United States District Court, D. South Carolina, Charleston Division
28, 2016, Petitioner Jeremy Shay Sweat
(“Petitioner”) filed this pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (“Petition”) alleging police coercion
that resulted in incriminating statements, ineffective
assistance of plea counsel, and ineffective assistance of
appellant counsel. (ECF No. 1.) This matter is before the
court on Respondent's Motion for Summary Judgment (ECF
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
the matter was referred to United States Magistrate Judge
Mary Gordon Baker for pre-trial handling. On July 10, 2017,
the Magistrate Judge issued a Report and Recommendation
(“Report”) recommending that the court grant
Respondent's Motion for Summary Judgment and deny the
Petition. (ECF No. 41.) This review considers
Petitioner's Response to Respondent's Motion for
Summary Judgment (ECF No. 25), Petitioner's objection to
the Magistrate Judge's Report (“Objections”)
(ECF No. 70), Reply to Petitioner's Objections to the
Report (ECF No. 44), and Petitioner's Supplement to his
Objections (ECF No. 45). For the reasons set forth herein,
the court ACCEPTS the Magistrate Judge's
Report (ECF No. 41). The court thereby
GRANTS Respondent's Motion for Summary
Judgment (ECF No. 19) and DENIES
Petitioner's Petition (ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
facts viewed in the light most favorable to the Petitioner
are discussed in the Report. (See ECF No. 41.) 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
is incarcerated at Broad River Correctional Institution in
the South Carolina Department of Corrections
(“SCDC”). (ECF No. 1.) On October 4, 2007, a
Grand Jury in Clarendon County, South Carolina indicted
Petitioner for criminal sexual conduct in the first degree,
criminal sexual conduct, assault and battery with intent to
kill, and two counts of kidnapping. (ECF No. 18-2 at 19-21.)
Petitioner was represented by Harry Devoe, Esquire. (ECF No.
18-1 at 3.) On March 10, 2008, Petitioner pled guilty to all
five charges before the Honorable George C. James, Jr.; there
was a recommended cap of forty years. (ECF No. 18-1 at
32-37.) As to indictment number 2007-GS-14-0364, Judge James
sentenced Petitioner to thirty years for kidnapping, thirty
years for criminal sexual conduct in the first degree, and
twenty years for assault and battery with intent to kill.
(ECF No. 18-1 at 47-48.) A colloquy between Judge James and
Petitioner during sentencing appears to reflect that at least
one of these sentences runs consecutively to other
convictions as to this indictment. (Id.) As to
indictment number 2007-GS-14-0363, Petitioner was sentenced
to thirty years for kidnapping and thirty years for criminal
sexual conduct in the first degree to be served concurrently.
Petitioner's sentence, Mr. Devoe requested that since
Judge James did not consent to the recommended cap that he
should vacate Petitioner's guilty plea and allow him to
proceed to trial. (ECF No. 18-1 at 49.) However, Judge James
denied this request. (Id. at 48-49.) On March 19,
2008, Petitioner filed a Motion for Reconsideration,
requesting that Judge James “reconsider his sentence
and reduce said sentence to the offered forty year
cap.” (Id. at 51-52.) In October 2008, Judge
James denied Petitioner's Motion for Reconsideration.
(Id. at 54-55.)
through Attorney Devoe, filed a Notice of Appeal on April 7,
2009. (ECF No. 18-3.) However, on June 10, 2009, the appeal
was dismissed and his case was remitted to the lower court on
July 6, 2009. (ECF No. 18-1 at 56-57.)
February 10, 2010, Petitioner filed a pro se
Application for Post-Conviction Relief (“PCR”).
(ECF No. 18-1 at 58-70.) On March 20, 2012, through Attorney
Christina Dixon Parnall, Petitioner filed an Amended
Application for Post-Conviction Relief, in which he asserted
counsel was ineffective, and his guilty pleas were
involuntary. (Id. at 78-80.) On March 22, 2012, a
PCR evidentiary hearing was held before the Honorable W.
Jeffrey Young. (Id. at 79-157.) Petitioner was
represented by Christina Dixon Parnall, Esquire.
(Id. at 81.) In an order dated on or about July 3,
2012, Judge Young denied Petitioner's Application for
Post-Conviction relief and dismissed the petition.
(Id. at 180); (ECF No. 18-2 at 1-7).
November 5, 2012, Petitioner, through Attorney Parnall, filed
a “Rule 59(e) SCRCP, Motion to Alter or Amend
(“Rule 59(e) Motion”). (ECF No. 18-2 at 9-14.) In
an order dated November 6, 2014, Judge Young denied his Rule
59(e) Motion. (Id. at 15.)
26, 2015, Petitioner, through Attorney Laura R. Baer of the
South Carolina Commission on Indigent Defense, filed a
Petition for Writ of Certiorari. (ECF No. 18-5.) In an order
dated June 16, 2016, the Supreme Court of South Carolina
denied his Petition for Writ of Certiorari. (ECF No. 18-7)
and remitted the matter to the lower court on July 5, 2016.
(ECF No. 18-8.)
STANDARD OF REVIEW
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. §
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 petitioner fails to
properly object because the objections lack the requisite
specificity, then de novo review by the court is not
Petitioner 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 ...