United States District Court, D. South Carolina
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, 40), recommending that Respondent's Motion for Summary Judgment (Dkt. No. 18) be granted, Petitioner's Motion to Expand the Record (Dkt. No. 28) be denied, and the habeas petition be dismissed. For the reasons stated below, the Court ADOPTS the R & R, GRANTS Respondent's Motion for Summary Judgment, DENIES Petitioner's Motion to Expand the Record, and DISMISSES the habeas petition.
In June 2007, Petitioner was indicted for assault and battery with intent to kill and attempted kidnapping. (Dkt. No. 19-3 at 31-34). The jury found Petitioner guilty of attempted kidnapping and assault and battery of a high and aggravated nature (Dkt. No. 19-2 at 95), and Petitioner appealed his convictions to the South Carolina Court of Appeals (Id. at 107). On appeal, Petitioner argued that the trial judge "erred in allowing the accuser's identification testimony into evidence at trial because the highly suggestive out-of-court identification procedure used by police where only one photograph was displayed in the photographic layout and shown to the accuser resulted in an unreliable identification and a misidentification in the case." (Id. at 109). The Court of Appeals affirmed the convictions via unpublished opinion on January 25, 2012 (Id. at 119), and remitted the matter in February 2012 (Dkt. No. 19-5).
On April 30, 2012, Petitioner filed a. pro se application for post-conviction relief ("PCR") raising claims of ineffective assistance of trial counsel. On August 2, 2012, Petitioner filed an amended PCR application alleging ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and trial court error. On August 23, 2013, the PCR court dismissed Petitioner's application in its entirety. (Dkt. No. 19-3 at 21).
Petitioner timely filed a notice of appeal, and his counsel filed a Johnson petition for writ of certiorari in the South Carolina Supreme Court on May 5, 2014, raising the issue that "[t]rial counsel erred in failing to communicate the state's plea offer presented in the case because but for this omission, petitioner would have accepted the plea offer and received a sentence that was more lenient than the sentence he received at trial." (Dkt. No. 19-6 at 3). Petitioner filed a pro se petition for writ of certiorari on May 28, 2014, asserting that (1) "[t]he Petitioner['s] writ of certiorari should be remanded back to the lower court to address issues that the . . . PCR court failed to address in the order denying Petitioner's PCR, " and (2) "the lower court record does not support the finding that Petitioner knowingly or voluntarily waived any of his PCR allegations." (Dkt. No. 19-7).
The South Carolina Supreme Court issued an order denying the petition for writ of certiorari on September 24, 2014. (Dkt. No. 19-8). It subsequently remitted the matter on October 10, 2014. (Dkt. No. 19-9).
Petitioner filed this Petition for Writ of Habeas Corpus on November 24, 2014. (Dkt. No. 1). Petitioner raises four grounds for relief: (1) trial counsel was ineffective for failing communicate the State's written plea offers; (2) appellate counsel was ineffective for failing to raise "the substantial issue of 'defective/insufficient chain of custody'" on direct appeal; (3) appellate counsel was ineffective for failing to raise on direct appeal the trial court's denial of a motion for a mistrial or curative instruction that a jury disregard things said by a possibly incompetent person; and (4) appellate counsel was ineffective for failing raise on direct appeal the issue that the trial court denied a motion for a new trial based on the jury's request to review testimony of one of the State's expert witnesses. (Dkt. No, 1 at 2-13).
The Magistrate Judge found that (a) Grounds 2, 3, and 4 were procedurally barred, and that (b) Ground 1 was not meritorious in light of the record, and, therefore, Petitioner was not entitled to habeas relief. (Dkt. No. 40). Petitioner filed a timely objection. (Dkt, No. 43).
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 Judge's ...