United States District Court, D. South Carolina, Rock Hill Division
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 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 January 9, 2015, and the Clerk of Court entered Petitioner's objections on January 27, 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: Ineffective Assistance of Counsel
Supporting Facts: Necropsy Report, Trace Evidence, Toxicology, and GSR-kit evidence clearly show four hands were on the weapon. (Trace Evidence) The less than twelve inches distance between the victim and I, is consistent with "struggle over weapon." (Toxicology) Victim's blood alcohol level. (GSR-kit) Palms and forehead gun shot residue. I testified about these exhibits during my initial trial in which my attorney, Charles Brooks, refuse to place into evidence.
Ground Two: Fabrication of Evidence
Supporting Facts: Detectives never followed up on my version of what occurred. Victim launched for the weapon that was sitting in the floorboard of the vehicle; weapon-angle discharge is consistent with accidental shooting. Car door panels were not checked for victim's fingerprints, if so, it was not given to defense.
Ground Three: Necropsy Report/Autopsy based on Hearsay. (Dr. Ross said test done without toxicology. If positive, may have to amend opinion.)
Supporting Facts: P.I. Glenn Harrell of Glenn Harrell Investigative Services deciphered the many defects held within Dr. Ross' autopsy report. First, she claimed manner of death based on hearsay of law enforcement officers. Secondly, victim's height contrasted with my position within the vehicle is aligned with trajectory that is consistent with accidental shooting.
Ground Four: Invalid Murder Indictment
Supporting Facts: I should have not been charged with murder due to the over-whelming evidence of accidental shooting. All elements in my case are appearant evidences of Involuntary Manslaughter. Everything in my case show evidence of a lesser included offense. See: exhibits. Date of trial was 3/3/08 date my trial got exhibits off internet ...