United States District Court, D. South Carolina, Orangeburg Division
PATRICK MICHAEL DUFFY, United States District Judge
matter is before the Court on Petitioner's objections to
United States Magistrate Judge Kevin F. McDonald's report
and recommendation (“R & R”) (ECF Nos. 28,
27, & 23). The Magistrate Judge recommends granting
Respondent's summary judgment motion (ECF No. 11) and
denying Petitioner's petition for relief under 28 U.S.C.
§ 2254 (ECF No. 1).
Judge McDonald issued his R & R on June 28. Petitioner
filed his first objections to the R & R on July 21, and
filed amended objections later that same day. Finally,
Respondent filed his reply on August 4. Accordingly, this
matter is now ripe for review.
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
Magistrate Judge recommends granting summary judgment on all
of Petitioner's grounds for relief. Petitioner has only
raised objections to the R & R's analysis of grounds
one and two. Having reviewed the rest of the R & R for
clear error and finding none, the Court proceeds to grounds
one and two.
first objects to the R & R's conclusion that his
trial counsel was not ineffective for failing to call an
alibi witness, Daisy Feaster,  at trial. Petitioner asserts that
the South Carolina Supreme Court's determination that
Petitioner's trial counsel was effective despite failing
to call a known alibi witness was legal error. As support for
that assertion, Petitioner argues that the South Carolina
Supreme Court should have looked to Daisy's testimony at
Petitioner's burglary trial, rather than her testimony at
Petitioner's PCR hearing in this case, when deciding
whether Petitioner's counsel was ineffective for failing
to call her as an alibi witness. Petitioner contends that
Daisy's more contemporaneous testimony at his burglary
trial in 2007 bears more weight than her testimony at his PCR
hearing five years later. Petitioner argues that the South
Carolina Supreme Court committed a legal error by relying on
that PCR testimony when deciding Petitioner's case.
Finally, Petitioner also asserts that the Magistrate Judge
failed to address the fact that the State used 8:00 PM as the
time of the crime at trial.
initial matter, it is not clear why Petitioner argues that
the State gave 8:00 PM as the time of the crime.
Petitioner's lone citation to the record for that
argument refers to the prosecution's statement reflecting
the approximate time that the victim and
another man left to go pick Petitioner up at
Daisy's house. Thus, that reference indicates the
State's view that the crime took place sometime after
8:00 PM, but not at 8:00 PM. Accordingly, the Magistrate
Judge did not err by failing to address an argument that was
not grounded in fact.
the Court turns to the South Carolina Supreme Court's
factual determination that Daisy's testimony would not
have established an alibi for Petitioner because her
testimony did not render Petitioner's guilt factually
impossible as required under South Carolina law. See
State v. Robbins, 271 S.E.2d 319, 320 (S.C. 1990). Under
28 U.S.C. § 2254(e)(1), factual determinations made by
the state court “shall be presumed to be correct,
” and the petitioner has “the burden of rebutting
the presumption of correctness by clear and convincing
evidence.” The Court concludes that Petitioner has not
overcome § 2254(e)(1)'s presumption of correctness.
Even Daisy's burglary trial testimony still supports the
South Carolina Supreme Court's determination. As
discussed in the R & R, Daisy stated on cross-examination
in her burglary trial testimony that Petitioner was at her
home when she left to go shopping “about 8:30 or 9:00
o'clock.” (R., ECF No. 12-7, at 212.) Importantly,
the South Carolina Supreme Court noted that Daisy's home
is “less than two miles from the scene of the
shooting.” Teamer v. State, Nos. 2013-001303,
2016-MO-013, 2016 WL 1458176, at *2 (S.C. 2016).
“Therefore, it was not physically impossible for
[Petitioner] to have been at the Feasters' house at the
time Daisy left to go shopping ‘about 8:00
something' and to have committed the shootings just
before 8:46 p.m.” Id. The Court concludes that
it was not unreasonable for the South Carolina Supreme Court
to determine that it was physically possible for Daisy to
leave her house at 8:30 and for the Petitioner to still
commit the shootings before 8:46. Thus, for the reasons
stated herein and in the R & R, Petitioner's
objection is overruled.
Petitioner objects to the trial judge's jury charge
stating that “your sole objective is to simply reach
the truth of the matter” and “simply give both
the state and the defendant a fair and impartial
trial.” (R., ECF No. 12-2, at 24.) Five years after
Petitioner's trial, the South Carolina Supreme Court
stated in State v. Daniels that trial judges should
exclude such language from future jury charges because
“[s]uch a charge could effectively alter the jury's
perception of the burden of proof.” 737 S.E.2d 473, 475
(S.C. 2012). However, the South Carolina Supreme Court
nonetheless affirmed the defendant's conviction in
Daniels in spite of the fact that a majority of that
court held that the defendant's objection to the trial
judge's jury charge was preserved. Id. at 477.
The court held that jury charges must be viewed as a whole,
and “‘if as a whole they are free from error, any
isolated portions which may be misleading do not constitute
reversible error.'” Id. (quoting State
v. Aleksey, 538 S.E.2d 248, 251 (S.C. 2000)). Having
concluded that the charge as a whole was free from error, the
South Carolina Supreme Court affirmed the defendant's
conviction in spite of ...