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 & 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.
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).
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.
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
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.
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, 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."
Non-cognizable Ground - Ground Ten
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).
Court agrees with the Magistrate Judge, adopts this portion
of the R&R, and grants summary judgment on Ground Ten.
Procedurally Barred Claim - Ground One (B)
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.
Ground One (A)
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