Duncan v. South Carolina, State of

Filing 63

ORDER adopting 60 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 42 Motion for Summary Judgment; denying 18 Motion for Summary Judgment; denying 19 Motion "for the Enforcement/Modific ation as an Supplemental Injunction by Supporting Affidavit"; dismissing as moot 25 Motion for Summary Judgment; denying 31 Motion "Prior Bad Acts and Motion to this Court entering Judgment for Summary Judgment at Holding Respondent for Contempt". The Court DISMISSES the habeas petition. A certificate of appealability is DENIED. Signed by Honorable Richard M Gergel on 2/9/2016.(ssam, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Jimmy Duncan,

)
)
)
)
)

Petitioner,
vs.

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No.:

2:14~cv~4048~RMG

ORDER

Warden, Allendale Correctional Institution, )
)

Respondent.

)

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 60), recommending that the Court grant Respondent's supplemental
motion for summary judgment (Dkt. No. 42), dismiss Respondent's first motion for summary
judgment as moot (Dkt. No. 25), and deny Petitioner's remaining outstanding motions (Dkt. Nos.
18, 19,31). For the reasons stated below, the Court ADOPTS the R & R as the order of the
Court.
Petitioner has a relatively lengthy history of involvement with the state court and prison
system dating back to December 6, 2000, when he pled guilty to
conduct with a minor.

(Dkt. No.

42~3

at 157-60).

first~degree

criminal sexual

He was sentenced to fifteen years'

imprisonment, to be suspended upon the service of five years' probation, completion of sexual
abuse counseling, and the completion of high school. (Dkt. No. 42-3 at 157-60).

Petitioner

violated his probation in 2003 when he was found guilty of third~degree burglary, and he was
subsequently sentenced to prison. (Dkt. No. 42-3 at 138-39). After his release from prison,
Petitioner was placed on community supervision as a result of the 2000 criminal sexual conduct
conviction. (Dkt. No.

42~12).

In 2008, Petitioner pled guilty to failing to register as a sex offender, was sentenced to
ninety days' imprisonment, and was returned to probation. (Dkt. Nos. 42-1 at 19, 42-8 at 1). In
January 2010, Petitioner pled guilty to a possession ofless than one gram of cocaine base, and a
jury found him guilty of furnishing or possessing contraband in a county or municipal prison.
(Dkt. No. 26-1 at 25-250). He was sentenced to time served on the possession plea and three
years on the conviction for furnishing or possessing contraband in county or municipal prison.

(Id at 255-56).
In January 2012, Petitioner was again found guilty of failing to register as a sex offender
and was sentenced to 366 days' imprisonment. (Dkt. No. 42-1 at 95). On May 19, 2014,
Petitioner's community supervision was revoked for failure to comply with the program's
conditions, and he was sentenced to one years' imprisonment. (Dkt. No. 42-11 at 1). And on
October 17,2014, he filed this petition for writ of habeas corpus. (Dkt. No.1).
Despite its timing, the habeas petition before the Court does not relate to his 2014
imprisonment. Instead, it relates to the one-year sentence he served for his 2012 conviction for
failure to register as a sex offender, second offense. (Dkt. No. 42-1 at 95). Because Petitioner is
no longer in custody and is not subjected to any collateral consequences (such as probation) for
the 2012 conviction, the Court may not entertain his habeas petition. See Spencer v. Kemna, 523
U.S. 1, 7-9 (1998).
Having fully consider the R & R, the record, and the relevant legal standards, the Court
finds that the Magistrate Judge ably and accurately set forth the legal and factual issues in this
matter and correctly concluded that the Respondent's summary judgment motion should be
granted. Therefore, the Court ADOPTS the R & R (Dkt. No. 21), GRANTS Respondent's
supplemental motion for summary judgment (Dkt. No. 42), DISMISSES Respondent's first

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motion for summary judgment as moot (Dkt. No. 25), DENIES Petitioner's remaining
outstanding motions (Dkt. Nos. 18, 19,31), and DISMISSES the habeas petition.
Certificate of Appealability

The governing law provides that:
(c)(2) A certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this Court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable.

See Miller-El v.

Cockrell, 537 U.S. 322,336 (2003); Slack v. McDaniel, 529 U.S. 473,484 (2000); Rose v. Lee,

252 F.3d 676,683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate
of appealability has not been met. Therefore, a certificate of appealability is DENIED.
AND IT IS SO ORDERED.

United States District Court Judge
February~, 2016
Charleston, South Carolina

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