United States District Court, D. South Carolina
James R. Dator, #129074 Petitioner,
Warden Joseph McFadden, Lieber Correctional Institution, Respondent.
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge.
James R. Dator is a prisoner in custody of the South Carolina
Department of Corrections (SCDC) who currently is housed at
Lieber Correctional Institution in Ridgeville, South
Carolina. Petitioner is serving a life sentence without the
possibility of parole on a conviction for burglary first
degree; and ten years incarceration for each of the two
convictions for assault and battery of a high and aggravated
nature (ABHAN), the ABHAN sentences to run concurrently to
each other and consecutive to the burglary sentence. On April
20, 2015, Petitioner filed a petition under 28 U.S.C. §
2254 for a writ of habeas corpus by a person in state
custody. In accordance with 28 U.S.C. § 636(b) and Local
Rule 73.02, D.S.C., this matter was referred to United States
Magistrate Judge Shiva V. Hodges for pretrial handling.
§ 2254 petition, Petitioner raises the following grounds
GROUND ONE: The photo lineup was unduly suggestive/conducive
to irreparable identification thus the identification is
GROUND TWO: Judge erred by allowing the introduction of
irrelevant evidence based upon immoral bad acts.
GROUND THREE: The trial court erred by allowing the state to
comment on the Petitioner's failure to provide other
GROUND FOUR: Judge erred by allowing impermissible hearsay
testimony that violated Petitioner's right to
See generally ECF No. 1.
September 14, 2015, Respondent Joseph McFadden filed a return
and memorandum in response to Petitioner's § 2254
petition, as well as a motion for summary judgment. On
September 15, 2015, pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975),
Petitioner was advised of the summary judgment procedures and
the possible consequences if he failed to respond adequately.
After being granted an extension, Petitioner filed a response
in opposition to Respondent's motion on December 16,
2015. On November 20, 2015, Petitioner filed a motion to
amend his § 2254 petition to add the following ground
GROUND FIVE: Defense counsel was ineffective in allowing
State Witness Theresa James to testify by telephone when it
denied petitioner the right to confrontation.
ECF No. 25, 1.
January 7, 2016, Petitioner filed a response in opposition to
Respondent's motion for summary judgment in which he
withdrew Grounds Two, Three, and Four. Respondent filed a
response in opposition to Petitioner's motion to amend on
April 27, 2016, in which Respondent asserted that
Petitioner's Ground Five is barred by the one year
limitations period set forth in 28 U.S.C. § 2244(d), and
thus amendment would be futile. On June 10, 2016, Petitioner
filed a reply to Respondent's memorandum in opposition to
his motion to amend, as well as an amended response in
opposition to Respondent's motion for summary judgment.
Also on June 10, 2016, Petitioner filed a motion for
Magistrate Judge issued a Report and Recommendation on July
28, 2016. The Magistrate Judge determined that
Petitioner's Ground One is procedurally barred because
Petitioner raised no objection to his identification during
trial. Accordingly, Ground One was not preserved for
appellate review; as a result, Ground One is not cognizable
under federal habeas review. See Wainwright v.
Sykes, 433 U.S. 72, 87 (1977) (failure to raise
objection as required by state procedure prevents federal
review). The Magistrate Judge further determined that Ground
Five is barred by the applicable statute of limitations.
Accordingly, the Magistrate Judge recommended that
Petitioner's motion to amend be denied as futile,
Petitioner's motion for an evidentiary hearing be denied
as unnecessary, and that Respondent's motion for summary
judgment be granted. Petitioner filed no objections to the
Report and Recommendation.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight. The
responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270
(1976). This court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
Magistrate Judge. 28 U.S.C. § 636(b)(1). This court may
also receive further evidence or recommit the matter to the
Magistrate Judge with instructions. Id. In the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must “only
satisfy itself that ...