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Nesbitt v. Warden

United States District Court, D. South Carolina, Beaufort Division

November 14, 2014

JAMES ARTHUR NESBITT, Petitioner,
v.
WARDEN, LEROY CARTLEDGE, Respondent

James Arthur Nesbitt, Petitioner, Pro se, McCormick, SC.

For Warden Leroy Cartledge, Respondent: William Edgar Salter, III, LEAD ATTORNEY, Donald John Zelenka, S.C. Attorney General's Office, Columbia, SC.

ORDER ADOPTING THE REPORT AND RECOMMENDATION, GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, AND DISMISSING PETITIONER'S HABEAS PETITION

MARY G. LEWIS, UNITED STATES 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. 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, 96 S.Ct. 549, 46 L.Ed.2d 483 (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 5, 2014, and the Clerk of Court entered Petitioner's objections on November 7, 2014. The Court has reviewed the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.

On January 7, 2008, Petitioner pled guilty in state court to possession of cocaine, possession with intent to distribute (PWID) heroin, and two counts of distribution of heroin. The state court sentenced Petitioner to ten years for possession of cocaine, twenty-two years for PWID heroin, and twenty-two years for each count of distribution of heroin, with each of the sentences to run concurrently.

Although Petitioner failed to file a direct appeal, he did file an Application for Post-Conviction Relief (PCR), which the state court denied. Petitioner filed an appeal of that denial, but the South Carolina Court of Appeals denied certiorari. He then filed his § 2254 petition with this Court. As is relevant here, he later filed an Amended Petition setting forth the following allegations:

Ground One: The PCR court unreasonably applied the Strickland test when it failed to find plea counsel ineffective in his investigation.
Ground Two: The South Carolina Court of Appeals erred in dismissing Petitioner's Johnson petition without ruling on the Sixth Amendment violation.
Ground Three: The PCR court erred in failing to find plea counsel ineffective for not insuring that Petitioner's guilty plea was knowingly, voluntarily and intelligently entered into.
Ground Four: The PCR court [erred by] denying the Petitioner's open court motion for continuance.
Ground Five: PCR counsel was ineffective during the course of Petitioner's collateral attack on his guilty plea conviction and sentence, ...

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