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Moore v. Bush

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

August 15, 2017

John J. Moore, Jr., Petitioner,
v.
Warden Bush, Respondent.

          ORDER

          PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE

         This matter is before the court on Petitioner's objections to United States Magistrate Judge Kaymani D. West's report and recommendation (“R & R”) (ECF Nos. 22 & 17). The Magistrate Judge recommends granting Respondent's summary judgment motion (ECF No. 10) and denying Petitioner's petition for relief under 28 U.S.C. § 2254. Petitioner has filed a number of other non-meritorious motions that are disposed of in footnote two.

         Magistrate Judge West issued her R & R on May 4. Petitioner filed his objections to the R & R on May 24, and Respondent filed a reply on June 7. Accordingly, this matter is now ripe for review.

         STANDARD OF REVIEW

         The Magistrate Judge makes only a recommendation to this Court. The R & R has no presumptive weight, and the responsibility for making a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). Parties may make written objections to the R & R within fourteen days after being served with a copy of it. 28 U.S.C. § 636(b)(1). This Court must conduct a de novo review of any portion of the R & R to which a specific objection is made, and it may accept, reject, or modify the Magistrate Judge's findings and recommendations in whole or in part. Id. Additionally, the Court may receive more evidence or recommit the matter to the Magistrate Judge with instructions. Id. A party's failure to object is taken as the party's agreement with the Magistrate Judge's conclusions. See Thomas v. Arn, 474 U.S. 140 (1985). Absent a timely, specific objection-or as to those portions of the R & R to which no specific objection is made-this Court “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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         DISCUSSION

         The Magistrate Judge recommends granting summary judgment on all of Petitioner's grounds for relief. Petitioner's objections relate only to his first four grounds, so the Court addresses the unobjected to grounds first.

         I. Grounds 5-11

         In grounds five through eleven of his habeas petition, Petitioner alleges various claims of ineffective assistance of counsel against his PCR counsel. Petitioner has not objected to Magistrate Judge West's analysis of grounds five through eleven of his petition. The Court has reviewed that portion of the R & R for clear error and, finding none, adopts it as its opinion. See Diamond, 416 F.3d at 315 (quoting Fed.R.Civ.P. 72 advisory committee's note). Having so concluded, the Court turns to Petitioner's objections to Magistrate Judge West's analysis of his other claims.

         II. Grounds 1-4

         a. Ground One

         In his first ground, Petitioner argues that the PCR court erred in denying his claim of ineffective assistance of counsel based on trial counsel's failure to request a tailored jury instruction that a vehicle could be considered a deadly weapon when the jury evaluated Petitioner's self-defense claim. In her R & R, the Magistrate Judge found that the PCR's court application of Strickland v. Washington, 466 U.S. 668 (1984), to this ground was not unreasonable. Specifically, the Magistrate Judge found that trial counsel was not deficient for failing to request Petitioner's proposed charge because Petitioner was not entitled to such a charge. Additionally, the Magistrate Judge found that Petitioner was not prejudiced because the trial judge adequately instructed the jury on self-defense, because trial counsel was able to address the danger posed by the victim's swerving vehicle in his closing argument, and because trial counsel's main defense theory was not self-defense, but rather that Petitioner's passenger was the shooter.

         When addressing the deficiency prong of Strickland, the PCR court found that Petitioner “failed to establish that any sanctioned jury charge exists for counsel to have requested, ” and that Petitioner has failed to establish the relevant case law upon which such a jury charge could be founded, or to support the legality of such a charge.” (App., Order Dismissal, ECF No. 9-4, at 50.) Additionally, the PCR court found that the given charge was “a correct statement on the law of self-defense as it stood at the time of [Petitioner's] trial.” (Id.) “[Q]uestions of jury instructions are matters of state law, not cognizable on federal review, unless a specific constitutional issue is implicated that calls into question the Due Process Clause.” Alexander v. Cartledge, No. 6:16-cv-0600-HMH-KFM, 2017 WL 770570, at *5 (D.S.C. Feb. 28, 2017) (citing Grandison v. Corcoran, 78 F.Supp.2d 499, 507 (D. Md. 2000)). Here, the PCR court determined that there was no sanctioned South Carolina jury charge regarding use of a vehicle as a deadly weapon, and that court also determine that the jury charge on self-defense was a correct statement of South Carolina law. Petitioner has not presented any evidence to this Court that his requested charge exists, nor has he presented a Due Process Clause challenge to the given charge. Accordingly, the Court will not interfere with the PCR court's determination of state law.

         b. ...


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