United States District Court, D. South Carolina, Florence Division
AMENDED ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
matter is before the Court on the Report and Recommendation
("R. & R.") of the Magistrate Judge (Dkt. No.
63) recommending that the Court grant Respondent's Motion
for Summary Judgment (Dkt. No. 41). For the reasons below,
this Court adopts the R. & R. as the order of the Court.
Respondent's Motion for Summary Judgment (Dkt. No. 41) is
Background and Relevant Facts
Magistrate has thoroughly summarized the facts of the case in
the R. & R. (Dkt. No. 63 at 2-7), and Petitioner has not
objected to those findings, so the Court need not repeat the
facts in detail here. Petitioner was found guilty of one
count of murder at the end of a jury trial held February 7-9,
2011. Later, proceeding pro se, Petitioner filed a
petition for writ of habeas corpus under 28 U.S.C. §
2254 on February 3, 2017. (Dkt. No. 1.) The Petition includes
the following allegations: (1) that the trial court lacked
subject matter jurisdiction; (2) that the trial court failed
to impeach the witnesses; (3) that trial counsel failed to
object and move the court to quash the indictment before the
jury was sworn; and (4) that trial counsel failed to move the
court for a directed verdict.
R. & R., the Magistrate recommended that this Court grant
summary judgment for Respondent on Ground One because
jurisdiction is a non-cognizable state law issue. (Dkt. No.
63 at 11). The Magistrate also recommended that this Court
grant Summary Judgment for Respondent on Petitioner's
ineffective assistance of counsel claims (Grounds Two, Three,
and Four) for several reasons. As to Ground Two, the
Post-Conviction Relief ("PCR") court's finding
that counsel's trial strategy for cross-examination was
valid is entitled to the presumption of correctness, and
Petitioner did not proffer any questions he thought his
counsel failed to ask. (Dkt. No. 63 at 15-16.) As to Ground
Three, Petitioner's claim that his trial counsel failed
to object and move to quash the indictment before the jury
was sworn, the Magistrate has explained that the PCR court
found that there was no legal basis to object to the failure
of the arresting officer to serve Petitioner with a warrant
when Petitioner had already been properly arrested for a
prior armed robbery, and that the indictment gave Petitioner
sufficient notice of the charges against him. (Id.
at 18-19) Finally, as to Petitioner's fourth allegation
that his counsel was ineffective for failing to move for a
directed verdict, the Magistrate explained that, in light of
the evidence of Petitioner's guilt, the PCR court
reasonably found that trial counsel's failure to move for
a directed verdict did not impact the outcome of the trial.
(Id. at 20-21.)
Legal Standard - Magistrate's Report and
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). This Court is charged with making a de
novo determination of those portions of the R. & R.
to which specific objection is made. Fed.R.Civ.P. 72(b)(2).
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). Where
the plaintiff fails to file any specific objections, "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." See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted).
has filed timely objections to the Magistrate's R. &
R. (Dkt. No. 65.) These objections are almost unintelligible
and do not specifically refer to any finding in the R. &
R. For example, Petitioner states that the R. & R.
"embodies fraud, " "is an instrument of
oppression, " and "highlights the arbitrary
exercise of power by government officials who redundantly
subvert the integrity of the Court." (Dkt. No. 65 at 1.)
Petitioner has not made a specific objection to any portion
of the R. & R., the Court need only satisfy itself that
the Magistrate has made no clear error on the face of the
record. Finding no clear error in the Magistrate's
determination that there is no basis for default judgment on
this habeas petition, the Court adopts the R. & R. as the
order of the Court.
reasons above, this Court adopts the R. & R. as the order
of the Court. Respondent's Motion for Summary Judgment
(Dkt. No. 41) is granted.