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Dewberry v. Williams

United States District Court, D. South Carolina

October 31, 2018

Bernard Dewberry, #278949, Petitioner,
v.
Warden Williams, Respondent.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE

         Bernard Dewberry (“Petitioner”) is a state prisoner who filed this pro se 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)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 13, 14. On August 2, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 15. On August 29, 2018, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment, ECF No. 17. Respondent filed a Reply on September 5, 2018. ECF No. 20. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 14, be granted, and this Petition be dismissed without prejudice for failure to fully exhaust state remedies.

         I. Background

         Petitioner filed this habeas corpus Petition challenging a guilty plea entered on August 24, 2016, in Spartanburg County, South Carolina. According to the documentation submitted to this Court by Respondent, and with which Petitioner agrees, Petitioner filed a direct appeal, which was dismissed by the South Carolina Court of Appeals, and his post-conviction relief (“PCR”) application has been denied and dismissed by a judge in the Seventh Circuit Court of Common Pleas. See ECF Nos. 13-3, 13-4, 13-5, 13-8. However, his PCR appeal is still pending in the South Carolina Supreme Court. See ECF Nos. 13-9, 13-10, 17, 18-1, 18-2. Despite his Petition request that this Court vacate his conviction, in his Response to the Motion for Summary Judgment, Petitioner asks this Court to “set aside his habeas review in' till his appeal is done.” ECF No. 17 at 1.

         II. Discussion

         A. Petitioner's Federal Habeas Grounds

         Petitioner raises the following issues in his Petition, quoted verbatim:

Ground One: [Blank]
Supporting Facts: On the mental health issue, the Applicant express that he's been dealing with it from the age of 15, and also by spending 474 day in the Spartenburg Law Enforcement Center, and being on medication during and after the crime, and also on Methamphetamine.
Ground Two: Court did not allow applicant to present evidence of Applicant and victim's drug use at the time of offense
Supporting Facts: Victim tried to attack the Applicant with a knife, when both the Applicant and victim was under the influence of methamphetamine
Ground Three: There was also a plea deal before trial
Supporting Facts: Had the Applicant known trial counsel was not going to present the toxicology report and the witnesses statements, he would have taken the original plea offer from the State.

         ECF No. 1 at 5, 7, 8.

         B. Standard for Summary Judgment

         The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes ...


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