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Smith v. Boulware

United States District Court, D. South Carolina

September 16, 2016

Marquita Smith, Petitioner,
v.
Warden Marian Boulware, Respondent.

          ORDER

          Richard Mark Gergel, United States District Judge

         This matter comes before the Court on the Report and Recommendation (R & Rj~of the Magistrate Judge (Dkt. No. 25), recommending that Respondent's Motion for Summary Judgment be granted and the habeas petition be dismissed. For the reasons stated below, the Court ADOPTS the R & R, GRANTS Respondent's Motion for Summary Judgment, and DISMISSES the habeas petition.

         I. Background[1]

         In August of 2007, Petitioner was indicted for accessory before the fact of a felony (murder), accessory before the fact of a felony (burglary first degree), accessory before the fact (kidnapping), and accessory before the fact (armed robbery). The charges arose out of events of August 1-2, 2007, where Petitioner's cousin, Dexter Perry, was kidnaped, robbed and killed. Petitioner was charged as an accessory and her co-defendants were charged as principals. At trial, the State argued that Petitioner "set [Perry] up" and "lured him to be robbed by [her co-defendants]." (Dkt. No. 13-1 at 115).

         On August 27, 2007, Petitioner and two co-defendants proceeded to a jury trial. Petitioner's trial counsel made a motion for continuance and a motion for severance, and both motions were denied. At trial, the State only proceeded on the charges of accessory before the fact of a felony (murder) and accessory before the fact of a felony (armed robbery). (Dkt. No. 13-1 at 61). Petitioner was convicted of both charges.

         Petitioner filed a direct appeal raising whether the lower court erred in denying Petitioner's motions for a continuance and severance, and the South Carolina Court of Appeals affirmed the conviction. Petitioner filed a PCR application raising seventeen ineffective assistance of counsel claims. The PCR application was dismissed. Petitioner filed a belated appeal under Austin v. State, 409 S.E.2d 395 (S.C. 1991), and the South Carolina Supreme Court denied the petition for writ of certiorari from the denial Petitioner's first PCR application.

         The instant habeas petition was timely filed on May 28, 2015, raising ten grounds for relief, nine of which allege that trial counsel or appellate counsel was ineffective. The Magistrate Judge recommended granting summary judgment on each of Petitioner's grounds for relief. (Dkt. No. 25). Petitioner filed objections to portions of the R&R. (Dkt. No. 34).

         II. Legal Standard

         A. Report & Recommendation

         The 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).

         As to 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. 1983).

         B. Federal Habeas Review

         Petitioner's 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).

         C. Habeas Review of Ineffective Assistance of Counsel

         Where 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.

         "The 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, 562 U.S. 86, 105, (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." Id.

         III. Discussion

         A. Non-cognizable Ground - Ground Ten

         In this ground, Petitioner alleges that South Carolina Supreme Court violated Petitioner's equal protection and due process rights when it denied her the opportunity to file a Petition for Writ of Certiorari to the South Carolina Court of Appeals. (Dkt. No. 1-1 at 28-29). The Magistrate Judge found this ground was not a cognizable ground for habeas relief. (Dkt. No. 25 at 24-25). Petitioner does not object to this finding by the Magistrate Judge. (Dkt. No. 34 at 23).

         The Court agrees with the Magistrate Judge, adopts this portion of the R&R, and grants summary judgment on Ground Ten.

         B. Procedurally Barred Claim - Ground One (B)

         In Ground One (B), Petitioner alleges that trial counsel was ineffective for failing to adequately argue Petitioner's motion for continuance. (Dkt. No. 1-1 at 3). The Magistrate Judge found that this issue was procedurally barred. (Dkt. No. 25 at 25). Petitioner has not objected to this finding by the Magistrate Judge. (Dkt. No. 34 at 5). The Court agrees, adopts this portion of the R&R, and grants summary judgment on this ground.

         C. Ground One (A)

         In Ground One (A), Petitioner alleges that trial counsel was ineffective for failing to adequately argue Petitioner's pre-trial motion for severance, (Dkt. No. 1-1 at 3). In particular, Petitioner argues that trial counsel should have argued that because Petitioner was being tried as an accessory and her co-defendants were being tried as ...


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