United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel United States District Court Judge
This matter is before the Court on the Report and Recommendation of the Magistrate Judge, recommending summary judgment for Respondent regarding Petitioner' spro se application for habeas relief pursuant to 28 U.S.C. § 2254. For the reasons given below, the Court adopts the Report and Recommendation and grants summary judgment for Respondent.
The Spartanburg County Sheriffs Office arranged a drug transaction with Petitioner through a confidential informant, to take place at a restaurant on February 9, 2006. An arrest warrant for Petitioner had been issued two days previously. When officers approached Petitioner's vehicle to serve the warrant, Petitioner fled from the passenger side and ran to the restaurant, bag of cocaine in hand. But when he grabbed the handle to the restaurant's door, the bag of cocaine in his hand cocaine ruptured, sending white powder "everywhere." (Dkt. No. 28-2, at 69.) Officers recovered over 51 grams of powder cocaine and a set of digital scales from Petitioner at the scene. Officers further recovered approximately 20 grams of crack cocaine from Petitioner which he had hidden in his underwear, at the Spartanburg County Detention Center. Petitioner was released on bail.
On May 11, 2006, a grand jury indicted Petitioner for various cocaine trafficking offenses and for unlawful conduct toward a child. On June 14, 2006, the day before the commencement of trial, trial counsel relayed the solicitor's plea offer of eighteen years. (Dkt. No. 28-2, at 38-54.) Petitioner responded by skipping bail and failing to appear at trial. The next day, a bench warrant issued and Petitioner's trial commenced in absentia. (Id.) He was convicted that afternoon on two cocaine trafficking charges (he had earlier pled guilty to the unlawful conduct toward a child charge), and the trial court entered a sealed sentence. At sentencing, trial counsel successfully opposed the solicitor's request for Petitioner to be sentenced as a repeat offender (which would have resulted in a mandatory 25-year sentence). On August 1, 2006, Petitioner was apprehended in North Carolina. The trial court published its sentence of 23 years on April 13, 2007, granting credit for time served in North Carolina.
Petitioner appealed his convictions and sentences by way of an Anders brief. His appeal was summarily denied. He filed for post-conviction relief (PCR) on December 30, 2010 (amended March 31, 2012), claiming ineffective assistance of counsel. An evidentiary hearing was held on January 11, 2013, and his application was denied with prejudice on July 10, 2013. His SCRCP Rule 59(e) motion regarding that denial was denied on September 23, 2013, and his petition for a writ of certiorari to the South Carolina Supreme Court was denied on December 4, 2014 (remittitur issued December 22). He timely filed the instant pro se Petition on January 5, 2014, in which he asserts (under a single ground for relief) that trial counsel should have argued that the State's confidential informant was required to testify, that trial counsel was generally unprepared for trial, that trial counsel was ineffective in waiving opening and closing arguments, and that trial counsel was ineffective in failing to challenge the search that led to drugs being found on his person.
II. Legal Standard
A. Report and Recommendation of the Magistrate Judge
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 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).
When a proper objection is made to a particular issue, "a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he district court's decision whether to consider additional evidence is committed to its discretion, and any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to introduce new evidence after the magistrate judge has acted are disfavored, " though the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v. Jackson, 831 F.Supp.2d 911, 914 (M.D. N.C. 2010) (listing cases).
B. Summary Judgment
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact" and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In other words, summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am.
Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986).
Once the moving party has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. Under this standard, "[c]onclusory or speculative allegations do not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving party's case.
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