United States District Court, D. South Carolina, Charleston Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION, GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, AND DISMISSING PETITIONER'S HABEAS PETITION WITH PREJUDICE
MARY G. LEWIS, District Judge.
This case was filed as a 28 U.S.C. § 2254 action. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Respondent's motion for summary judgment be granted and Petitioner's habeas petition be dismissed with prejudice. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on September 25, 2014, but Petitioner failed to file an objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985).
Petitioner is a state prisoner currently incarcerated in the Perry Correctional Institution of the South Carolina Department of Corrections. A jury convicted Petitioner of possession with intent to distribute crack cocaine and the court sentenced him to twenty-eight years of imprisonment. The South Carolina Court of Appeals affirmed Petitioner's conviction. Thereafter, he filed a state Post-Conviction Relief (PCR) action, which the court dismissed with prejudice. The South Carolina Court of Appeals affirmed the dismissal.
Petition then filed his § 2254 petition with this Court. In his petition, he makes the following claims:
GROUND ONE: INEFFECTIVE ASSISTANCE OF COUNSEL.
SUPPORTING FACTS: Trial counsel was ineffective for not making the necessary inquires about petitioner's prior record and did not object to the presentation of his record by the solicitor. Criminal defense attorneys have a duty to undertake a reasonable investigation, which at a minimum includes interviewing potential witnesses and making an independent investigation of the facts and circumstances of the case.
GROUND TWO: PETITIONER'S 6TH AND 14TH AMENDMENT STATE AND FEDERAL CONSTITUTIONAL RIGHTS WERE VIOLATED.
SUPPORTING FACTS: Due to counsel's deficiency petitioner was unable to confront key witness(es); Petitioner was sentenced on erroneous information and limited to subpar representation.
GROUND THREE: V[E]RACITY OF ARRESTING OFFICER'S TESTIMONY.
SUPPORTING FACTS: The arresting officer was the sole witness in this case. Applicant request[ed] a " Franks " hearing to show the Court that the testimony of the officer was not truthful in his presentation of the facts.
According to 28 U.S.C. § ...