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Bolton v. Warden, McCormick Correctional Institution

United States District Court, D. South Carolina, Charleston Division

January 13, 2016

Thurston M. Bolton, Petitioner,
v.
Warden, McCormick Correctional Institution, Respondent.

ORDER

Richard Mark Gergel United States District Court Judge

This matter comes before the Court on the Report and Recommendation (R & R) of the Magistrate Judge (Dkt. No. 26), recommending that Respondent's Motion for Summary Judgment (Dkt. No. 19) be granted and the habeas petition be dismissed. For the reasons stated below, the Court ADOPTS the R & R, GRANTS Respondent's Motion for Summary Judgment, and DISMISSES the habeas petition.

I. Background

In June of 2008, a Charleston County Grand Jury indicted Petitioner for criminal sexual conduct in the first degree (CSC) and kidnapping. After a two-day jury trial, Petitioner was found guilty of the kidnapping charge and acquitted of the CSC charge. He received a twenty-year sentence for the kidnapping conviction.

Petitioner initially filed a notice of appeal, but his appellate counsel later filed an affidavit by the Petitioner in which he indicated a desire to voluntarily withdraw his appeal. (Dkt. No. 18-3). The South Carolina Court of Appeals dismissed the appeal on June 24, 2010 (Dkt. No. 18-4), and it sent the remittitur to the Charleston County Clerk of Court on July 14, 2010 (Dkt. No. 18-5).

On August 9, 2010, Petitioner filed an application for post-conviction relief (PCR) raising claims of ineffective assistance of trial counsel. An evidentiary hearing took place on September 14, 2011, and the PCR court dismissed Petitioner's application in its entirety on November 3, 2011.

Petitioner timely filed a notice of appeal (Dkt. No. 18-6), and filed a petition for writ of certiorari in the South Carolina Supreme Court, raising the issue that "the PCR court erred in finding Counsel's performance was not deficient where Counsel failed to object to the prosecution's comment in closing argument that the Complaining Witness'[s] clothes were ripped off. . . where there was no evidence that the clothes were ripped." (Dkt. No. 18-7 at 3). Petitioner also raised three additional arguments in his pro se response to the Johnson petition: (1) that the PCR court erred in finding that there was no ineffective assistance of counsel when trial counsel failed to properly cross-examine the complaining witness about a prior inconsistent statement that she and the Petitioner engaged in oral sex, (2) that the PCR court erred in finding trial counsel's performance was not deficient in counsel's failure to provide a defense for Petitioner's kidnapping indictment, and (3) the PCR Court erred in finding trial counsel's performance was not deficient in employing an invalid trial strategy. (Dkt. No. 18-8). On May 22, 2014, the South Carolina Supreme Court filed an order denying certiorari and granting PCR counsel's petition to be relieved (Dkt. No. 18-9). The South Carolina Court of Appeals remitted the matter on June 9, 2014. (Dkt. No. 18-10).

Petitioner filed this Petition for Writ of Habeas Corpus on December 30, 2014. (Dkt. No. 1). Petitioner raises four grounds for relief: the lower courts erred in finding that counsel's performance was not deficient (1) where counsel failed to cross examine the complaining witness about a prior inconsistent statement that she and the petitioner engaged in oral sex, (2) where counsel failed to provide a defense for petitioner's kidnapping indictment, (3) where counsel failed to object to the prosecution's comment in closing argument that the complaining witness's clothes were ripped off, and (4) where counsel failed to employ a valid trial strategy. (Dkt.No. 1-1).

The Magistrate Judge found that none of the Petitioner's grounds satisfied § 2254(d)'s standards and that all of the grounds lacked merit. (Dkt. No. 26). Petitioner subsequently filed objections (Dkt. No. 24).

II. Legal Standard

A. Report & Recommendation

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions of the R & R or specified proposed findings or recommendations to which objection is made. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed. R. Civ. P. 72(b).

As to portions of the R & R to which no specific objection has been made, this Court "must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Id. (quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the Magistrate ...


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