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Watkins v. Lewis

United States District Court, D. South Carolina

September 30, 2019

Robert Watkins, Petitioner,
v.
S. Lewis, Warden, Respondent.

          REPORT AND RECOMMENDATION

          Paige J. Gossett UNITED STATES MAGISTRATE JUDGE

         Petitioner 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).[1] 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 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.)

         Petitioner 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.[2] (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 130.)

         Petitioner 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.)

         In 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.)

         Petitioner appealed the denial of his PCR application by filing through counsel a Johnson[3]petition 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.

         FEDERAL HABEAS ISSUES

         The 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.)

         DISCUSSION

         A. Summary Judgment Standard

         Summary 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).

         In 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.

         The 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 ...


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