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Walton v. Warden, Graham Correctional Institution

United States District Court, D. South Carolina

October 31, 2018

Braquette Wykina Walton, #353118, Petitioner,
v.
Warden, Graham Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          BRISTOW MERCHANT UNITED STATES MAGISTRATE JUDGE.

         The pro 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.

         However, 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.

         Alternatively, 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 fully hereinbelow.

         Procedural History

         Petitioner 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).

         Petitioner 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[2] 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.

         Petitioner also filed a pro se Anders brief raising the following additional issues:

Ground One: DNA that was not tested and what was tested by SLED;
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].

         On 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.

         On 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.

(R.1');">p. 1048).

         Petitioner 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 PCR hearing:

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 ...

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