United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
Richard Mark Gergel, United States District Court Judge.
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending summary judgment for
Respondent and dismissal of the petition for habeas relief
under 28 U.S.C. § 2254. For the reasons set forth below,
the Court adopts the Report and Recommendation.
was driving a vehicle on 1-85 in Greenville, South Carolina
when Officer Chi Blair stopped him for tailgating.
Petitioner's girlfriend was a passenger in
Petitioner's vehicle; Butts County, Georgia Deputy
Sheriff Mike Broce was a passenger in Officer Blair's
vehicle. During the stop, Petitioner told Officer Blair that
his driver's license was under suspension. Officer Blair
also noticed the smell of marijuana. He questioned Petitioner
about the smell and Petitioner told Officer Blair that his
girlfriend was hiding marijuana. She then produced a bag of
marijuana from her trousers. Officer Blair and Deputy Broce
then searched Petitioner's vehicle and found
approximately two kilograms of cocaine taped inside a speaker
box in the rear of the vehicle. Petitioner ultimately was
convicted of cocaine trafficking and was sentenced to thirty
appealed his conviction to the South Carolina Court of
Appeals, which affirmed the conviction. Petitioner then
applied for post-conviction ("PCR") relief, which
was denied. He appealed that denial with a certiorari
petition to the South Carolina Supreme Court, which was
denied. Petitioner then timely filed the present habeas
action, which was referred to the Magistrate Judge by local
rule. Petitioner asserts four grounds for relief: (1) trial
counsel was ineffective for failing to research and
investigate the facts of the case, (2) trial counsel was
ineffective for not moving to suppress statements made by
Petitioner without a Miranda warning, (3) trial
counsel was ineffective for failing to object to the Georgia
Deputy Sheriffs purportedly unauthorized presence in South
Carolina and for "failing to interview and investigate
the states witness, " and (4) trial counsel was
ineffective for failing to object to inadmissible hearsay and
character evidence testimony. Respondent moved for summary
judgment, and on June 14, 2017, the Magistrate Judge
recommended granting summary judgment for Respondent.
Petitioner timely filed objections to the Report and
Report and Recommendation of the Magistrate Judge
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. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
proper objection is made to a particular issue, "a
district court is required to consider all arguments directed
to that issue, regardless of whether they were raised before
the magistrate." United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional
evidence is committed to its discretion, and any refusal will
be reviewed for abuse." Doe v. Chao, 306 F.3d
170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to
introduce new evidence after the magistrate judge has acted
are disfavored, " though the district court may allow it
"when a party offers sufficient reasons for so
doing." Caldwell v. Jackson, 831 F.Supp.2d 911,
914 (M.D. N.C. 2010) (listing cases).
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts." Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party."
HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,
101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking
summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
the moving party has made this threshold demonstration, the
non-moving party, to survive the motion for summary judgment,
may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must
demonstrate that specific, material facts exist that give
rise to a genuine issue. Id. Under this standard,
"[c]onclusory or speculative allegations do not suffice,
nor does a 'mere scintilla of evidence'" in
support of the non-moving party's case. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSX Transp., Inc., 190
F.3d 285, 287 (4th Cir. 1999)).