Robinson v. Warden, C/A No.: 4:15-cv-3703-HMH-TER

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: Thomas E. Rogers, III United States Magistrate Judge
• Decision Date: 05 May 2016
• Parties: BRIAN O'NEIL ROBINSON, Petitioner, v. WARDEN, RIDGELAND CORRECTIONAL INSTITUTION, Respondent.
• Docket Number: C/A No.: 4:15-cv-3703-HMH-TER

BRIAN O'NEIL ROBINSON, Petitioner,
v.
WARDEN, RIDGELAND CORRECTIONAL INSTITUTION, Respondent.

C/A No.: 4:15-cv-3703-HMH-TER

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

May 5, 2016

Report and Recommendation

Petitioner, Brian O'Neil Robinson (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254¹ on September 14, 2015. (Doc. #1). Respondent filed a motion for summary judgment on December 21, 2015, along with a return and memorandum. (Docs. #19 and #20). The undersigned issued an order filed December 22, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4^th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (Doc. #21). Petitioner filed a response on January 28, 2016, and an amended response on February 1, 2016.

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PROCEDURAL HISTORY

The procedural history as set forth by the Respondent has not been seriously disputed by the Petitioner in his response. Therefore, the undersigned will set out the undisputed procedural history, in part, as set forth by the Respondent.

Petitioner is currently incarcerated in Ridgeland Correctional Institution pursuant to an order of commitment from the Clerk of Court of Spartanburg County. Petitioner was indicted at the October 2011 term of the Spartanburg County Grand Jury for felony DUI resulting in death and reckless homicide. Petitioner was represented by Robert Hall, Esquire.

Following jury selection on January 30, 2012, Petitioner pleaded guilty to felony DUI in death² before the Honorable Roger L. Couch . Judge Couch sentenced Petitioner to fifteen years imprisonment. Petitioner did not appeal his conviction and sentence.

PCR

On August 23, 2012, Petitioner filed an application for post-conviction relief ("PCR") raising the following issues:

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1. Ineffective assistance of counsel:

a. Counsel failed to give Applicant Rule (5) Discovery; and
b. Counsel failed to investigate the fact that the alleged victim was struck by another vehicle.

(App. Pp. 106-112).

The State made its return to the application on August 19, 2013. J. Brandt Rucker, Esquire, represented Petitioner in the action. Assistant Deputy Attorney General Suzanne H. White represented the State. An evidentiary hearing was held on October 3, 2013, before the Honorable J. Derham Cole, Circuit Court Judge. Petitioner testified on his own behalf. The State presented testimony from plea counsel, Mr. Hall. By order filed February 20, 2013, Judge Cole denied and dismissed the PCR application with prejudice.

PCR APPEAL

Petitioner appealed the PCR court's order of dismissal by filing a petition for writ of certiorari in the Supreme Court of South Carolina. Petitioner was represented by Wanda H. Carter of the South Carolina Office of Appellate Defense. Petitioner presented the following issue:

Trial counsel erred in failing to investigate into the defense that petitioner's actions did not proximately cause the death of the motorcyclist in the case because there was a second collision from another motorist at the scene who created an intervening action, which in turn meant that petitioner was not guilty of felony DUI.

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(Petitioner for Writ of Certiorari).

The State made its return to the petition. The South Carolina Supreme Court denied the petition on April 9, 2015, and issued the remittitur to the Spartanburg County Clerk of Court on April 27, 2015.

Petitioner filed a second PCR application (2015-CP-42-2534) on May 26, 2015, in which he asserted the following allegations:

1. Ineffective assistance of counsel:

a. Attorney failed to file direct appeal;
b. Attorney did not pursue investigation witnesses;
c. Attorney did not pursue attaining rules;
d. Attorney did not pursue evidence of consent form;
e. Attorney did not pursue the compliance of plea agreement;
f. Attorney did not investigate that victim was struck by another vehicle;
g. Attorney did not pursue to subpoena witnesses;
h. Attorney failed to object to the illegal statement of trial judge, "I'm talking now, sir," meaning be quiet. When I tried to inform the courts that I wanted to back out of the plea because my attorney promised me ten (10) years but I was sentenced to 15 years after being coerced to abort my original defense which was to go to trial;
i. Trial lawyer lied to me about the 10 year plea.

Respondent filed a Return and Motion to Dismiss on October 14, 2015, arguing that the 2015 PCR application should be summarily dismissed as successive to his prior PCR application. At the time of the filing of the return and memorandum, Respondent asserted that an order had not been issued in his then current PCR action.

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HABEAS ALLEGATIONS

Petitioner raised the following allegations in his petition, quoted verbatim:

GROUND ONE: Ineffective Assistance of Counsel.

Supporting facts: 1) Trial counsel erred in failing to investigate into the fact that the defense, that petitioner's action did not proximately cause the death of the motorcyclist in the case.
2) Counsel failed to give applicant Rule (5) discovery.
3) Counsel failed to interview, and subpoena the witnesses involved in the accident.
4) Counsel failed to have charges dismissed on lack of evidence.

GROUND TWO: Ineffective Assistance of Counsel

Supporting facts: 1) Counsel failed to advise defendant of plea and its content Appropriately.
2) Counsel failed to perfect defendant Appellant rights

(Habeas Petition) (errors in original).

STANDARD FOR SUMMARY JUDGMENT

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

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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

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non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4^th 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 (4^th 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 (4^th 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 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). 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, Inc., 33 F.3d 390 (4^th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4^th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

STANDARD OF REVIEW

In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the

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requirements set forth in 28 U.S.C. § 2254. Under § 2254(d),

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the State court proceeding.

Thus, a writ may be granted if a state court "identifies the correct principle from [the Supreme] Court's decisions but unreasonably applies that principle of law" to the facts of the case. Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)). However, "an 'unreasonable application of federal law is different from an incorrect application of federal law,' because an incorrect application of federal law is not, in all instances, objectively unreasonable." Id. "Thus, to grant [a]...