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Parker v. Stirling

United States District Court, D. South Carolina, Aiken Division

August 9, 2017

Orlando Parker, #346628, Petitioner,
v.
Bryan Stirling, Respondent.

          ORDER AND OPINION

          Richard Mark Gergel, United States District Court Judge.

         This 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.

         I. Background

         Petitioner 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 years imprisonment.

         Petitioner 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 Recommendation.

         II. Legal Standard

         A. Report and Recommendation of the Magistrate Judge

         The 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).

         When a 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).

         B. Summary Judgment

         Summary 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. 317, 323(1986).

         Once 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)).

         C. Habeas Corpus

         1. Standa ...


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