Manning v. Cartledge, C/A No. 4:14-4721-JMC-TER
| Decision Date | 12 June 2015 |
| Docket Number | C/A No. 4:14-4721-JMC-TER |
| Court | U.S. District Court — District of South Carolina |
| Parties | JOSHUA DAWN MANNING, Petitioner, v. LEROY CARTLEDGE, WARDEN McCORMICK CORRECTIONAL INSTITUTION, Respondent. |
REPORT AND RECOMMENDATION
Petitioner, Joshua Dawn Manning ("Petitioner/Manning"), is an inmate in the custody of the South Carolina Department of Corrections (SCDC). Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 22541 on December 16, 2014. Respondent filed a motion for summary judgment on May 6, 2015, along with a return and supporting memorandum. The undersigned issued an order filed May 7, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to file a response. Petitioner failed to file a response.
A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of CivilProcedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.
Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
In the present case, the Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's motion for summary judgment or the court's orders requiring him to respond. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).
In the alternative, it is recommended that Respondent's motion for summary judgment be granted and this action be dismissed as barred by the statute of limitations. Therefore, the procedural history is set forth for reference purposes.
The procedural history as set forth by the Respondent in his memorandum has not been seriously disputed as Petitioner did not file a response. Therefore, the undersigned will set out the undisputed procedural history as set forth by the Respondent, in part.
The Petitioner is presently confined in the McCormick Correctional Institution of the South Carolina Department of Corrections pursuant to orders of commitment of the Cherokee County Clerk of Court. The Petitioner was indicted at the July 2008 term of the Cherokee County Grand Jury for burglary -1st degree (08-GS-11-606), burglary -2nd degree (08-GS-11-607), grand larceny (08-GS-11-608), kidnapping (08-GS-11-609), armed robbery (08-GS-11-610), and assault and battery of a high and aggravated nature (08-GS-11-668). App.p. 110-132. Petitioner was represented by Brendan Delaney, Esquire. On April 16, 2009, the Petitioner pleaded guilty as indicted to all charges. App.p. 3-45. Petitioner was sentenced by the Honorable J. Mark Hayes II to confinement for a period of sixty (60) years for burglary -1st degree, thirty (30) years each for kidnapping and armed robbery, with the armed robbery sentence running consecutive to the kidnapping sentence, fifteen (15) years for burglary -2nd degree, and ten (10) years each for grand larceny and assault and battery of a high and aggravated nature, with the grand larceny sentence running consecutive to the assault and battery of a high and aggravated nature sentence. All other sentences were to run concurrent. App.p. 44-45.
A timely Notice of Appeal was filed on Petitioner's behalf. App.p. 47. The Petitioner, through counsel Delaney made a response styled "Explanation of Appeal Pursuant to Rule 203(d)(1)(B) stating "there were no issue s raised during the guilty plea; however the client insisted upon his right to appeal. " App.p. 48. The South Carolina Court of Appeals dismissed Petitioner's appeal by written order on May 29, 2009, for failure to identify any issue that is reviewable on appeal. App.p. 50. The Remittitur was sent on June 23, 2009. App.p. 51.
Petitioner then filed an Application for Post-Conviction Relief (PCR) in Cherokee on January 27, 2010. App.p. 52-58. In the application, filed pro se, he alleged:
1. Ineffective Assistance of Counsel.
a. Failure to inform of defenses.
2. Meritorious Defense to all charges.
a. Failure to investigate; Prepare for trial.
3. Failure to Request Continuance.
a. Failure to request continuance; coercion.
The Respondent made its Return on or about June 14, 2010. App.p. 59-63. An evidentiary hearing into the matter was convened on December 6, 2010, at the Spartanburg County Courthouse. App.p. 64-101. Fletcher N. Smith, Jr., Esquire, represented the Applicant. Suzanne H. White, Esquire, of the South Carolina Attorney General's Office, represented the Respondent.
At the hearing, the Petitioner testified on his own behalf and plea counsel Brendan Delany was called by the Respondent. The Honorable J. Derham Cole denied and dismissed the application by written order dated March 29, 2011. App.p. 103-109. The Petitioner filed a timely notice of appeal.
On January 26, 2012, the Petitioner, through appointed appellate counsel, Dayne C. Phillips, Appellate Defender of the South Carolina Commission on Indigent Defense, Division of Appellate Defense made a petition for writ of certiorari. In the Petition, counsel raised thefollowing question:
Did the PCR court err in finding that trial counsel provided effective assistance of counsel where plea counsel abandoned his role as defense counsel by allowing the solicitor to intimidate Petitioner into pleading guilty.
Petition for Writ of Certiorari, p. 2. Respondent, through Assistant Attorney General Suzanne White, made a Return to the petition on May 11, 2012. On January 21, 2014, the South Carolina Court of Appeals entered its order denying the petition for writ of certiorari. Joshua Dawn Manning v. State of South Carolina, Appellate Case Number 2011-191872, Order (S.C.Ct.App. January 21, 2014). The remittitur was issued by the Court of Appeals on February 11, 2014. Respondent asserts that according to the internet Public Records Index of Clerk of Court for Cherokee Country, the remittitur was filed February 14, 2014.
In his pro se Petition for Writ of Habeas Corpus, Petitioner raises the following grounds for relief, quoted verbatim in part:
The federal court is charged with liberally construing the complaints filed by pro se litigants,to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed. R. Civ. P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir.1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (). Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admissions on file, together with ... affidavits, if any." Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems,...
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