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Johnson v. McFadden

United States District Court, D. South Carolina, Anderson/Greenwood Division

August 2, 2017

Terrance D. Johnson, Petitioner,
v.
Warden Joseph McFadden, Respondent.

          ORDER AND OPINION

          J. Michelle Childs, United States District Judge

         Petitioner Terrance D. Johnson (“Petitioner”) filed this Pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) on November 3, 2016. (ECF No. 1.) On February 6, 2017, Respondent filed a Motion for Summary Judgment. (ECF No. 14.) On March 13, 2017, Petitioner filed a response to Respondent's Motion for Summary Judgment (ECF No. 14), and Respondent filed a reply on March 17, 2017 (ECF No. 22).

         In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Jacquelyn D. Austin for pre-trial handling. On June 29, 2017, the Magistrate Judge issued a Report and Recommendation (“Report”) recommending that the court to deny Petitioner's habeas corpus petition and grant Respondent's Motion for Summary Judgment. (ECF No. 23.) This review considers Petitioner's Objection to Report and Recommendation (“Objections”), filed on July 13, 2017. (ECF No. 14.) For the reasons set forth herein, the court ACCEPTS the Magistrate Judge's Report. The court thereby DENIES Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and GRANTS Respondent's Motion for Summary Judgment.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         The facts viewed in the light most favorable to Petitioner are discussed in the Report. (See ECF No. 23.) The court concludes, upon its own careful review of the record, that the Magistrate Judge's factual summation is accurate and incorporates it by reference. The court will only recite herein facts pertinent to the analysis of Petitioner's Objections. Petitioner is an inmate incarcerated at Lieber Correctional Institution in the South Carolina Department of Corrections. (ECF No. 1.) In June 2004, Petitioner was indicted for trafficking cocaine and possessing a weapon during the commission of a violent crime in Charleston County, South Carolina (hereafter “State”). (ECF No. 13-1.) On March 10, 2006, a jury returned a guilty verdict against Petitioner for trafficking cocaine (second offense) and possessing a weapon during the commission of a violent crime. (ECF No. 13-2 at 260.) Petitioner was subsequently sentenced to life imprisonment for these offenses. (ECF No. 13-2 at 282.)

         Petitioner filed an appeal of his State sentence in the South Carolina Court of Appeals (hereafter “Court of Appeals”). (ECF No. 13-4.) Chief Appellate Defender Robert M. Dudek represented Petitioner on this direct appeal. On August 29, 2011, the Court of Appeals affirmed Petitioner's conviction and sentence. (ECF No. 13-6.) Remittitur was issued on September 14, 2011. (ECF No. 13-7.) On September 15, 2011, Petitioner, proceeding pro se, filed a petition for rehearing. (ECF No. 13-8.) In a letter dated September 16, 2011, the Court of Appeals returned this petition, informing Petitioner that it no longer had jurisdiction over the case because his case was remitted to the Charleston County Clerk's office prior to receiving Petitioner's petition for rehearing. (ECF No. 13-9.)

         On December 13, 2011, Petitioner, proceeding pro se, filed an application for post-conviction relief (“PCR”). (ECF No. 13-2 at 280-90.) Petitioner alleged he was held unlawfully based on the allegations of ineffective assistance of counsel, and due process violations to include the Fourth, Fifth, Sixth, and Fourteenth Amendments. (ECF No. 13-2 at 286.) The State filed a return, dated June 20, 2012. (ECF No. 13-2 at 291-96.)

         A PCR hearing was held on November 21, 2013, and Petitioner was represented at this hearing by Attorney Christopher L. Murphy. (ECF No. 13-2 at 297-355.) On December 1, 2014, the PCR court filed an order denying and dismissing Petitioner's PCR application with prejudice. (ECF No. 13-2 at 342-55.) A notice of appeal was timely filed and served. (ECF No. 13-11.) Attorney Tiffany L. Butler (“Butler”) of the South Carolina Commission on Indigent Defense filed a Johnson Petition for Writ of Certiorari on Petitioner's behalf in the Supreme Court of South Carolina, dated August 26, 2015. (ECF No. 13-12.) Attorney Butler also filed a petition to be relieved as counsel. (ECF No. 13-10.) On September 21, 2015, Petitioner filed a pro se Petition for Writ of Certiorari in the South Carolina Supreme Court. (ECF No. 13-13.) The court remitted the matter to the lower court on July 5, 2016. (ECF No. 13-15.)

         II. STANDARD OF REVIEW

         The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Matthews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and 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. § 636 (b)(1).

         Objections to a Report and Recommendation must specifically identify portions of the Report and the basis for those objections. Fed.R.Civ.P. 72(b). “[I]n 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.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). Failure to timely file specific written objections to a Report will result in a waiver of the right to appeal from an Order from the court based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the plaintiff fails to properly object because the objections lack the requisite specificity, then de novo review by the court is not required.

         As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).

         III. DISCUSSION

         Petitioner's Objections to the Magistrate Judge's Report are merely a restatement of the underlying claims contained in his habeas corpus petition and are ...


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