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Brown v. Davis

United States District Court, D. South Carolina

August 7, 2019

Kendris Richard Brown, Petitioner,
v.
Willie D. Davis, Warden of Kirkland Reception and Evaluation Center, Respondent.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE

         Kendris 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.

         Having 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.

         I. Background

         Petitioner 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.

         II. Procedural History

         Petitioner 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.

         Appellate 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 No. 56-9.

         While 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.

         Petitioner filed his habeas petition on December 13, 2018, which he amended on May 1, 2019. ECF Nos. 1, 53.

         III. Discussion

         A. Federal Habeas Issues

         Petitioner raises the following issues in his Amended Federal Petition for a Writ ...


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