United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
Casey Jenkins (“Petitioner”) filed this pro
se Petition for a Writ of Habeas Corpus
(“Petition”) pursuant to 28 U.S.C. § 2254
alleging ineffective assistance of plea counsel,
prosecutorial misconduct, and an involuntary plea. (ECF No.
1.) Respondent John R. Pate (“Respondent”) filed
a Return (ECF No. 37) and moved for Summary Judgment on
Petitioner's claims. (ECF No. 38.) Petitioner responded
by filing a Motion for Summary Judgment. (ECF No. 52.)
accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule
73.02(B)(2)(g) (D.S.C.), the matter was referred to United
States Magistrate Kaymani D. West for pre-trial handling. On
May 26, 2016, the Magistrate Judge issued a Report and
Recommendation (“Report”) recommending the court
grant Respondent's Motion for Summary Judgment (ECF No.
38), deny Petitioner's Motion for Summary Judgment (ECF
No. 52), and deny the Petition. (ECF No. 1.) This review
considers Plaintiff's Objections to the Report
(“Objections”) filed July 15, 2016. (ECF No. 71.)
For the reasons set forth herein, the court
ACCEPTS the Magistrate Judge's Report
and DISMISSES this Petition (ECF No. 1) with
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
court concludes, upon its own careful review of the record,
that the Magistrate Judge's factual synopsis is accurate
and incorporates it by reference. This court will thus focus
on the facts pertinent to the analysis of Petitioner's
Objections. The relevant facts, viewed in a light most
favorable to Petitioner, are as follows.
September 10, 2008, Petitioner was charged by the grand jury
in Berkeley County with trafficking in cocaine in excess of
200 grams. (ECF No. 37-1 at 73.) On January 18, 2012,
Petitioner, represented by Attorney J. Mitchell Lanier
(“plea counsel”), appeared in General Sessions
Court to enter a guilty plea to a lesser-included offense of
the charged crime (trafficking in cocaine twenty-eight to one
hundred grams, first offense). (Id. at 4.) Both
Petitioner and plea counsel indicated that they agreed with
the plea. (Id. at 6.) Petitioner stated he was
satisfied with plea counsel's representation, and plea
counsel said that he had fully investigated the matter and
had shared the results of his investigation with Petitioner.
(Id. at 6-7.) Petitioner agreed that the plea was in
his best interest. (Id.) Plea counsel did not object
during Solicitor's soliloquy when Solicitor mentioned
recorded calls made between a confidential informant and
Petitioner. (Id. at 9.) Though Petitioner expressed
concern about corruption within the ranks of the police
officers, Petitioner stated that he “accepted
responsibility.” (Id. at 15.) The court
sentenced Petitioner to eight years in prison. (Id.
filed a post-conviction relief (“PCR”)
application on July 17, 2012, raising multiple issues,
including ineffective assistance of counsel
(“IAC”), and due process violations.
(Id. at 21.) After Petitioner submitted multiple
amendments and motions, and Respondent filed its Return, an
evidentiary hearing on Petitioner's PCR application was
convened in Charleston on January 13, 2014, before the
Honorable Kristi Lea Harrington (“PCR Judge”).
(Id. at 76.) In an Order dated February 28, 2014,
the PCR Judge denied Petitioner's PCR application and
dismissed the case with prejudice. (Id. at 121-22.)
No post-hearing motions were filed. The PCR counsel for
Petitioner filed a Notice of Appeal on March 10, 2014. (ECF
No. 37-3.) On October 29, 2014, a Writ of Certiorari to the
South Carolina Supreme Court was filed on Petitioner's
behalf. (ECF No. 37-4.) The South Carolina Supreme Court
denied the petition for certiorari without making specific
findings on any of Petitioner's issues (ECF No. 37-6),
and issued the Remittitur on March 20, 2015. (ECF No. 37-7.)
On May 26, 2015, Petitioner filed a pro se Petition
for Writ of Habeas Corpus. (ECF No. 1-3.) This court accepts
that Petitioner has exhausted his state-court remedies prior
to seeking habeas corpus relief, pursuant to 28 U.S.C. §
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Rule 73.02 for the District
of South Carolina. The Magistrate Judge's Report is only
a recommendation to this court, and has no presumptive
weight-the responsibility to make a final determination
remains with this court. See 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 objections are made. Id.
The court may accept, reject, or modify, in whole or in part,
the Magistrate Judge's recommendation or recommit the
matter with instructions. See 28 U.S.C. §
judgment is appropriate when the materials in the record show
that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). In determining whether a
genuine issue has been raised, the court must weigh all
evidence and draw all justifiable inferences in favor of the
non-movant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
party seeking summary judgment shoulders the initial burden
of demonstrating to the district court that there is no
genuine issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the movant has
made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the
allegations averred in his pleadings. Rather, the non-moving
party must demonstrate that specific, material facts exist
which give rise to a genuine issue. See Id. at 324.
Under this standard, the existence of a mere scintilla of
evidence in support of the petitioner's position is
insufficient to withstand the summary judgment motion.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986). Likewise, conclusory allegations or denials,
without more, are insufficient to preclude the granting of
the summary judgment motion. See Ross v. Commc'ns
Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985).
“Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude
the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248.
pro se filed documents should be “liberally
construed, ” held to a less stringent legal standard
than those complaints or proceedings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, even liberally construed, objections to a Report
must specifically identify portions of the Report and the
basis for those objections. Fed.R.Civ.P. 72(b)(2).
timely filed objections to the Magistrate Judge's Report
and Recommendation on July 15, 2016. (ECF No. 71.) However,
though Petitioner outlines his objections in great detail,
reiterating each of the five grounds brought up in his Petition
and in the Report, very little new information is brought to
this court's attention that was not sufficiently
addressed by the Magistrate's Report. The new information
that Petitioner does present in his Objections mostly revolve
around claims relating to IAC.
argues that the Magistrate Judge erred by concluding his IAC
claims regarding plea counsel's handling of an audio tape
were without merit. In support of his claim, Petitioner
submits a July 1, 2013 letter written by Attorney George B.
Bishop Jr., (“Attorney Bishop”) to Petitioner.
(ECF No. 71-1.) The letter references the audio tape and
Petitioner's plea counsel. (Id.) Unfortunately
for Petitioner, the letter itself falls outside the federal
court's habeas review under § 2254(d)(1). The Court
in Cullen v. Pinholster found that the district
court should not have considered additional evidence that had
not been available to the state courts, because the federal
habeas scheme “leaves primary responsibility with the
state courts, ” and that to permit new evidence in a
federal habeas court ...