United States District Court, D. South Carolina, Charleston Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION, GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, DISMISSING PETITIONER'S HABEAS PETITION WITH PREJUDICE, AND DENYING PETITIONER'S REQUEST FOR A CERTIFICATE OF APPEALABILITY
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 November 4, 2014, and the Clerk of Court entered Petitioner's objections on December 1, 2014. The Court has reviewed the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.
Petitioner is presently incarcerated in Broad River Correctional Institution, a part of the South Carolina Department of Corrections. A Darlington County jury convicted Petitioner of kidnaping, burglary in the first degree, possession of a weapon during the commission of certain crimes, murder, and possession of 28 grams or less of marijuana or 10 grams or less of hashish. The state sought the death penalty for Petitioner but, because the jury deadlocked, the trial court sentenced him to concurrent terms of incarceration as follows: life without the possibility for parole for murder, life for burglary in the first degree, and thirty days for possession of marijuana. Under South Carolina law, the trial court did not sentence Petitioner for the kidnaping conviction because it sentenced him for the murder conviction. See § 16-3-910 ("Whoever shall unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any other person by any means whatsoever without authority of law, except when a minor is seized or taken by his parent, is guilty of a felony and, upon conviction, must be imprisoned for a period not to exceed thirty years unless sentenced for murder as provided in Section 16-3-20.").
Petitioner filed an appeal of his conviction, which the South Carolina Court of Appeals dismissed. Petitioner then filed a post-conviction relief application (PCR) and an amended application, but the PCR court denied and dismissed his application. Thereafter, Petitioner filed a petition for writ of certiorari seeking review of the PCR court's decision. The South Carolina Court of Appeals denied his petition. Petitioner then filed his § 2254 petition with this Court.
In his § 2254 petition, Petitioner raises the following three grounds for relief:
Ground One: Ineffective Assistance of Trial Counsel. Supporting Facts: Petitioner states that Trail Assistance Counsels were ineffective by, Failing to investigate the illegal Search and Seizure obtained by the use of falsifying evidence to an Unconstitutional Search and Seizure, False imprisonment and the Conviction was by the Court and obtained through of false evidence. Ground Two: Prosecutorial Misconduct-Kernard Redmond.
Supporting Facts: Petitioner States that Prosecutor did Perjury during his Closing Argument to the Jury, stating that the D.N.A. from the Victim was found on Petitioner Kitchen Floor. When the State Expert D.N.A. forensic Analyst agent (Ms. Riley) testified that there wasn't any D.N.A. found by the Victim in Petitioner apartment kitchen Floor. There was only a mixture between James Williams and girlfriend Charmain Bolton.
Ground Three: Defective Indictment. Supporting Facts: Petitioner states that Prosecutor Kernard Redmond did Process, a Defective Indictment which the indictment showed a true-bill by the grand Jury foreperson on Oct 14, 2004 when grand Jury Convened upon their Oath on Oct 18, 2004.
Petition 6-9 (errors in original and not corrected).
The Magistrate Judge suggests that Grounds One and Two of Petitioner's habeas petition are procedurally barred. The Court agrees.
Procedural default occurs when a habeas petitioner fails to exhaust his state remedies and the state court would now find the claims procedurally barred. Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001). When a procedural default occurs, federal review is barred unless the petitioner can show cause for his default and resulting prejudice, or actual innocence. Harris v. Reed, 489 U.S. 255, 262 (1989). The petitioner may also avoid the procedural bar by "prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice." Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008).
Concerning Ground One, Petitioner's "Ineffective Assistance of Trial Counsel" argument, although Petitioner raised the issue in his original PCR application, the PCR court did not rule on the claim in its order and it was not raised in the PCR appeal. Further, Petitioner has established neither cause for not complying with the state rule, actual prejudice, actual innocence, nor that the Court's failure to consider this claim will result in a fundamental ...