United States District Court, D. South Carolina
ORDER AND OPINION
HOWE HENDRICKS, UNITED STATES DISTRICT JUDGE
Raymond Bradley McCarter, (“Petitioner”),
proceeding pro se, filed this application for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No.
1.) In accordance with 28 U.S.C. § 636(b) and Local Rule
73.02(B)(2)(d), D.S.C., the action was referred to United
States Magistrate Judge Page J. Gossett, for pretrial
handling and a Report and Recommendation
(“Report”). Magistrate Judge Gossett recommends
that Respondent’s Motion for Summary Judgment be
granted and Petitioner’s § 2254 petition be
dismissed. (ECF No. 29.) The Report sets forth in detail the
relevant facts and standards of law on this matter and the
Court incorporates them without recitation.
filed this action against Respondent alleging ineffective
assistance of counsel. On July 6, 2016, the Magistrate Judge
issued a Report. On July 25, 2016, Petitioner filed his
objections, (ECF No. 31), and then filed a supplement to his
objections on July 26, 2016 (ECF No. 32). Other than adding
an extra objection, the supplement is identical to
Petitioner’s original objections. Defendant filed a
reply on August 10, 2016 (ECF No. 33). Having carefully
reviewed the record, the Court finds that the Magistrate
Judge has accurately and adequately summarized the disputed
and undisputed facts relevant to this action. The Court has
reviewed the objections, but finds them to be without merit.
Therefore, it will enter judgment accordingly.
Magistrate Judge makes only a recommendation to the district
court. The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
district court. Mathews v. Weber, 423 U.S. 261,
270-71 (1976). The Court is charged with making a de
novo determination of those portions of the Report to
which specific objection is made, and the court may accept,
reject, or modify, in whole or in part, the recommendation of
the Magistrate Judge, or recommit the matter with
instructions. 28 U.S.C. § 636(b)(1). The Court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate’s
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge’s conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
reviewing these pleadings, the Court is mindful of
Petitioner’s pro se status. When dealing with
a pro se litigant, the Court is charged with liberal
construction of the pleadings. See, e.g., De’Lonta
v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The
requirement of a liberal construction does not mean, however,
that the Court can ignore a petitioner’s clear failure
to allege facts that set forth a cognizable claim, or that
the Court must assume the existence of a genuine issue of
material fact where none exists. See United States v.
Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
initial matter, Petitioner’s objections are extremely
brief and somewhat confusing. The Court has nevertheless
conducted de novo review and finds that
Petitioner’s objections provide no basis for this Court
to deviate from the Magistrate Judge’s recommended
disposition. The petition for a writ of habeas corpus
pursuant to § 2254 must be denied for the reasons set
forth in the Magistrate Judge’s concise and thorough
first objects that the Magistrate Judge improperly refused to
consider “supporting facts relevant to [his] claim[s],
” including “actual ineffective assistance of
counsel for failure to investigate.” (ECF Nos. 31 at 1;
32 at 1.) The Court is somewhat perplexed by this objection,
as it cannot find in the pleadings any express claim for
ineffective assistance of counsel for failure to investigate.
Regardless, the Magistrate Judge did not refuse to consider
supporting facts to Petitioner’s existing claims;
rather, she correctly refused to consider “several new
bases upon which [Petitioner] argues trial counsel was
ineffective” because Petitioner asserted them for the
first time in response to Respondent’s motion for
summary judgment. (ECF No. 29 at 11 n.4); see, e.g.,
Jones v. McFadden, No. 814-CV-04556-RMG-JDA, 2016 WL
825394, at *14 (D.S.C. Jan. 15, 2016), report and
recommendation adopted, No. 8: 14-CV-4556-RMG, 2016 WL
827756 (D.S.C. Mar. 2, 2016) (“To the extent that
Petitioner is attempting to raise new arguments in his
response in opposition, new matters cannot be raised in a
response in opposition to a motion for summary judgment, . .
. and the Court will not address these arguments.”)
(citing Temple v. Oconee County, C/A No.
6:13-144-JFA-KFM, 2014 WL 4417702, at *13 (D.S.C. Sept. 8,
2014); White v. Roche Biomedical Labs., 807 F.Supp.
1212, 1216 (D.S.C. 1992)). The Court agrees with the
Magistrate Judge’s finding that Petitioner cannot raise
new claims in this way and overrules the objection.
next objects that the Magistrate Judge contradicted herself
when she considered the merits of Petitioner’s
ineffective assistance of counsel claims despite the apparent
procedural bar, but then dismissed any allegation that
counsel’s “failure to accommodate was a defect in
the plea proceeding” in part because this claim
“would be procedurally barred.” (ECF Nos. 29 at
10, n.3; 31 at 1; 32 at 1-2.) The Court, however, finds no
contradiction in the Report. The Magistrate Judge first
determined that Petitioner’s failure to accommodate
claim, to the extent he alleged a defect in the plea
proceeding, failed on the merits. Specifically, she found
“no basis in the record to support such a claim.”
(ECF No. 29 at 10, n.3.) She then noted that as with
Petitioner’s other ineffective assistance of counsel
claims, this claim was not presented to the state courts in
his PCR action, and, therefore, “would be procedurally
barred from federal habeas review.” (Id.) The
Court agrees with the Magistrate Judge’s finding that
the record does not support any sort of claim that counsel
failed to accommodate Petitioner’s hearing disability
in the plea hearing. There is no error here and this objection
is therefore overruled.
next objection asks why he was not “given the offer of
ABHAN or lesser assault and battery offense.” (ECF Nos.
31 at 2-3; 32 at 2.) He points to the portion of the Report
quoting Petitioner’s state PCR application, in which
Petitioner claims his “sentence was unduly harsh:
medical records states [sic] mild injuries (not life
threating [sic] injuries).” (ECF No. 29 at 2.)
Essentially, Petitioner appears to claim for the first time
that he should have been given a better offer from the
Solicitor when he pled guilty. Same as above, this is a new
ground for relief that was not raised in the petition.
See, e.g., Jones, 2016 WL 825394,
at *14; Temple, 2014 WL 4417702, at *13;
White, 807 F.Supp. at 1216. The Court therefore will
not consider such a claim and overrules this objection.
Petitioner objects to the Magistrate Judge’s statement
that “McCarter waived the right to contest
counsel’s effectiveness in a collateral
proceeding” when he pleaded guilty, citing his motion
to alter and amend the PCR court’s decision that he
filed, through counsel, on July 15, 2013. (ECF Nos. 32 at 2;
19-4 at 430-32.) In the Report, the Magistrate Judge found
that “Because the constitutional deprivations alleged
by [Petitioner] occurred prior to his guilty plea,
[Petitioner] waived the right to contest counsel’s
effectiveness in a collateral review proceeding.” (ECF
No. 29 at 10- 11.) The fact that Petitioner filed a motion to
alter and amend the PCR court’s decision in his state
court proceedings has no effect on the appropriateness of
this finding. When Petitioner pleaded guilty in his state
trial, he waived any “independent claims relating to
the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea.” Tollett v.
Henderson, 411 U.S. 258, 267 (1973); see also Fields
v. Attorney Gen. of State of Md., 956 F.2d 1290, 1294-95
(4th Cir. 1992) (applying Tollett and its progeny in
the context of § 2254 habeas petitions). The Magistrate
Judge disposed of the only claim potentially relating to ...