United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Richard Brown (“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 to
Dismiss. ECF Nos. 56, 57. On May 29, 2019, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
the court advised Petitioner of the Motion to Dismiss,
dismissal procedures, and the possible consequences if he
failed to respond adequately to Respondent's Motion. ECF
No. 58. On June 21, 2019, Petitioner filed a Response in
Opposition to Respondent's Motion to Dismiss. ECF No. 61.
carefully considered the parties' submissions and the
record in this case, the undersigned recommends that
Respondent's Motion to Dismiss, ECF No. 57, be granted,
and this Petition be dismissed.
is currently incarcerated in the Kirkland Correctional
Institution of the South Carolina Department of Corrections.
On April 5, 2013, Petitioner appeared before Judge Michael G.
Nettles for a plea hearing. App. 1-26. According to the facts
presented by the solicitor, Petitioner and his co-defendants
went to the home of the victim to rob him. App. 7-8. After
the group entered the home, Petitioner went to the back
bedroom and shot the victim five times. App. 9, 13.
Petitioner entered a guilty plea to first degree burglary and
murder. App. 13-17. Judge Nettles sentenced Petitioner to
life. App. 26-27. Petitioner was 15 at the time of the
incident and 16 on the date of the sentencing. App. 25.
Petitioner did not file a direct appeal. ECF No. 56-6 at 52.
filed an application for Post-Conviction Relief
(“PCR”) on January 10, 2014. (2014-CP-21-75).
App. 29-34. Petitioner asserted he was being held in custody
unlawfully for: “Applicant's sentence of life
without parole imposed for a crime he committed when he was a
juvenile violates the Eighth Amendment to the U.S.C No.
Evidence .” App. 31. On November 10, 2015, Petitioner
filed an amendment to his PCR application in which he alleged
ineffective assistance of counsel concerning counsel's
failure to advise him of possible sentences, evidence, and
procedures of trial that resulted in an unintelligent and
unknowing decision to plead guilty. App. 90-91. A motion
hearing convened on November 9, 2016, before the Honorable D.
Craig Brown. App. 49-88. Petitioner was present and
represented by Attorney Jonathan Waller, and Assistant
Attorney General Lindsey A. McCallister, appeared on behalf
of the State. See Id. The PCR court denied and
dismissed Petitioner's PCR Application with prejudice in
an order filed on December 30, 2016. App. 92-101.
Defender Wanda H. Carter, who represented Petitioner on the
appeal from the denial of his PCR, filed a Petition for Writ
of Certiorari in the South Carolina Supreme Court on November
6, 2017. ECF No. 56-7. The petition presented the following
issue: “Trial counsel erred in failing to object to
petitioner's life sentence for his burglary conviction
because this violated the Eighth Amendment”
Id. at 3. On September 21, 2018, the South Carolina
Supreme Court denied the Petition for Writ of Certiorari. ECF
No. 56-8. The remittitur was issued on October 10, 2018. ECF
Petitioner's PCR application was pending, Petitioner
filed a motion for resentencing in state court on July 6,
2016. ECF No. 56-2. On July 11, 2016, the South Carolina
Supreme Court issued an order vesting state court Judge
DeAndrea G. Benjamin with exclusive jurisdiction over
Petitioner's Motion for Resentencing. ECF No. 56-3. On
August 22, 2016, Judge Benjamin appointed the Florence County
Public Defender to represent Petitioner in all matters
related to his resentencing motion. ECF No. 56-4.
Petitioner's resentencing motion is currently pending.
ECF No. 56-5.
filed his habeas petition on December 13, 2018, which he
amended on May 1, 2019. ECF Nos. 1, 53.
Federal Habeas Issues
raises the following issues in his Amended Federal Petition
for a Writ ...