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Agnew v. McCall

United States District Court, D. South Carolina, Rock Hill Division

January 15, 2015

LABRONTAE S. AGNEW, Petitioner,
v.
MICHAEL McCALL, Respondent.

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

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 denied. 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 December 10, 2014, and the Clerk of Court entered Petitioner's objections on January 9, 2015. The Court has carefully considered the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.

Petitioner's objections consist generally of nothing more than a mishmash of arguments that the Magistrate Judge has already considered and rejected. Inasmuch as the Court agrees with the Magistrate Judge's treatment of those issues in the Report, it need not repeat the analysis here. Therefore, the Court will overrule these objections.

Just one of Petitioner's objections merits discussion here. In Petitioner's objections, he asserts the following:

During [the] PCR hearing[, ] Petitioner was suppose[d] to be represented by Kenneth Shabel[, ] but when [the] hearing started Shabel was not present and Agnew was not informed by Shabel that he would not attend [the] hearing. Agnew was notified exactly when trial started that John Holland would represent him. [This] shows that Petitioner Agnew thought the attorney present at [the] time was his court appoint[ed] attorney Kenneth Shabel, then found out by [the] court that the lawyer present at [the] time was John Holland. That is why Agnew did not raise issues and wasn't informed properly.

Petitioner's Objections 3. But, according to the transcript from the PCR hearing, here is what actually occurred:

THE COURT: Are you Labrontae Agnew?
THE APPLICANT: Yes, sir.
THE COURT: Mr. Holland is your lawyer?
THE APPLICANT: Yes, sir.
THE COURT: Who is your lawyer?
THE APPLICANT: Kenneth ...

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