United States District Court, D. South Carolina
Richard Mark Gergel United States District Judge
matter comes before the Court on the Report and
Recommendation (R & R) of the Magistrate Judge (Dkt. No.
23), recommending that Respondent's Motion for Summary
Judgment be granted and the habeas petition be dismissed. For
the reasons stated below, the Court ADOPTS IN PART the R
& R, GRANTS Respondent's Motion for Summary Judgment,
and DISMISSES the habeas petition.
and 2006, Petitioner was indicted for murder, burglary-first
degree, attempted armed robbery, and unlawful possession of a
pistol by a person under 21. These charges arose out of an
incident on December 8, 2004, when Petitioner and a
co-defendant approached the apartment of Clarence Spicer.
Spicer testified that one man had a mask and a gun and the
other man had a hood covering his face. Spicer testified that
when he tried to close the door on the two men, one of them
shot inside his home. That shot killed Tavaris Howze. At
trial, each defendant claimed that the other was the shooter
and both claimed that they had originally gone to the
apartment to purchase drugs from Spicer and not to rob him.
March 17, 2016, after a jury trial, Petitioner was convicted
of all charges except burglary; the jury instead found
Petitioner guilty of attempted burglary. The trial court
sentenced Petitioner to life for the murder conviction and to
various lesser sentences on the other convictions, all to run
concurrently. The South Carolina Court of Appeals affirmed
the conviction and sentence on direct appeal, and the South
Carolina Supreme Court denied certiorari. Petitioner filed an
application for post-conviction relief (PCR), which was
dismissed on November 1, 2011. The South Carolina Court of
Appeals denied Petitioner's petition for certiorari.
Remittitur was issued on October 13, 2014, and filed with the
Circuit Court on October 17, 2014.
instant federal petition was filed on October 14, 2015,
raising five grounds for relief. (Dkt. No. 1). The Magistrate
Judge recommended dismissing the entire petition as untimely
under the statute of limitations. The Magistrate Judge also
considered the merits of Petitioner's grounds for relief
and recommended granting summary judgment to Respondent on
all five grounds. Petitioner filed timely objections to
portions of the R&R. (Dkt. No. 31).
Report & Recommendation
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The Court may "accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate." 28 U.S.C. § 636(b)(1). This Court is
charged with making a de novo determination of those
portions of the R & R or specified proposed findings or
recommendations to which objection is made. Diamond v.
Colonial Life & Ace. Ins, Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1));
accord Fed. R. Civ. P. 72(b).
portions of the R & R to which no specific objection has
been made, this Court "must 'only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.'" Id.
(quoting Fed. R. Civ. P 72 advisory committee note).
Moreover, in the absence of specific objections to the R
& R, the Court need not give any explanation for adopting
the Magistrate Judge's analysis and recommendation.
See Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir.
Federal Habeas Review
claims are governed by 28 U.S.C. § 2254(d), which
provides that his petition cannot be granted unless the
claims "(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d). "[A] federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must
also be unreasonable." Williams v. Taylor, 529
U.S. 362, 411 (2000). Importantly, "a determination of a
factual issue made by a State court shall be presumed to be
correct, " and Petitioner has "the burden of
rebutting the presumption of correctness by clear and
convincing evidence." 28 U.S.C. § 2254(e)(1).
Habeas Review of Ineffective Assistance of Counsel
allegations of ineffective assistance of counsel are made,
the question is "whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result." Strickland v. Washington, 466 U.S.
668, 686 (1984). First, the Petitioner must show that counsel
made errors so serious that counsel's performance was
below the objective standard of reasonableness guaranteed by
the Sixth Amendment. Id. at 687-88. Second, the
Petitioner must show that "there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Id. at 694.
standards created by Strickland and § 2254(d)
are both highly deferential... and when the two apply in
tandem, review is doubly so." Harrington v.
Richter, 131 S.Ct. 770, 788 (2011). In applying §
2254(d), "the question is not whether counsel's
actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard."
Statute of Limitations
is a one-year statutory deadline for filing a federal habeas
petition. 28 U.S.C. § 2244. The statute begins to run on
"the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review." Id. at §
2244(d)(1)(A). the statute is tolled during the pendency of
PCR proceedings. Id. at § 2244(d)(2). Here,
Petitioner filed his PCR action before the time expired for
him to file a direct appeal to the United States Supreme