United States District Court, D. South Carolina, Charleston Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
matter is before the court on Plaintiff's pro se
application for writ of habeas corpus, filed in this court
pursuant to 28 U.S.C. § 2254. ECF No. 1. Plaintiff
claims the “Post Conviction Relief Court erred”
when it found Plaintiff's trial counsel was not deficient
for failing to object to the trial judge entering the jury
room and engaging in out-of-court ex parte communications
with the jury, and when it determined counsel was not
deficient for failing to object to the court's
instruction on reasonable doubt. These issues were raised in
a Post Conviction Relief (“PCR”) application, but
were not included in a petition for writ of certiorari to the
South Carolina Supreme Court, as the petition only raised the
issue of potentially prejudicial testimony. Plaintiff claims
that he is able to establish cause to excuse this procedural
default regarding the claims submitted to the South Carolina
Supreme Court following his unsuccessful PCR action.
August 17, 2016, Defendant filed a motion for summary
judgment. ECF No. 14. A Roseboro Order was mailed to
Plaintiff on August 17, 2016, advising Plaintiff of the
importance of a dispositive motion and the need for Plaintiff
to file an adequate response. ECF No. 16.
filed a response in opposition to the summary judgment motion
on November 28, 2016. ECF No. 24.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(d), DSC, this matter was referred to United
States Magistrate Judge Mary Gordon Baker for pre-trial
proceedings and a Report and Recommendation
(“Report”). On December 6, 2016, the Magistrate
Judge issued a Report recommending that Defendants'
summary judgment motion be granted and Plaintiff's
application be dismissed with prejudice. ECF No. 25.
Specifically, the Magistrate Judge recommended that the
application be dismissed due to procedural default, which
Plaintiff was unable to overcome, and in the alternative,
that his application fails on the merits of his
ineffectiveness claims. The Magistrate Judge advised
Plaintiff of the procedures and requirements for filing
objections to the Report and the serious consequences if he
failed to do so. Plaintiff has filed no objections and the
time for doing so has expired, and Plaintiff's copy of
the Report has not been returned to the court.
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. See Matthews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo
determination of any portion of the Report of the Magistrate
Judge to which a specific objection is made. The court may
accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the
matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b). The court reviews the
Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in the absence of a timely filed objection, a district
court need not conduct a de novo review, but instead
must only satisfy itself that there is no clear error on the
face of the record in order to accept the
recommendation.”) (citation omitted).
reviewing the complaint, the motion, the applicable law, and
the Report and Recommendation of the Magistrate Judge, the
court finds no clear error. Accordingly, both conclusions of
the Report and Recommendation of the Magistrate Judge are
adopted and incorporated by reference. The court finds that
Plaintiff has procedurally defaulted on his claims of
ineffectiveness of trial counsel not raised in a petition for
writ of certiorari to the South Carolina Supreme Court;
although Plaintiff argued that he was able to show a reason
to excuse the default, his allegations of ineffective
appellate counsel (who drafted the petition) do not establish
cause for default. See Martinez v. Ryan, 132 S.Ct.
1309, 1315 (2012) (“Inadequate assistance of counsel at
initial-review collateral proceedings may establish cause for
a prisoner's procedural default of a claim of ineffective
assistance at trial.”); Johnson v. Warden of Broad
River Corr. Inst., No. 12-7270, 2013 WL 856731 (4th Cir.
Mar. 8, 2013) (“[B[ecause Johnson alleges only
ineffective assistance of appellate postconviction counsel,
his allegations do not constitute cause for his failure to
exhaust under the limited exception in
Martinez.”). In the alternative,
Plaintiff's claims of ineffective assistance of counsel
fail on the merits for the reasons stated by the Magistrate
motion for summary judgment is granted. This matter is
dismissed with prejudice.
governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing required
by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard
by demonstrating that reasonable jurists would find this
court's assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural ruling
by the district court is likewise debatable. See
Miller-El v. Cockrell,537 U.S. 322, 336 (2003);
Slack v. McDaniel,529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In
this case, the legal standard for the ...