United States District Court, D. South Carolina, Anderson/Greenwood Division
OPINION AND ORDER
CAMERON McGOWAN CURRIE, Senior United States District Judge
matter is before the court on Petitioner's pro
se application for writ of habeas corpus, filed in this
court pursuant to 28 U.S.C. § 2254. ECF No. 1.
Respondent filed a motion for summary judgment, as well as a
return and memorandum of law on August 15, 2016. ECF Nos. 15,
16. A Roseboro Order was mailed to Petitioner on
August 16, 2016, advising Petitioner of the importance of a
dispositive motion and the need for Petitioner to file an
adequate response. ECF No. 17. After two extensions of time
to respond, Petitioner filed a response in opposition on
December 1, 2016. ECF No. 26. Respondent filed a reply on
December 7, 2016. ECF No. 28.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2), DSC, this matter was referred to United States
Magistrate Judge Jacquelyn D. Austin for pre-trial
proceedings and a Report and Recommendation
(“Report”). On January 30, 2017, the Magistrate
Judge issued a Report recommending that Respondent's
motion for summary judgment be granted. ECF No. 29. The
Magistrate Judge advised Petitioner of the procedures and
requirements for filing objections to the Report and the
serious consequences if he failed to do so. Petitioner
received two extensions of time to file objections to the
Report, but failed to do so within the time period. The court
thereafter entered an Order adopting the Report, granting the
Government's motion for summary judgment, and dismissing
the matter with prejudice. ECF No. 39. However, Petitioner,
now represented by counsel, then filed a motion for leave to
file objections noting the deadline for objections was
miscalculated and resulted in Petitioner missing the previous
deadline. ECF No. 42. The court granted this motion, vacated
the Order at ECF No. 39, and allowed Petitioner fourteen (14)
days from entry of that Order to file his objections. ECF No.
44. Counsel for Petitioner timely filed objections on May 9,
2017. ECF No. 48. Respondent filed a reply on May 23, 2017.
ECF No. 56.
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).
through counsel, offers objections to each finding of the
Magistrate Judge, arguing grounds one, two, and six are not
procedurally defaulted as Petitioner can show cause and
actual prejudice; Petitioner should be granted relief on
grounds three and four because the PCR court's decision
was unreasonable; and Petitioner can show cause for default
of ground five because of ineffective appellate counsel. ECF
No. 48. Respondent's reply to objections argues in favor
of adopting the Magistrate Judge's Report on all grounds.
ECF No. 56.
grounds one and two, Petitioner argues he was denied due
process “under the Fourteenth and Fourth Amendments of
the U.S. Constitution when the prosecutor improperly moved
for an interlocutory appeal, ” and under the Fourteenth
Amendment when he was “subjected to an unlawful
wiretap.” ECF No. 48 at 5. The Magistrate Judge
found these grounds to be procedurally defaulted as they were
not raised in Petitioner's state appeal, and he failed to
show sufficient cause to excuse the default. ECF No. 29 at
21. Petitioner argues these denials of his constitutional due
process rights resulted in a fundamental miscarriage of
justice, and therefore “a federal habeas court may
grant Petitioner's writ of habeas corpus even in the
absence of a showing of cause for the procedural
default.” ECF No. 48 at 6.
one and two were not presented to the state appeals court,
and therefore are procedurally defaulted. Coleman v.
Thompson, 501 U.S. 722, 750 (1991) (When “a state
prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural
rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.”).
Although there are exceptions to this rule (i.e.,
for ineffective assistance of trial counsel), none applies to
grounds one and two here. While Petitioner argues he
establishes a fundamental miscarriage of justice through
alleged deprivations of his due process, and therefore need
not show cause, a petitioner must show “a
constitutional violation has probably resulted in the
conviction of one who is actually innocent.” Murray
v. Carrier, 477 U.S. 478, 496 (1986). Petitioner fails
to meet this standard of actual innocence. Schlup v.
Delo, 513 U.S. 298, 327 (1995) (“To establish the
requisite probability, the petitioner must show that it is
more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.”);
Bousley v. United States, 523 U.S. 614, 623 (1998)
(“[A]ctual innocence means factual innocence, not mere
legal insufficiency.”). As Petitioner cannot make the
requisite showing, grounds one and two are procedurally
Ineffective assistance of trial counsel
grounds three and four, Petitioner claims his trial counsel
was ineffective in failing to preserve the record regarding
the use of the audio recording (ground 3) and failing to move
for a mistrial based on the admission of the recorded
conversation (ground 4). The Magistrate Judge determined the
PCR court applied the correct legal standard reasonably in
finding Petitioner's trial attorney rendered reasonably
effective assistance under the Strickland standard.
ECF No. 29 at 24-28; see Strickland v. Washington,
466 U.S. 668 (1984). Petitioner objects, arguing trial
counsel was deficient and such deficient performance
prejudiced Petitioner, so that he meets the standard for
ineffective assistance of counsel. ECF No. 48 at 8-9.
Respondent argues Petitioner “failed to show error in
the Magistrate Judge's review.” ECF No. 56 at 5.
Petitioner argues his counsel's performance was deficient
under the Strickland test, this court is no longer
engaged in applying the Strickland test, but rather
determining whether the PCR court's application of the
test was unreasonable. 28 U.S.C. § 2254(d);
Harrington v. Richter, 562 U.S. 86, 100 (2011)
(“Federal habeas relief may not be granted for claims
subject to § 2254(d) unless it is shown that the earlier
state court's decision was contrary to federal law then
clearly established in the holdings of this Court; or that it
involved an unreasonable application of such law; or that it
was based on an unreasonable determination of the facts in
light of the record before the state court.”).
Therefore, in ineffective assistance of counsel claims, the
“pivotal question is whether the state court's
application of the Strickland standard was
unreasonable.” Harrington, 562 U.S. at 101.
“A state court must be granted a deference and latitude
that are not in operation when the case involves review under
the Strickland standard itself.” Id.
court agrees with the Magistrate Judge regarding the state
court's analysis of effectiveness of Petitioner's
trial counsel. The PCR court applied the correct legal
standard from Strickland, and the application was
reasonable. The PCR court analyzed the issue in detail,
finding trial counsel was not ineffective regarding the audio
recordings or mistrial. The facts regarding counsel's
representation show he strenuously pursued ...