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Johnson v. Stevenson

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

March 23, 2016

Michael Shane Johnson, #315435, Petitioner,
v.
Robert Stevenson, Warden, Respondent.

ORDER AND OPINION

Petitioner Michael Johnson (“Petitioner”) filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging various constitutional violations and ineffective assistance of counsel. (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. 17).

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 5, 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. 27). This review considers Petitioner’s Objection to the Report and Recommendation (“Objections”), filed January 21, 2016. (ECF No. 28).

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

In November 2007 and February 2008, the Spartanburg County Grand Jury issued indictments charging Petitioner with three counts of burglary in the first degree; three counts of grand larceny more than $5000; burglary in the second degree, non-violent; grand larceny, $1000-$5000; and receiving stolen goods, less than $1000-3rd or subsequent property offense. (ECF No. 27 at 2). On February 27, 2008, Petitioner entered a guilty plea as to all charges before the Honorable Wyatt T. Saunders. (Id.). Judge Saunders sentenced Petitioner to a total of thirty five years imprisonment. (Id.) Petitioner’s plea counsel filed a motion for reconsideration of the sentence, and following a hearing on April 16, 2008, Judge Saunders modified the sentence, which resulted in a sentence reduction to thirty years imprisonment. (Id. at 3). Petitioner, through 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 abused his discretion allowing excessive consideration of the victims’ objections to sentencing leniency to influence the sentence given to Petitioner. (Id.) On February 11, 2010, the Court of Appeals filed an opinion dismissing the appeal.

Subsequently, on February 2, 2011, Petitioner, through counsel, filed an Application for Post-Conviction Relief (“PCR”), which was dismissed on May 2, 2012, following an evidentiary hearing. (Id. at 5). Petitioner filed a motion to alter or amend the order of dismissal. (Id.). The motion to alter or amend was denied on June 5, 2012. Petitioner, through counsel, timely filed a petition for writ of certiorari raising four issues: (1) whether Petitioner was denied the constitutional right of allocution at sentencing; (2) whether Petitioner voluntarily, knowingly, and intelligently waived a conflict of interest between his attorney and sentencing judge; (3) whether counsel was ineffective for failing to aid in Petitioner’s cooperation with the state; and (4) whether counsel was ineffective for failing to adequately explore plea negotiations. (Id. at 5-6). On July 3, 2014, the South Carolina Court of Appeals denied the petition.

Petitioner filed the instant habeas Petition on September 29, 2014, alleging seven grounds for relief: (1) denial of constitutional right of allocution at sentencing; (2) ineffective assistance of counsel for failing to object to denial of allocution at sentencing; (3) Petitioner did not knowingly waive his constitutional right of allocution; (4) denial of due process of law pursuant to the Fourteenth Amendment because the plea and sentencing judge was not impartial; (5) Petitioner did not knowingly and voluntarily waive his right to have an impartial plea and sentencing judge; (6) ineffective assistance of counsel for failure to aid in Petitioner’s cooperation with the state; and (ECF No. 1 at 6-11, ECF No. 1-1). On March 2, 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). Petitioner filed a response in opposition on April 20, 2015. (ECF No. 23).

On January 5, 2016, the Magistrate Judge issued the Report recommending the court grant Respondent’s Motion and dismiss the Petition. (ECF No. 27.) Petitioner timely filed his Objections on January 21, 2016. (ECF No. 28).

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.

Petitioner filed extensive Objections to the Magistrate Judge’s Report. Essentially, Petitioner filed specific Objections to all of the findings and conclusions of the Magistrate Judge. As a result, this court has determined that it is necessary to conduct a de novo review of all claims raised in the habeas petition.

GROUNDS ONE AND THREE

Petitioner objects to the Magistrate Judge’s recommendation as to Grounds One and Three because the Magistrate Judge did not fully address the claims on the merits. In Ground One, Petitioner asserts that he was denied his Constitutional right of allocution at sentencing. In Ground Three, Petitioner asserts that he did not knowingly, intelligently, and voluntarily waive his Constitutional right of allocution. Because Grounds One and Three ...


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