United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MERCHANT UNITED STATES MAGISTRATE JUDGE.
se Petitioner brought this action seeking relief pursuant to
Title 28, United States Code, Section 2254. On July 5, 2018,
the Respondent filed a motion for summary judgment. As the
Petitioner is proceeding pro se, a Roseboro Order was entered
by the Court on July 6, 2018, advising Petitioner of the
importance of a dispositive motion and of the need for her to
file an adequate response. Petitioner was specifically
advised that if she failed to file a properly supported
response, the Respondent's motion may be granted, thereby
ending her case.
notwithstanding the specific warning and instructions as set
forth in the Court's Roseboro order, and receiving two
extensions of time to respond, the Petitioner has failed to
respond to the motion. Therefore, Petitioner meets all of the
criteria for dismissal under Chandler Leasing Corp. v.
Lopez, 19');">669 F.2d 919, 920 (4th Cir.
1982).[1" name="FN1" id=
"FN1">1] Accordingly, this action should be
dismissed with prejudice for lack of prosecution. See
Davis v. Williams, 588 F.2d 69');">588 F.2d 69, 70 (4th Cir. 1978);
Rule 41(b), Fed.R.Civ.P.
if the Court determines that this Petition should not be
dismissed for failure to prosecute, it should still be
dismissed with prejudice on the merits, as is discussed more
was indicted in York County in February 2012 for murder
[Indictment No. 2012-GS-46-865], exploitation of a vulnerable
adult [Indictment No. 2012-GS-46-866], four counts of forgery
and uttering [Indictment Nos. 2012-GS-46-868, -869, -870, and
-871], and abuse or neglect of a vulnerable adult resulting
in death [Indictment No. 2012-GS-16-883]. In August 2012, the
grand jury indicted the Petitioner on four additional counts
of forgery and uttering [Indictment Nos. 2012-GS-46-867,
-3016, -3017, and -3018] and for burglary in the first degree
[Indictment No. 2012-GS-46-3015]. Petitioner was represented
on these charges by Phil Smith, Esquire, and Ashley Anderson,
Esquire, and following a jury trial on October 29-November 1,
2012, was found guilty as charged. (R.p1');">p. 1-991). Petitioner
was then sentenced to life imprisonment for murder, thirty
(30) years imprisonment for burglary, five (5) years
imprisonment on each count of forgery and uttering, and five
(5) years for exploitation of a vulnerable adult, all
sentences to be served concurrently. (R.p1');">p. 1002-1004).
Additionally, on November 5, 2012, after having taken defense
counsels' post-trial motion under advisement, the trial
judge reconvened the sentencing hearing and sentenced
Petitioner to thirty (30) years imprisonment for abuse or
neglect of a vulnerable adult resulting in death, also to be
served concurrently. (R.p1');">p. 1005-1007).
filed a timely appeal in which she was represented by Susan
B. Hackett, Esquire, of the South Carolina Commission on
Indigent Defense. Petitioner's counsel filed an
Anders brief seeking to be relieved, and raising
the following issue:
The trial judge erred in failing to instruct the jury as to
voluntary manslaughter, a lesser included offense of murder,
because [Petitioner's] conduct was precipitated by the
deceased angrily hitting [Petitioner] with a telephone and
pulling [Petitioner's] hair, which provided evidence that
[Petitioner] acted during the sudden heat of passion based
upon sufficient legal provocation.
See Court Docket No. 16-4, p. 4.
also filed a pro se Anders brief raising the following
Ground One: DNA that was not tested and what was tested by
Ground Two: The statement of Linda Roch stating she checked
on [victim] and then denied that she did;
Ground Three: The fact that there was no handwriting expert
to verify [victim's] handwriting only accepted
[victim's] daughter to verify signature;
Ground Four: Evidence was collected a hand print and hair
from telephone which was never run against anyone else;
Ground Five: The timeline of Nov. 12, 2011 from the nurses on
call: Kayla Larson, [Teresa] Stagner, Linda Roach; and
Ground Six: The unsigned statement turned in by Det Stokes
and Det Smith.
See Court Docket No.16-5, 1');">p. 1 [Errors in Original].
November 5, 2014, the South Carolina Court of Appeals granted
counsel's motion to be relieved and dismissed the appeal.
State v. Walton, 2014-UP-377 (S.C.Ct.App. Nov. 5,
2014). See Court Docket No. 16-6. The Petitioner did not seek
a rehearing or file for certiorari to the South Carolina
Supreme Court, and the Court of Appeals thereafter issued the
Remittitur to the York County Clerk of Court on November 21,
2014. See Court Docket No. 16-7.
March 24, 2015, Petitioner filed an application for
post-conviction relief (“APCR”) in state circuit
court. See Walton v. State of South Carolina, No.
2015-CP-46-889. (R.p1');">p. 1045-1051). Petitioner listed the
following issues in her Petition:
Ground One: Ineffective assistance of trial counsel.
Ground Two: New Evidence.
Ground Three: Failure to grant a change of venue.
was represented in his APCR by Leah B. Moody, Esquire, and an
evidentiary hearing was held on Petitioner's application
on April 19, 2016. (R.p1');">p. 1059-1113). The PCR court found
that Petitioner pursued the following specific issues at the
Ground One: Ineffective assistance of trial counsel
a. Failure to research law.
b. Failure to submit or object jury charge.
c. Failure to develop and present defense.
d. Faliure to make proper motions.
e. Ineffective agreement.
Ground Two: Newly Discovered Evidence.
Ground Three: Failure to grant a change ...