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Wright v. Warden, Perry Correctional Institution

United States District Court, D. South Carolina

April 2, 2019

Gregory Wright, Petitioner,
v.
Warden, Perry Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE

         Petitioner Gregory Wright, a self-represented state prisoner, filed a 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) 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. 12.) 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. 13.) Petitioner filed a response in opposition. (ECF No. 15.) Having carefully considered the parties' submissions and the record in this case, the court finds that Respondent's motion should be granted and the Petition denied.

         BACKGROUND

         Petitioner was indicted by a Grand Jury in the Sumter County Court of General Sessions on July 17, 2008 for possession of a firearm during the commission of a violent crime, owning animals for the purpose of fighting, animal fighting, ill treatment of animals, trafficking in cocaine, possession with intent to distribute marijuana, and trafficking in crack cocaine (2008-GS-43-927, -929, -930, -931, -932, -933, -934). (App. at 533-55, ECF No. 11-2 at 36-58.) The late Cameron B. Littlejohn, Esquire, represented Petitioner at trial, which was held on January 12-13, 2009. (App. at 1, ECF No. 11-1 at 3.) Petitioner was convicted on all counts except for possession with intent to distribute marijuana, for which he was convicted of the lesser-included offense of simple possession of marijuana. (App. at 387-88, ECF No. 1-1 at 389-90.) Petitioner was sentenced to twenty-five years' imprisonment for trafficking in cocaine and trafficking in crack cocaine; five years' imprisonment for owning animals for the purpose of fighting, animal fighting, ill treatment of animals, and possession of a firearm during the commission of a violent crime; and thirty days' imprisonment for simple possession of marijuana. (App. at 398-400, ECF No. 11-1 at 400-02.)

         On appeal, Petitioner was represented by Robert M. Pachak of the South Carolina Commission on Indigent Defense. (App. at 402, ECF No. 11-1 at 404.) Appellate counsel filed an Anders[1] brief in the South Carolina Court of Appeals, asserting there were no meritorious grounds for appeal and requesting permission to withdraw from further representation. (App. at 427-28, ECF No. 11-1 at 429-30.) The Court of Appeals denied appellate counsel's request and instructed the parties to file additional briefs. (Id.) The sole issue raised by Petitioner was “Did the trial court err in finding there was sufficient evidence or substantial circumstantial evidence that Appellant constructively possessed the drugs to support the trial court's denial of Appellant's motion for a directed verdict on the drug charges?” (App. at 405, ECF No. 11-1 at 407.) The Court of Appeals affirmed in a per curiam opinion. (App. at 427-28, ECF No. 11-1 at 429-30.)

         Petitioner filed a petition for a writ of certiorari in the South Carolina Supreme Court. The Supreme Court granted the petition for a writ of certiorari, ordered full briefing, and held oral argument, but dismissed the petition as improvidently granted in a memorandum opinion.[2] (Pet., ECF No. 1 at 2; Respt.'s Mem. Supp. Summ. J., ECF No. 11 at 3.)

         Petitioner filed an application for post-conviction relief (“PCR”) in the Sumter County Court of Common Pleas. (App. at 429, ECF No. 11-1 at 431.) The PCR court held a hearing on the application in which Petitioner was represented by Lance S. Boozer, Esquire. (App. at 444, ECF No. 11-1 at 446.) The PCR court dismissed the application, ruling on the following grounds:

Ineffective assistance of counsel for failing to move for dismissal of charges [sic] during Applicant's preliminary hearing.
Ineffective assistance of counsel for failing to object to the indictment because the weight of drugs [sic] did not match the indictment.
Ineffective assistance of counsel for failing to move to sever the charges.
Ineffective assistance of counsel for stipulating to the authenticity of the letter.

         (App. at 520-31, ECF No. 11-2 at 23-34.)

         Petitioner appealed the PCR court's order of dismissal by filing a petition for a writ of certiorari in the South Carolina Supreme Court through PCR counsel. (ECF No. 11-6 at 1.) The sole issue raised in the petition was “Did trial counsel provide ineffective assistance of counsel when he stipulated to Petitioner's handwriting contained in a letter the State introduced at trial?” (Id. at 3.) The Supreme Court denied the petition. (ECF No. 11-8 at 1.)

         FEDERAL HABEAS ISSUES

         The instant Petition for a writ of habeas corpus raises the following issues:

Ground One: Did the trial court err in denying the directed verdict as to whether Petitioner had constructive possession of the drugs?
Ground Two: Trial counsel was ineffective when he stipulated to a letter introduced by the State at trial.
Ground Three: Counsel failed to object in a timely manner.
Ground Four: Counsel failed to motion for the charges to be severed.

(Pet., ECF No. 1 at 5-9.)

         DISCUSSION

         A. Summary ...


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