United States District Court, D. South Carolina, Rock Hill Division
OPINION & ORDER
M. Herlong, Jr., Senior United States District Judge
matter is before the court for review of the Report and
Recommendation of United States Magistrate Judge Paige J.
Gossett, made in accordance with 28 U.S.C. §§
636(b)(1) and Local Civil Rule 73.02 for the District of
South Carolina. Tremain Orlando Davis
(“Davis”) is a state prisoner seeking habeas
corpus relief pursuant to 28 U.S.C. § 2254. In her
Report and Recommendation, Magistrate Judge Gossett
recommends granting the Respondent's motion for summary
judgment and denying Davis' petition.
Factual and Procedural Background
is currently incarcerated at the Broad River Correctional
Institution, a South Carolina Department of Corrections
(“SCDC”) facility. On November 8, 2011, Davis
pled guilty to armed robbery, murder, and possession of a
weapon during a violent crime. (§ 2254 Pet. 1, ECF No.
1.) Davis was sentenced to life imprisonment for murder, 30
years' imprisonment for armed robbery, and 5 years'
imprisonment for possession of a weapon during a violent
crime, to be served concurrently. (Resp't Mot. Summ. J.
Ex. 1 (App'x 197), ECF No. 18-1.) On December 9, 2011,
Davis moved for reconsideration of his sentence.
(Id. Ex. 3 (Mot. Reconsider), ECF No. 18-3.) The
trial court denied Davis' motion the same day.
(Id. Ex. 4 (Dec. 9, 2011 Order), ECF No. 18-4.)
appealed his guilty plea and sentence on December 14, 2011.
(Id. Ex. 5 (Not. Appeal), ECF No. 18-5.) The South
Carolina Court of Appeals affirmed Davis' conviction and
sentence in an unpublished opinion dated October 9, 2013.
(§ 2254 Pet. 2, ECF No. 1.) On August 22, 2014, Davis
filed an application for post-conviction relief
(“PCR”) raising ineffective assistance of counsel
claims. (Resp't Mot. Summ. J. Ex. 1 (App'x 224-25),
ECF No. 18-1.) An evidentiary hearing was held on June 16,
2015. (Id. Ex. 1 (App'x 230), ECF No. 18-1.) On
July 12, 2015, the PCR court denied Davis' PCR
application. (Id. Ex. 1 (App'x 277-84), ECF No.
18-1.) Davis filed a petition for writ of certiorari with the
South Carolina Supreme Court on February 23, 2016.
(Id. Ex. 10 (Petition for Writ of Cert.) ECF No.
18-10.) On June 16, 2016, the South Carolina Supreme Court
denied the petition for writ of certiorari. (Id. Ex.
13 (Jun. 16, 2016 Order), ECF No. 18-13.)
acting pro se, filed the instant § 2254 petition on July
21, 2016, raising ineffective assistance of counsel
claims. (§ 2254 Pet., ECF No. 1.) On December
13, 2016, Respondent filed a motion for summary judgment.
(Resp't Mot. Summ. J., ECF No. 19.) Davis responded on
January 18, 2017. (Pet'r Resp. Opp'n Mot. Summ. J.,
ECF No. 22.) On March 14, 2017, Magistrate Judge Gossett
issued her Report and Recommendation recommending granting
Respondent's motion for summary judgment and denying
Davis' petition. (R&R 12, ECF No. 31.) Within the
deadline for objections to the Report and Recommendation, the
court did not receive any objections from Davis. Having
received no objections, the court issued an order on April 4,
2017, adopting the Report and Recommendation. (Apr. 4, 2017
Order, ECF No. 35.) Davis filed a motion for an extension of
time on April 18, 2017. (Mot. Extension, ECF No. 38.) On April
21, 2017, the court granted Davis' motion. (Apr. 21, 2017
Order, ECF No. 39.) Davis timely filed objections on May 2,
2017. (Objs., ECF No. 47.) Therefore, the court
vacates the April 4, 2017 order adopting the Report and
Recommendation and will consider Davis' objections.
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). “[W]here 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. Cty. of
Chesterfield, Va., 95 F.3d 1263, 1265 (4th Cir. 1996)
(internal quotation marks and citation omitted). “[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) (internal
quotation marks and citation omitted).
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, ” the petitioner
has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28
U.S.C. § 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 legal 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 [a
petitioner'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).
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).
review, many of Davis' objections are nonspecific or
merely restate his claims. However, the court was able to
glean one specific objection. Davis objects that the
magistrate judge erred in finding that counsel was not
constitutionally ineffective for failing to object to his
plea colloquy. (Objs. 2-4, ECF No. 47.) Davis argues that he
did not admit guilt during the plea colloquy and was
improperly advised by the trial court to accept a guilty
plea. (Id. at 4, ECF No. 47.) As a result, Davis
argues that his plea was not knowing and voluntary and
counsel was ineffective for failing to advise him on the
circumstances of his plea. (Id., ECF No. 47.)
the absence of extraordinary circumstances, the truth of
sworn statements made during a [plea] colloquy is
conclusively established, and a district court should . . .
dismiss any [habeas petition] that necessarily relies on
allegations that contradict the sworn statements.”
Bradshaw v. McCall, No. 0:12-CV-03624-DCN, 2014 WL
463142, at *5 n.1 (D.S.C. Feb. 4, 2014) (unpublished)
(quoting United States v. Lemaster, 403 F.3d 216,
221 (4th Cir. 2005) (§ 2255 context)).
“in order to be valid, a plea of guilty must be
knowingly and voluntarily made.” Sargent v.
Waters, 71 F.3d 158, 161 n.2 (4th Cir. 1995). “A
voluntary and intelligent plea of guilty is an admission of
all the elements of a formal criminal charge and constitutes
an admission of all material facts alleged in the
charge.” United States v. Willis, 992 F.2d
489, 490 (4th Cir. 1993) (internal quotation marks and
citation omitted). “To attack the plea [based on the
ineffective assistance of counsel], [Davis] must show that
the advice he received was not within the range of ...