United States District Court, D. South Carolina
Jimmy R. Taylor, Petitioner,
John R. Pate, Warden, Respondent.
ORDER AND OPINION
Howe Hendricks, United States District Judge
Jimmy R. Pate, (“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 Thomas E. Rogers, III, for pretrial handling and a
Report and Recommendation (“Report”). Magistrate
Judge Rogers recommends that Respondent's Motion for
Summary Judgment be granted and Petitioner's § 2254
petition be dismissed. (ECF No. 25.) 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 May 5, 2016, the Magistrate Judge
issued a Report. On August 15, 2016, Petitioner filed his
objections (ECF No. 41), to which Respondent replied on
August 22, 2016 (ECF No. 43). 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).
objections, while lengthy, are confusing-Petitioner mostly
quotes case law and testimony from his trial without any
accompanying substantive argument. (ECF No. 41.) However, in
an abundance of caution, the Court reviews the findings of
the Magistrate Judge de novo.
Magistrate Judge found that the one ground raised in the
habeas petition is procedurally barred and the Court agrees.
The Magistrate Judge provided a detailed procedural history
of Petitioner's actions for state post-conviction relief
(“PCR”) and subsequent § 2254 petition and
correctly found that the allegation raised in Ground One was
not ruled upon by the PCR court. (ECF No. 25 at 2-15.) Ground
One alleges that trial counsel was ineffective for failing to
object to or supplement the State's “recitation of
a stipulation” reached in-chambers. (ECF No. 1 at 5.)
Although Petitioner raised this claim in the PCR appeal,
because it was not specifically ruled upon by the PCR judge,
it was unpreserved for PCR appellate purposes and remains
unpreserved for habeas review. See, e.g., Green v.
Bush, No. CIV.A. 2:14-2405-MGL, 2014 WL 6983352, at *2
(D.S.C. Dec. 10, 2014) (finding a claim procedurally
defaulted because, “[a]lthough Petitioner raised this
ground in his initial PCR application, the PCR court failed
to rule on the issue”); Simpson v. Moore, 627
S.E.2d 701, 708 n.3 (S.C. 2006) (stating that an issue not
addressed by the PCR court is not preserved for review on
appeal); State v. Moore, 593 S.E.2d 608 (S.C. 2004)
(holding an issue must be raised to and ruled upon by the
trial court to be preserved for appellate review).
Magistrate Judge further correctly found that Ground One
fails on the merits, regardless of the procedural bar. (ECF
No. 25 at 13-14, n.2 (finding “Petitioner fails to
demonstrate that the underlying ineffective assistance of
counsel claim is substantial”).) The
“stipulation” in this claim refers to an
agreement reached between Petitioner's counsel and the
solicitor's office while in the trial judge's
chambers. At the PCR hearing, Petitioner testified that he
understood the agreement to be that “[n]o expert
witness would be called that will state what accident-in
order to bifurcate or to tell the difference between which
accident may have killed the Neelys.” (ECF No. 12-3 at
121.) Although Petitioner asserts that trial counsel failed
to object when the solicitor purportedly violated this
agreement, the record indicates otherwise.
PCR hearing, trial counsel explained his understanding of the
agreement reached in chambers. By way of background, he
testified that once he presented the State with the defense
theory that the second impact killed the Neeleys, the State
informed him that “. . . they were going to have their
accident reconstructionist who was basically just a trooper .
. . [t]hey were not going to have him testify that the first
collision as opposed to the second collision caused the death
of the Neeleys.” (ECF No. 12-3 at 183.) In chambers,
trial counsel asked the Court for a continuance so that he
could bring in an expert to do a momentum study. Instead of
granting a continuance, trial counsel testified, the trial
judge “allowed us to move forward by suggesting that
[the solicitor's] expert would not testify towards which
accident caused the death, basically caused the death of the
Neeleys. [However, ] once we were in court, despite my
objection, [the trial judge] allowed testimony that basically
said which accident caused the death of the Neeleys.”
trial transcript reveals that trial counsel conducted an
in camera cross-examination of the solicitor's
expert, Lieutenant Ricky Dixon, to determine the scope of his
testimony. (ECF No. 12-1 at 323-324.) After cross-examining
Lt. Dixon, trial counsel objected to his testimony regarding
the reconstruction of the collision. (Id. at
326-328.) Trial counsel argued that such testimony
contradicted the agreement he had previously reached with the
solicitor's office. (Id. at 327-328.)
Specifically, trial counsel argued that the solicitor's
office agreed they would not “bring that
evidence” as to which car accident caused the
Neeley's death. (Id. at 333-334.)
response, the Solicitor argued that it was his understanding
based on discussions with trial counsel that he “was
not going to put a highway patrolman up there, ask them how
are they going to die. I'm going to tell you right now
I'm not even going to ask that question. . . . But you
know, I don't want to necessarily go there because
our-our opinion is under the law, of course, it doesn't
matter under the law if you ...