United States District Court, D. South Carolina, Charleston Division
RICHARD MARK GERGEL, District Judge.
This matter comes before the Court on the Report and Recommendation (R & R) of the Magistrate Judge (Dkt. No. 33), recommending that Respondent's Motion for Summary Judgment be granted. For the reasons stated below, the Court ADOPTS the R & R. Accordingly, Respondent's Motion for Summary Judgment (Dkt. No. 24) is GRANTED.
Petitioner is an inmate with the South Carolina Department of Corrections. After a two-day trial in February of 2004, Petitioner was found guilty of attempted burglary in the first degree and sentenced to nineteen (19) years in prison. (Dkt. No. 25-2 at 62, 68). Petitioner appealed, and the South Carolina Court of Appeals dismissed the appeal and denied Petitioner's motion for rehearing. (Dkt. Nos. 25-6, 25-9).
Petitioner filed a PCR application, which was denied in its entirety on May 5, 2009. (Dkt. No. 25-2 at 128-34). Petitioner appealed, but the South Carolina Supreme Court dismissed the appeal for failure to show that the notice of appeal was timely served on respondent. (Dkt. No. 25-18). Petitioner filed a second pro se PCR application. With consent of the parties the PCR judge issued an order dismissing the second PCR application but granting Petitioner leave to file a belated petition seeking appellate review of his first PCR application. (Dkt. No. 25-2 at 147-49). On March 7, 2013, the South Carolina Court of Appeals denied Petitioner's petition for writ of certiorari from the final order in Petitioner's first PCR action. (Dkt. No. 25-24).
Petitioner then filed this federal habeas corpus petition on April 15, 2013, raising the following grounds for relief, quoted verbatim:
Ground One: Insufficient of the Indictment/Ineffective Assistance of Counsel
Ground Two: Prior Bad Act/Ineffective Assistance of Counsel
Ground Three: Impeach state witness prior testimony on cross-examination of identifying defendant in out-of-court
Ground Four: Ineffective Assistance of Counsel/Insufficient of the chain of custody.
(Dkt. No. 1 at 5-9).
The Magistrate Judge recommended that summary judgment be granted to Respondent, finding (1) that Ground Three and part of Ground Four were not properly preserved in his state court proceedings, barring federal habeas review and (2) with regard to Ground One, Ground Two and part of Ground Four, Petitioner failed to show that the PCR court's rulings resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law or that the PCR court rulings were based on an unreasonable determination of the facts in light of the State court proceeding. (Dkt. No. 33). Petitioner filed timely objections to the R&R. ( See Dkt. No. 36).
II. Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the R & R or specified proposed findings or recommendations to which objection is made. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed.R.Civ.P. 72(b). As to portions of the R & R to which no specific objection has been made, this Court "must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Id. (quoting Fed.R.Civ.P. 72 advisory committee note). Moreover, in the ...