Walton v. Warden

• Decision Date: 31 October 2018
• Docket Number: Civil Action No. 9:18-640-MGL-BM
• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Parties: Braquette Wykina Walton, #353118, Petitioner, v. Warden, Graham Correctional Institution, Respondent.

Braquette Wykina Walton, #353118, Petitioner, v. Warden, Graham Correctional Institution, Respondent.

Civil Action No. 9:18-640-MGL-BM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

October 31, 2018

REPORT AND RECOMMENDATION

The pro se Petitioner brought this action seeking relief pursuant to Title 28, United States Code, Section 2254. On July 5, 2018, the Respondent filed a motion for summary judgment. As the Petitioner is proceeding pro se, a Roseboro Order was entered by the Court on July 6, 2018, advising Petitioner of the importance of a dispositive motion and of the need for her to file an adequate response. Petitioner was specifically advised that if she failed to file a properly supported response, the Respondent's motion may be granted, thereby ending her case.

However, notwithstanding the specific warning and instructions as set forth in the Court's Roseboro order, and receiving two extensions of time to respond, the Petitioner has failed to respond to the motion. Therefore, Petitioner meets all of the criteria for dismissal under Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4^th Cir. 1982).¹ Accordingly, this action should be dismissed with prejudice for lack of prosecution. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Rule 41(b), Fed.R.Civ.P.

Alternatively, if the Court determines that this Petition should not be dismissed for failure to prosecute, it should still be dismissed with prejudice on the merits, as is discussed more fully hereinbelow.

Procedural History

Petitioner was indicted in York County in February 2012 for murder [Indictment No. 2012-GS-46-865], exploitation of a vulnerable adult [Indictment No. 2012-GS-46-866], four counts of forgery and uttering [Indictment Nos. 2012-GS-46-868, -869, -870, and -871], and abuse or neglect of a vulnerable adult resulting in death [Indictment No. 2012-GS-16-883]. In August 2012, the grand jury indicted the Petitioner on four additional counts of forgery and uttering [Indictment Nos. 2012-GS-46-867, -3016, -3017, and -3018] and for burglary in the first degree [Indictment No. 2012-GS-46-3015]. Petitioner was represented on these charges by Phil Smith, Esquire, and Ashley Anderson, Esquire, and following a jury trial on October 29-November 1, 2012, was found guilty as charged. (R.pp. 1-991). Petitioner was then sentenced to life imprisonment for murder, thirty (30) years imprisonment for burglary, five (5) years imprisonment on each count of forgery and uttering, and five (5) years for exploitation of a vulnerable adult, all sentences to be served concurrently. (R.pp. 1002-1004). Additionally, on November 5, 2012, after having taken defense counsels' post-trial motion under advisement, the trial judge reconvened the sentencing hearing and sentenced Petitioner to thirty (30) years imprisonment for abuse or neglect of a vulnerable adult resulting in death, also to be served concurrently. (R.pp. 1005-1007).

Petitioner filed a timely appeal in which she was represented by Susan B. Hackett, Esquire, of the South Carolina Commission on Indigent Defense. Petitioner's counsel filed an Anders² brief seeking to be relieved, and raising the following issue:

The trial judge erred in failing to instruct the jury as to voluntary manslaughter, a lesser included offense of murder, because [Petitioner's] conduct was precipitated by the deceased angrily hitting [Petitioner] with a telephone and pulling [Petitioner's] hair, which provided evidence that [Petitioner] acted during the sudden heat of passion based upon sufficient legal provocation.

See Court Docket No. 16-4, p. 4.

Petitioner also filed a pro se Anders brief raising the following additional issues:

Ground One: DNA that was not tested and what was tested by SLED;

Ground Two: The statement of Linda Roch stating she checked on [victim] and then denied that she did;

Ground Three: The fact that there was no handwriting expert to verify [victim's] handwriting only accepted [victim's] daughter to verify signature;

Ground Four: Evidence was collected a hand print and hair from telephone which was never run against anyone else;

Ground Five: The timeline of Nov. 12, 2011 from the nurses on call: Kayla Larson, [Teresa] Stagner, Linda Roach; and

Ground Six: The unsigned statement turned in by Det Stokes and Det Smith.

See Court Docket No.16-5, p. 1 [Errors in Original].

On November 5, 2014, the South Carolina Court of Appeals granted counsel's motion to be relieved and dismissed the appeal. State v. Walton, 2014-UP-377 (S.C.Ct.App. Nov. 5, 2014). See Court Docket No. 16-6. The Petitioner did not seek a rehearing or file for certiorari to the South Carolina Supreme Court, and the Court of Appeals thereafter issued the Remittitur to the York County Clerk of Court on November 21, 2014. See Court Docket No. 16-7.

On March 24, 2015, Petitioner filed an application for post-conviction relief ("APCR") in state circuit court. See Walton v. State of South Carolina, No. 2015-CP-46-889. (R.pp. 1045-1051). Petitioner listed the following issues in her Petition:

Ground One: Ineffective assistance of trial counsel.

Ground Two: New Evidence.

Ground Three: Failure to grant a change of venue.

(R.p. 1048).

Petitioner was represented in his APCR by Leah B. Moody, Esquire, and an evidentiary hearing was held on Petitioner's application on April 19, 2016. (R.pp. 1059-1113). The PCR court found that Petitioner pursued the following specific issues at the PCR hearing:

Ground One: Ineffective assistance of trial counsel

a. Failure to research law.

b. Failure to submit or object jury charge.

c. Failure to develop and present defense.

d. Faliure to make proper motions.

e. Ineffective agreement.

Ground Two: Newly Discovered Evidence.

Ground Three: Failure to grant a change of venue.

(R.p. 1116).

The PCR judge denied relief on the APCR in its entirety by written order filed July 13, 2016. (R.pp. 1114-1124).

Petitioner filed a timely appeal of the PCR court's order. Petitioner was represented on appeal by Appellate Defender Kathrine J. Hudgins of the South Carolina Commission on Indigent Defense, who filed a Johnson³ petition seeking to be relieved and raising the following issue:

Was trial counsel ineffective in failing to argue, pre-trial, that prosecuting Petitioner for both murder and abuse or neglect of a vulnerable adult resulting in death violates the Double Jeopardy Clause's protection against multiple punishments for the same offense?

See Petition, p. 1 (Court Docket No. 16-8).

Although Petitioner was advised of her right to file a pro se response to the Petition, Petitioner did not submit a pro se response. See Court Docket No. 16-9. On October 6, 2017, the Supreme Court of South Carolina denied the petition for writ of certiorari and granted counsel's withdrawal request. See Court Docket No. 16-9. See Walton v. Petitioner, v. State of South Carolina, Appellate Case No. 2016-001570, Order (S.C. Oct. 6, 2017) (Court Docket No. 16-10). The Remittitur was sent down on October 24, 2017. See Court Docket No. 16-11.

In her Petition for writ of habeas corpus filed in this United States District Court, Petitioner raises the following issues:

Ground One: Double Jeopardy Clause

Supporting Facts: Was sentence[d] for both murder and abuse or neglect of a vulnerable adult resulting in death violated the prohibition against double jeopardy.

Ground Two: Ineffective Counsel = The Sixth Amendment Supporting Facts: Trial counsel was ineffective in failing to argue at pretrial that prosecuting Petitioner for both murder and abuse or neglect of a vulnerable adult resulting in death violated the prohibition against double jeopardy.

See Petition, pp. 6, 8 [Errors in Original].

Discussion

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, while the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case; See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972); 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, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).

Here, after careful review of the record and the Petition, the evidence in the record, and the arguments set forth in Respondent's memorandum, the undersigned finds for the reasons discussed hereinbelow that the Respondent is entitled to summary judgment in this case.

I.

In Ground One of his Petition, Petitioner contends that she was subjected to double jeopardy because her sentence for both murder and abuse or neglect of a vulnerable adult resulting in death violated the prohibition against double jeopardy. Respondent argues that this issue must be dismissed because it was not properly preserved for review by this Court because it was not raised by Petitioner in her direct appeal. However, Petitioner's direct appeal was reviewed pursuant to an Anders review, and the South Carolina Supreme Court has held that:

. . . according to Anders, the reviewing court is obligated to make a full examination of the proceedings on its own. Anders. After such an examination, if the reviewing court agrees with the attorney, it may dismiss the appeal or proceed to a decision on the merits. Id. On the other hand, if the court disagrees with the attorney's analysis of the appeal, it must afford the defendant "the assistance of counsel to argue the appeal." Id. at 744. The purpose of filing a brief under Anders is to ensure the merits of the appeal are not overlooked. The court has to

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