United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. Gossett UNITED STATES MAGISTRATE JUDGE
Robert Watkins, 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. 27.) 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. 28.) Petitioner filed a response in opposition (ECF No.
37), Respondent replied (ECF No. 38), and Petitioner filed a
sur-reply (ECF No. 40). 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.
was indicted during the February 2002 term of the Greenville
County Court of General Sessions for armed robbery and
possession of a weapon during the commission of a violent
crime. (App. at 857-56, ECF No. 26-2 at 360-61.) Petitioner
was originally tried on and convicted of those charges in
October 2002 but his conviction was overturned by the South
Carolina Supreme Court on appeal from the denial of
Petitioner's application for post-conviction relief
(“PCR”). (Suppl. App., ECF No. 26-4.)
was tried again on the charges on September 22-24, 2008.
(App. at 99, ECF No. 26-1 at 102.) Petitioner was originally
represented at trial by Stephen Henry, Esquire, but the trial
court granted Petitioner's motion to relieve Henry and
appoint him as standby counsel for the remainder of
trial. (Id. at 99, 237-40, ECF No. 26-1
at 102, 240-43.) Proceeding pro se, Petitioner was convicted
as charged and sentenced to consecutive terms of twenty-five
years' imprisonment for armed robbery and five years'
imprisonment for possession of a weapon during the commission
of a violent crime. (Id. at 627, ECF No. 26-2 at
appealed his convictions and sentences to the South Carolina
Court of Appeals wherein he was represented by Elizabeth A.
Franklin-Best, Appellate Defender, South Carolina Commission
on Indigent Defense. (Id. at 629, ECF No. 26-2 at
132.) The Court of Appeals reversed the conviction on March
8, 2011 in a per curiam opinion, holding that the trial judge
should have recused himself. (Id. at 666, ECF No.
26-2 at 169.) But the Supreme Court reversed the Court of
Appeals. (Id. at 756, ECF No. 26-2 at 259.)
2014, Petitioner filed a PCR application in the Greenville
County Court of Common Pleas. (Id. at 760, ECF No.
26-2 at 263.) A hearing was held on the application in April
2015 wherein Petitioner was represented by R. Mills Ariail,
Jr. Esquire. (Id. at 793, ECF No. 26-2 at 296.) The
PCR court issued an order dismissing the application on
October 2, 2015. (App. at 245, ECF No. 26-2 at 348.)
appealed the denial of his PCR application by filing through
counsel a Johnsonpetition for a writ of certiorari in the
South Carolina Supreme Court. Petitioner was represented by
Laura R. Baer, Appellate Defender, South Carolina Commission
on Indigent Defense. (ECF No. 26-8.) Petitioner filed a pro
se brief in support of the petition. (ECF No. 26-9.) The case
was transferred to the South Carolina Court of Appeals, which
denied the petition for a writ of certiorari. (ECF No.
26-11.) Petitioner now files this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
Petition for a writ of habeas corpus raises the following
issues, as construed by the court:
Ground One: Petitioner claims his Sixth Amendment right to
the effective assistance of counsel was violated when
appellate counsel failed to file a response opposing the
State's motion to recall the Remittitur to the South
Carolina Court of Appeals following its reversal of
Petitioner's convictions on direct appeal.
Ground Two: Petitioner claims his Sixth Amendment right to
the effective assistance of counsel was violated by appellate
counsel's failure to argue that the State's petition
for a writ of certiorari to the South Carolina Supreme Court
should have been thrown out on direct appeal because of the
Attorney General's false basis for having the Remittitur
recalled in the Court of Appeals.
Ground Three: Petitioner claims his Sixth Amendment right to
the effective assistance of counsel was violated by trial
counsel's failure to call witnesses to support his motion
to suppress the search warrant in a pretrial Franks hearing.
Ground Four: Petitioner claims his Sixth Amendment right to
the effective assistance of counsel was violated by trial
counsel's failure to move to suppress certain exhibits at
trial based on an illegal search.
(Pet., ECF No. 1-1 at 1, 15-16, 32.)
Summary Judgment Standard
judgment is appropriate only if the moving party “shows
that there is no genuine dispute as to any material fact and
the [moving party] is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A party may support or refute
that a material fact is not disputed by “citing to
particular parts of materials in the record” or by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of
summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
deciding whether there is a genuine issue of material fact,
the evidence of the non-moving party is to be believed and
all justifiable inferences must be drawn in favor of the
non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). However, “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. at 248.
moving party has the burden of proving that summary judgment
is appropriate. Once the moving party makes this showing,
however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or
other means permitted by the Rule, set forth specific facts
showing that there is a genuine issue for trial. See
Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322.
Further, while the federal court is charged with liberally
construing a petition filed by a pro se litigant to allow the
development of a potentially meritorious case, see, e.g.,
Erickson v. Pardus,551 U.S. 89 (2007), the
requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleadings to allege