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Waiters v. Warden, Coastal Pre-Release Center

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

February 9, 2016

Gary Waiters, #273876, Petitioner,
v.
Warden, Coastal Pre-Release Center, Respondent.

ORDER AND OPINION

Petitioner Gary Waiters (“Petitioner”) filed this pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging lack of subject matter jurisdiction, ineffective assistance of counsel, and insufficiency of the evidence. (ECF No. 1.) This matter is before the court on Respondent’s Motion for Summary Judgment (ECF No. 26).

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Mary Gordon Baker, for pre-trial handling. On January 5, 2016, the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court grant Respondent’s Motion for Summary Judgment and dismiss the Petition. (ECF No. 38.) This review considers Petitioner’s Objection to Report and Recommendation (“Objections”), filed January 25, 2016. (ECF No. 40.) For the reasons set forth herein, the court ACCEPTS the Magistrate Judge’s Report. The court thereby GRANTS Respondent’s Motion for Summary Judgment (ECF No. 28) and dismisses the Petition with prejudice.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The court concludes upon its own careful review of the record that the factual and procedural summation in the Magistrate Judge’s Report is accurate, and the court adopts this summary as its own. (See ECF No. 38.) The court will only recite herein facts pertinent to the analysis of Petitioner’s Objections.

Petitioner is currently incarcerated at the Manning Correctional Institution[1] within the South Carolina Department of Corrections (“SCDC”). (ECF No. 41).

In March of 2009, the Jasper County Grand Jury issued an indictment charging Petitioner with burglary, first degree. (ECF No. 38 at 1). Petitioner proceeded to a jury trial in June of 2009, and was subsequently convicted on the lesser included offense of burglary, second degree. (Id. at 1-2). The presiding judge sentenced Petitioner to fifteen years of incarceration. (Id. at 2). On July 1, 2011, Petitioner filed an Application for Post-Conviction Relief (“PCR”), which was dismissed on October 1, 2012, following an evidentiary hearing. (Id. at 3). Petitioner filed a Johnson[2]Petition for Writ of Certiorari on May 2, 2013, which the South Carolina Court of Appeals denied on February 9, 2015. (Id.)

Petitioner filed the instant habeas Petition on February 27, 2015, alleging three grounds for relief: (1) lack of subject matter jurisdiction due to an insufficient indictment, (2) ineffective assistance of counsel for failure to call an alibi witness at trial, (3) insufficient indictment. (ECF No. 1 at 6-9). The Magistrate Judge also addressed an allegation of insufficiency of the evidence, which Petitioner seemingly stated as a sub-part to Ground Two. (See ECF No. 1 at 8). Respondent filed a Motion for Summary Judgment and Return and Memorandum of Law in Support of Motion for Summary Judgment on August 27, 2015. (ECF Nos. 26, 27.)

On January 5, 2016, the Magistrate Judge issued the Report recommending the court grant Respondent’s Motion and dismiss the Petition. (ECF No. 38.) The Magistrate Judge found that the PCR court’s findings of fact with regard to Grounds One and Three are not cognizable because federal habeas relief is only available when the alleged error is based on a violation of the laws of the United States. Since there is no federal requirement that a state must proceed by way of an indictment, Petitioner cannot be granted federal habeas relief due to the insufficiency of the indictment. (Id. at 6). The Magistrate Judge recommended Ground Two be denied because Petitioner is not entitled to relief. The Magistrate Judge agreed with the PCR court’s rejection of Petitioner’s claim for ineffective assistance of counsel for failure to call alibi witnesses since Petitioner did not present testimony of any alibi witnesses at his PCR hearing. (Id. at 8). Without demonstrating the favorable testimony Petitioner claimed the alibi witness could have produced, Petitioner failed to carry his burden to prove that his counsel was ineffective. (Id.) Furthermore, the Magistrate Judge found that to the extent Petitioner claims there was insufficient evidence to support his conviction, his claim fails because “[g]iven the evidence before the trial court, the [Magistrate Judge could] not say that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” (Id. at 9).

Petitioner timely filed his Objections on January 25, 2016. (ECF No. 40.)

II. LEGAL STANDARD AND ANALYSIS

The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) 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 this court. See Matthews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter with instructions. See 28 U.S.C. § 636 (b)(1).

Objections to a Report and Recommendation must specifically identify portions of the Report and the basis for those objections. Fed.R.Civ.P. 72(b). “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee’s note). Failure to timely file specific written objections to a Report will result in a waiver of the right to appeal from an Order from the court based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the petitioner fails to properly object because the objections lack the requisite specificity, then de novo review by the court is not required.

As Petitioner is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).

Petitioner filed extensive Objections, largely consisting of detailed explanations of relevant case law. Although Petitioner provides detailed examinations of multiple cases, he fails to explain how those cases demonstrate the Magistrate Judge’s reasoning is incorrect. Petitioner maintains that the original indictment was insufficient, but fails to provide argument or case law to refute the Magistrate Judge’s conclusion that this court cannot grant him federal habeas relief based on that allegation. Because Petitioner failed to properly object to the Report with specificity, the court does not need to conduct a de novo review and instead must “only satisfy itself that there is no clear ...


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