United States District Court, D. South Carolina, Aiken Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION, GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, AND DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT
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 motion for summary judgment 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 January 20, 2015, and the Clerk of Court entered Petitioner's objections on February 10, 2015. The Court has reviewed the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly
According to Petitioner, he is entitled to relief under § 2254 on the following grounds:
Ground One: Petitioner alleges his constitutional right to Due Process of Law was violated when the prosecution delayed 18 months to initiate prosecution; and when the prosecutor failed to put him on adequate notice of the video evidence used to convict him.
Supporting Facts: I was a suspect in a control buy that occurred in November of 2003. After the completion of the control buy, they didn't arrest me, but instead delayed 18 months to initiate prosecution. Additionally, the control buy was the product of an unlawful sting operation, and the officers improper conduct resulted in my defense not being placed on adequate notice of the video evidence used to convict me. Everything coupled together reveals a Due Process violation.
Ground Two: Petitioner alleges his constitutional rights to Due Process of Law was violated when the prosecution used the proceeds of an unauthorized electronic communication to secure his conviction.
Supporting Facts: The officers in my case had received a Court Order to use "electronic, mechanical, or other devices" to jointly investigate a case with the Federal authorities. Although they knew they didn't have the authorization, probable cause, etc. to employ the devices in other areas outside the case the Court Order was assigned for, they ignored their obligatory duties and used the devices in other areas within their jurisdiction where they suspected drug activity was afoot. Proceeds from the unlawful electronic communication interception was used to secure my conviction.
Ground Three: Petitioner alleges S.C. Code Ann § 44-53-375(B), is unconstitutionally vague in violation of the 14th Amendment U.S. Const.
Supporting Facts: S.C. Code Ann § 44-53-375 (B) doesn't provide proper standards for adjudication for distribution offenses when the amount of drug involved is less than one gram. Due to the sentencing provisions failing to provide proper standards for distribution offenses less than one gram, I have been sentenced for selling an amount of drug I actually didn't distribute; which increased my sentencing exposure.
Ground Four: Petitioner alleges S.C. Code Ann. § 44-53-445 violates the Equal Protection of Law Clause.
Supporting Facts: S.C. Code Ann. § 44-53-445 proscribes a harsher penalty for crack cocaine than any other drug that violates the provisions of that statute. There isn't any rational basis to subject crack cocaine offenders to a more severe penalty, thus, my sentence was imposed in violation of the Equal Protection Clause resulting from impermissible discrimination prosecution.
Ground Five: Petitioner alleges his sentence violates the 8th Amendment U.S. Const. prohibition against ...