Smith v. Warden
Decision Date | 08 February 2019 |
Docket Number | C/A No. 0:18-1442-RMG-PJG |
Court | U.S. District Court — District of South Carolina |
Parties | David I. Smith, Petitioner, v. Warden, Lee Correctional Institution, Respondent. |
Petitioner David I. Smith, 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. 22.) 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. 24.) Petitioner filed a response in opposition (ECF No. 26), and Respondent replied (ECF No. 27).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.
Petitioner was indicted in May 2012 in Charleston County for attempted murder (2012-GS-10-2533). (App. at 15-16, ECF No. 21-1 at 17-18.) Petitioner was represented by Luke Malloy, Deputy Public Defender. (App. at 1, ECF No. 21-1 at 3.) On July 10, 2014, Petitioner pled guiltyto assault and battery of a high and aggravated nature ("ABHAN") before the Honorable Roger M. Young, Sr., Circuit Court Judge. (App. at 1-12, ECF No. 21-1 at 3-14.) The court sentenced Petitioner to twenty years' incarceration with credit for time served. (App. at 12, ECF No. 21-1 at 14.)
On July 18, 2014, plea counsel filed a motion to reconsider Petitioner's sentence. (App. at 18, ECF No. 21-1 at 20.) On November 17, 2014, the court held a hearing on the motion to reconsider, but reaffirmed the original sentence of twenty years. (App. at 19-28, ECF No. 21-1 at 21-30.) Petitioner did not appeal.
On March 31, 2015, Petitioner filed a pro se application for post-conviction relief ("PCR"). (Smith v. State, 2015-CP-10-1855, App. at 33-39, ECF No. 21-1 at 35-40.) In his PCR application, Petitioner alleged the following issues:
(App. at 36, ECF No. 21-1 at 38.) The State filed a return. (App. at 41-45, ECF No. 21-1 at 43-47.) On August 1, 2016, the PCR court held an evidentiary hearing at which Petitioner appeared and testified. (App. at 47-75, ECF No. 21-1 at 49-77.) Petitioner was represented by Christopher L. Murphy, Esquire. (App. at 47, ECF No. 21-1 at 49.) At the conclusion of the hearing, the PCR courtasked PCR counsel to clarify what grounds were being raised by his client, and PCR counsel responded as follows:
(App. at 73, ECF No. 21-1 at 75.) The PCR court took the matter under advisement. (App. at 74, ECF No. 21-1 at 76.) In an order filed August 4, 2016, the PCR court denied and dismissed with prejudice the PCR application. (App. 76-80, ECF No. 21-1 at 78-82.)
Petitioner appealed. On September 15, 2017, Kathrine H. Hudgins, Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a Johnson petition for writ of certiorari on Petitioner's behalf.2 (Smith v. State, App. Case No. 2016-001823, ECF No. 21-2.) The following issue was presented in the Johnson petition:
Did the PCR judge err in finding that Petitioner was not entitled to a belated direct appeal, pursuant to White v. State, from his plea of guilty to assault and battery of a high and aggravated nature when Petitioner received the maximum sentence and filed a motion to reconsider sentence which was denied?
(ECF No. 21-2 at 3.) Thereafter, Petitioner filed a pro se response to the Johnson petition raising the following issues:
(ECF No. 21-3 at 4.) On April 23, 2018, the Supreme Court of South Carolina denied the petition and granted PCR appellate counsel's request to withdraw. (ECF No. 21-4.) The remittitur was issued on May 9, 2018, and was filed in the Charleston County Court on May 11, 2018. (ECF No. 21-5 at 1-2.)
The Petition for a writ of habeas corpus raises the following issues, quoted verbatim:
(Pet., ECF No. 1 at 5, 6, 8, 9, 11) (errors in original and internal citations omitted).3
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, Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party...
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