United States District Court, D. South Carolina, Florence Division
Reginald T. Davis, Petitioner,
Leroy Cartledge, Warden, Respondent.
ORDER AND OPINION
Petitioner Reginald Davis (“Petitioner”) filed this pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging ineffective assistance of counsel and defective indictment. (ECF No. 1). This matter is before the court on Respondent’s Motion for Summary Judgment (ECF Nos. 22, 23).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Thomas Rogers, III, for pre-trial handling. On January 12, 2016, the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court grant Respondent’s Motion for Summary Judgment and deny the Petition. (ECF No. 34). This review considers Petitioner’s Objection to the Report and Recommendation (“Objections”), filed February 16, 2016. (ECF No. 39).
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. 34). The court will only recite herein facts pertinent to the analysis of Petitioner’s Objections.
Petitioner is currently incarcerated at the McCormick Correctional Institution within the South Carolina Department of Corrections (“SCDC”).
In November 2003, the Saluda County Grand Jury issued an indictment charging Petitioner with burglary first degree. (ECF No. 34 at 2). A jury trial was held on January 27, 2005, before the Honorable William P. Keesley. (Id.). The jury found Petitioner guilty as charged, and Judge Keesley sentenced Petitioner to seventeen years imprisonment. (Id.) Petitioner, represented by appellate counsel, filed a direct appeal of his conviction and sentence in the South Carolina Court of Appeals raising only one issue: whether the trial judge erred in denying Petitioner’s directed verdict on the charge of burglary first degree where the state offered no evidence that he had intent to commit a crime or that he was present during the alleged aggravating offense. (Id.) On September 18, 2006, the Court of Appeals affirmed Petitioner’s conviction and sentence in an unpublished opinion.
Subsequently, on March 26, 2007, Petitioner filed an Application for Post-Conviction Relief (“PCR”), which was dismissed on March 11, 2011, following an evidentiary hearing. (Id. at 3). On April 4, 2011, Petitioner filed a motion to alter or amend the order of dismissal. (Id.). The motion to alter or amend was denied on June 8, 2011. Petitioner, through counsel, timely filed a petition for writ of certiorari raising one issue: whether trial counsel erred in failing to object to the solicitor’s prejudicial conscience of the community closing arguments made to the jury. (Id. at 4). On July 28, 2014, the South Carolina Court of Appeals denied the petition.
Petitioner filed the instant habeas Petition on December 10, 2014, alleging four grounds for relief: (1) ineffective assistance of counsel for failing to object to the indictment; (2) ineffective assistance of counsel for failing to object to prejudicial conscience of the community statements during closing argument; (3) ineffective assistance of counsel for failing to object to prejudicial photographs entered into evidence; and (4) defective indictment. (ECF No. 1 at 6-11). On June 10, 2015, Respondent filed a Motion for Summary Judgment along with a Return and Memorandum of Law in Support of Motion for Summary Judgment. (ECF Nos. 22, 23). That same day, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment procedures and the time period for filing a response. (ECF No. 24). Petitioner filed a response in opposition on August 7, 2015. (ECF No. 32).
On January 12, 2016, the Magistrate Judge issued the Report recommending the court grant Respondent’s Motion and dismiss the Petition. (ECF No. 34.) The Magistrate Judge found that Grounds One, Three, and Four are procedurally barred because those claims were not exhausted in the state courts. (Id. at 10). Although Petitioner raised the issues in Grounds One, Three, and Four in his original PCR application, he did not raise those issues in his petition for writ of certiorari. Accordingly, the Magistrate Judge found that Grounds One, Three, and Four should be dismissed because Petitioner has not shown cause to overcome the default. (Id.) With respect to Ground Two-ineffective assistance of counsel for failing to object to closing arguments-the Magistrate Judge determined that Petitioner cannot demonstrate prejudice. The Magistrate Judge noted that although an objection may have been needed, Petitioner’s due process rights were not violated if he cannot show that the remarks prejudiced his rights to the extent that he was denied a fair trial. Here, the Magistrate Judge found that the facts in this case do not demonstrate that Plaintiff was denied a fair trial. Furthermore, Petitioner has failed to show that the PCR court’s finding of no prejudice was based on an unreasonable application of federal law. Thus, the Magistrate Judge recommended that Respondent’s Motion for Summary Judgment should be granted as to Ground Two.
Petitioner timely filed his Objections on February 16, 2016. (ECF No. 39).
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 ...