United States District Court, D. South Carolina, Florence Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge.
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Thomas E. Rogers, III, made
in accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02 of the District of South Carolina. Mark McCoy
(“McCoy”) is a pro se state prisoner seeking
habeas corpus relief pursuant to 28 U.S.C. § 2254. In
his Report and Recommendation, Magistrate Judge Rogers
recommends granting Respondent's motion for summary
judgment and dismissing McCoy's petition without an
Factual and Procedural Background
is currently incarcerated at the Broad River Correctional
Institution, a South Carolina Department of Corrections
facility. In September 2008, McCoy was indicted in South
Carolina state court on charges of murder and possession of a
firearm during the commission of a violent crime. (Mem. Supp.
Mot. Summ. J. Ex. 3 (App'x 604-05), ECF No. 14-3.) After
a jury trial, McCoy was found guilty on September 25, 2008.
(Id. Ex. 1 (App'x 211), ECF No. 14-1.) McCoy was
sentenced to life imprisonment for murder and five years'
imprisonment for the possession of a firearm, to be served
consecutively. (Id. Ex. 1 (App'x 227), ECF No.
appealed his conviction on October 21, 2008. (Id.
Ex. 6 (Notice of Appeal), ECF No. 14-6.) The South Carolina
Court of Appeals affirmed McCoy's conviction on June 8,
2011. (Id. Ex. 9 (Court of Appeals Order), ECF No.
14-9.) On June 5, 2012, McCoy filed an application for
post-conviction relief (“PCR”) raising the
1. Ineffective assistance of counsel:
a. “[F]ailure to continue his objection to the false
material evidence being used by the solicitor; that counsel
previously objected to.”
b. “[F]ailure to request trial judge to instruct jury
on the lesser included offense of voluntary
c. “[F]ailure to object to trial judge's
instruction to the jury to find applicant guilty of the
2. Prosecutorial misconduct:
a. Violation of Brady v. Maryland, 373 U.S. 83
b. “Material evidence suppressed by prosecution.”
3. Due Process violations:
a. “[W]hen the Magistrate Judge issued arrest warrant
based on information that never existed for probable
b. “[A]s a result of prosecutorial misconduct by
Solicitor Fant, Special Agent, and Police withholding crucial
prosecution's witnesses statements of facts
. . . .”
c. “[V]iolated by Solicitor Fant's misconduct
making promise and favor (agreements) within the criminal
justice system with crucial witness and not correcting her
false information to the jurors (solicitors).”
d. “[A]s a result of the misconduct by the solicitor,
in regard of suppressing evidence that was material, before
and during applicant's trial thus the material evidence
exposes solicitor deliberately allowing [or] overlooking
false testimony from crucial federal inmate witnesses along
with solicitor misleading court and juror's with false
e. “[V]iolated by the trial judge's erroneous
instruction to find the applicant guilty, even if the
evidence does not convince the jury.”
(Mem. Supp. Mot. Summ. J. Ex. 3 (App'x 588), ECF No.
14-3.) An evidentiary hearing was held on February 27, 2014.
(Id. Ex. 2 (App'x 454), ECF No. 14-2.) On May
23, 2014, the PCR court denied McCoy's PCR application.
(Id. Ex. 3 (App'x 587), ECF No. 14-3.) McCoy
filed a petition for a writ of certiorari with the South
Carolina Supreme Court on March 25, 2014. (Id. Ex.
12 (Pet. for Writ of Cert.), ECF No. 14-12.) On February 12,
2015, the South Carolina Supreme Court denied the petition
for writ of certiorari. (Id. Ex. 15 (Feb. 10, 2014
Order), ECF No. 14-15.)
acting pro se, filed the instant § 2254 petition on
February 24, 2016,  raising due process and ineffective
assistance of counsel claims. (§ 2254 Pet., ECF No. 1.)
On May 2, 2016, Respondent filed a motion for summary
judgment. (Mot. Summ. J., ECF No. 28.) On August 22, 2016,
McCoy responded. (Resp. Opp. Summ. J., ECF No. 29.)
Respondent replied on September 1, 2016. (Reply, ECF No. 30.)
On October 21, 2016, Magistrate Judge Rogers recommended
granting Respondent's motion for summary judgment and
denying McCoy's petition. (Report & Recommendation,
ECF No. 31.) McCoy timely filed objections on November 15,
2016. (Objs., ECF No. 38.) Respondent filed a
response on December 2, 2016. (Resp. Opp'n Objs., ECF No.
41.) This matter is now ripe for consideration.
Discussion of the Law
Summary Judgment Standard
judgment is appropriate only “if the movant shows 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 deciding whether a genuine issue of
material fact exists, the evidence of the non-moving party is
to be believed and all justifiable inferences must be drawn
in his favor. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). However, “[o]nly 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.” Id. at 248.
litigant “cannot create a genuine issue of material
fact through mere speculation or the building of one
inference upon another.” Beale v. Hardy, 769
F.2d 213, 214 (4th Cir. 1985). “Where the record taken
as a whole could not lead a rational trier of fact to find
for the non-moving party, disposition by summary judgment is
appropriate.” Monahan v. County of
Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).
“[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Ballenger v. N.C. Agric.
Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987).
Standard of Review in a § 2254 Petition
addition to the standard that the court must employ in
considering motions for summary judgment, the court must also
consider the petition under the requirements set forth in 28
U.S.C. § 2254. Under § 2254(d),
[a]n application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in the State court proceedings
unless the adjudication of the claim - (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.
“a determination of a factual issue made by a State
court shall be presumed to be correct, ” McCoy has
“the burden of rebutting the presumption of correctness
by clear and convincing evidence.” § 2254(e)(1).
With respect to reviewing the state court's application
of federal law, “‘a federal habeas court may
grant the writ if the state court identifies the correct
governing principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the facts of the
prisoner's case.'” Humphries v.
Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (quoting
Williams v. Taylor, 529 U.S. 362, 413 (2000)).
Further, “an ‘unreasonable application of federal
law is different from an incorrect application of federal
law, ' because an incorrect application of federal law is
not, in all instances, objectively unreasonable.”
Id. (quoting Williams, 529 U.S. at 410).
“Thus, to grant [McCoy's] habeas petition, [the
court] must conclude that the state court's adjudication
of his claims was not only incorrect, but that it was
objectively unreasonable.” McHone v. Polk, 392
F.3d 691, 719 (4th Cir. 2004).
filed objections to the Report and Recommendation. Objections
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Upon
review, the court finds that many of McCoy's objections
are non-specific, unrelated to the dispositive portions of
the magistrate judge's Report and Recommendation, or
merely restate his claims. However, the court was able to
glean several specific objections. McCoy objects that the
magistrate judge erred by (1) giving deference to the state