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Dykeman v. Civil Warden, Lieber Correctional Institution

United States District Court, D. South Carolina, Anderson/Greenville Division

March 5, 2015

JOHN DYKEMAN, Petitioner,
v.
CIVIL WARDEN, Lieber Correctional Institution, Respondent.

ORDER ADOPTING THE REPORT AND RECOMMENDATION, GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, DENYING PETITIONER'S MOTION TO DISMISS RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, DENYING PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING, 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, Petitioner's motion to dismiss Respondent's motion for summary judgment be denied, Petitioner's motion for an evidentiary hearing be denied, 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 January 5, 2015, and the Clerk of Court entered Petitioner's objections on February 18, 2015. The Court has carefully considered the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.

Petitioner raises just one ground in his § 2254 petition:

GROUND ONE: Ineffective assistance of appellate counsel.
Supporting facts: Appellate counsel knowingly raised a unpreserved issue for appellate review, where there were in fact meritori[o]us issues which clearly had pre[c]edence. By appellate counsel's actions applicant was denied due process of law which is guarante[e]d by the U.S. Constitution Amend. 6 and 14th.

Petition 6.

To demonstrate ineffective assistance of counsel, Petitioner is required to establish (1) that his counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The United States Supreme Court has cautioned that "[s]urmounting Strickland 's high bar is never an easy task[, ]'... [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Harrington v. Richter, 131 S.Ct. 770, 788 (2011).

Having reviewed the PCR court's discussion of this issue, the Court is of the firm opinion that the PCR court reasonably found that appellate counsel was not ineffective in his representation of Petitioner.

As the PCR court correctly held:

This Court finds that [Petitioner] has failed to carry his burden of proving ineffective assistance of appellate counsel. This Court finds that appellate counsel's performance was not deficient. This Court also finds that appellate counsel adequately conferred with [Petitioner] and reviewed the trial record prior to filing the appeal. Appellate counsel is not required to raise every non-frivolous issue on appeal. Thrift v. State, 302 S.C. 535, 539, 397 S.E.2d 523, 526 (1990) citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
[Petitioner's] testimony reflects that appellate counsel had knowledge of the issues at trial and the issues that [Petitioner] thought were relevant for appeal. [Petitioner's] testimony also reflects that appellate counsel had the entire trial record available for review and that [Petitioner] was ...

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