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Belton v. Warden of Broad River Correctional Institution

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

March 21, 2016

Herman Belton, #256396, Petitioner,
Warden of Broad River Correctional Institution, Respondent.


Petitioner Herman Belton (“Petitioner”) filed this pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging ineffective assistance of counsel, defective indictment, manufactured evidence, and prosecutorial misconduct. (ECF No. 1). Petitioner is currently incarcerated at the Broad River Correctional Institution within the South Carolina Department of Corrections (“SCDC”). This matter is before the court on Respondent’s Motion for Summary Judgment (ECF No. 16).

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Kevin McDonald, for pre-trial handling. On September 11, 2015, 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. 32). This review considers Petitioner’s Objection to the Report and Recommendation (“Objections”), filed October 2, 2015. (ECF No. 34).


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. 32). The court will only recite herein facts pertinent to the analysis of Petitioner’s Objections.

In June 2006, the Anderson County Grand Jury issued an indictment charging Petitioner with trafficking crack cocaine. (ECF No. 32 at 1). A jury trial was held on February 5-6, 2007, before the Honorable Thomas W. Cooper, Jr. (Id.). The jury found Petitioner guilty as charged, and Judge Cooper sentenced Petitioner to twenty-five years imprisonment. (Id. at 2). 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 motion to suppress the drugs where there was no probable cause to stop him. (Id. at 4). On November 19, 2009, the Court of Appeals dismissed Petitioner’s appeal. Petitioner filed petitions for rehearing, which were denied on January 21, 2010. (Id.)

Subsequently, on February 24, 2010, Petitioner filed an Application for Post-Conviction Relief (“PCR”), which was dismissed on November 10, 2011, following an evidentiary hearing. (Id. at 6). Petitioner did not file a motion to alter or amend. Petitioner, through counsel, timely filed a petition for writ of certiorari raising two issues: (1) whether the PCR court erred in not finding counsel ineffective for failing to object to the admission of the drugs at trial even after making a pretrial motion to suppress; and (2) whether the PCR court erred in failing to find trial counsel ineffective for not objecting to the indictment which was not true billed during a term of the General Sessions Court. (Id.) On July 3, 2014, the South Carolina Court of Appeals denied the petition. (Id. at 7).

Petitioner filed the instant habeas Petition on January 20, 2015, alleging four grounds for relief: (1) ineffective assistance of counsel for performance during critical states of criminal proceeding; (2) defective indictment; (3) Fabricated evidence-lab results were manipulated, altered, and changed; and (4) prosecutorial misconduct where prosecution withheld an exculpatory SLED lab report. (ECF No. 1 at 5, 6, 8, 10). On April 15, 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. 16, 17). On April 16, 2015, 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. 18). Petitioner filed a response in opposition on June 19, 2015, after being granted an extension to file by the court. (ECF No. 24).

On September 11, 2015, the Magistrate Judge issued the Report recommending the court grant Respondent’s Motion and dismiss the Petition. (ECF No. 32). Petitioner supplemented his initial petition with a memorandum raising additional claims. The Magistrate Judge considered the following grounds: Ground One-all ineffective assistance of counsel claims; Ground Two- defective indictment; Grounds Three and Four (considered together)-due process claims and prosecutorial misconduct claims concerning evidence; and Ground Five-stand-alone Fourth Amendment claim. The Magistrate Judge found that a number of the sub-claims raised in Ground One are barred with the exception of Petitioner’s claim alleging that counsel was ineffective for failing to challenge the indictment. The Magistrate Judge determined that the indictment charging Petitioner was valid on its face. (ECF No. 32 at 19). The Magistrate Judge further determined that the indictment was lawfully obtained such that counsel’s performance in failing to challenge the indictment was not deficient. The Magistrate Judge also found that Petitioner could not demonstrate prejudice. (Id. at 20). With respect to Ground Two, the Magistrate Judge found that the claim was procedurally barred as a stand-alone claim. (Id. at 27).

Additionally, the Magistrate Judge determined that Grounds Three and Four are procedurally barred because those claims were not exhausted in the state courts. (Id. at 28). The Magistrate Judge determined that Petitioner could not demonstrate cause or prejudice to excuse the default as to the claims. (Id.) With respect to ground Five, the Magistrate Judge found that because the state provided a full opportunity for Petitioner to address his Fourth Amendment claim, it is not cognizable on habeas review. (Id. at 30-31).

Petitioner timely filed his Objections on October 2, 2015.[1] (ECF No. 34).


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 ...

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