioner was
represented by J. Brandt Rucker, Esquire. (App. at 56, ECF
No. 33-1 at 58.) The court denied Petitioner's
application at the hearing and by order dated March 26, 2015.
(App. at 114-123, 127, ECF No. 33-1 at 116-125, 129.)
filed a pro se appeal of the denial of his PCR application by
filing a petition for a writ of certiorari in the South
Carolina Supreme Court. (ECF No. 33-3.) The court denied the
petition. (ECF No. 33-5 at 1.) This action followed.
Amended Petition for a writ of habeas corpus raises the
following issues, quoted verbatim:
Ground One: The PCR erred in denying relief to petitioner
when the court erroneously found counsel was not ineffective
for failing to provide adequate advice concerning the
state's ability to prove “intent to permanently
deprive” element of the charges against him. Violating
state and federal constitutional right to effective
assistance of counsel.
Ground Two: The PCR court erred in denying relief to
petitioner when the court erroneously found that counsel was
not ineffective for failing to challenge the validity of the
armed robbery indictments before advising petitioner to plead
guilty to said indictments. Violating state and federal
constitutional rights to effective assistance of counsel.
Ground Three: The PCR erred in denying relief to petitioner,
when the court erroneously found that counsel's failure
to research/investigate possible defenses had no impact on
the intelligent and voluntary nature of the plea. Violating
his state and federal constitutional right to effective
assistance of counsel.
(Pet., ECF No. 1 at 7; Am. Pet., ECF No. 24 at 1.)
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 fails to make a
showing sufficient to establish the existence of an element
essential to that party's case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
deciding whether there is a genuine issue of material fact,
the evidence of the non-moving party is to be believed and
all justifiable inferences must be drawn in favor of the
non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). However, “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. at 248.
moving party has the burden of proving that summary judgment
is appropriate. Once the moving party makes this showing,
however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or
other means permitted by the Rule, set forth specific facts
showing that there is a genuine issue for trial. See
Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at
322. Further, while the federal court is charged with
liberally construing a petition filed by a pro se litigant to
allow the development of a potentially meritorious case, see,
e.g., Erickson v. Pardus,551 U.S. 89 (2007), the
requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleadings to allege