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Phillips v. Cartledge

United States District Court, D. South Carolina, Rock Hill Division

September 20, 2017

Shawn D. Phillips, Petitioner,
Warden Larry Cartledge, Respondent.


          PATRICK MICHAEL DUFFY, United States District Judge

         This matter is before the Court on Petitioner Shawn D. Phillips' objections to United States Magistrate Judge Paige J. Gossett's report and recommendation (“R & R”) (ECF Nos. 75 & 71). The Magistrate Judge recommends granting Respondent's motion for summary judgment (ECF No. 27) and denying Petitioner's petition for relief under 28 U.S.C. § 2254 (ECF No. 1). For the reasons stated herein, Respondent's motion for summary judgment is granted as to Petitioner's three grounds for relief, and Petitioner is granted leave to move to amend his petition. Petitioner shall have 14 days to move to amend and Respondent shall have 7 days to respond.


         Since the parties have no objections, the Court, finding no clear error, adopts the procedural background set out in the R & R without recitation. However, the Court will supplement the R & R with respect to recent filings relevant to the instant petition.

         On February 4, 2016, Petitioner filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254. After receiving two extensions of time, Respondent filed a return and a motion for summary judgment on July 25, 2016. On July 26, 2016, the Court filed a Roseboro order, informing Petitioner of the dismissal/summary judgment procedures and the possible consequences for failing to respond. After Petitioner failed to meet the first deadline, the Court entered an order on August 30, 2016, directing Petitioner to respond to Respondent's motion for summary judgment in fourteen days. On September 6, 2016, the Court granted Petitioner's motion for an extension of time, but Petitioner still failed to timely respond. Accordingly, the Court, adopting the recommendation of the Magistrate Judge, dismissed Petitioner's case for failure to prosecute on November 8, 2016.

         On November 23, 2016, attorney Alex Apostolou filed a motion for leave to appear and a motion to reopen the case and amend the petition on Petitioner's behalf. On December 12, 2016, Respondent filed a response, objecting to Petitioner's motion to amend the petition. On January 3, 2017, the Court granted Petitioner's motion for leave to appear. Additionally, the Court granted in part and denied in part Petitioner's motion to reopen the case and amend the petition. After receiving two more extensions of time, Petitioner filed his response to Respondent's motion for summary judgment on March 2. Respondent replied on March 16. On April 28, the Magistrate Judge issued an R & R, recommending that the Court grant Respondent's motion for summary judgment. On June 1, Petitioner filed objections to the R & R, and Respondent replied on June 20. Accordingly, this matter is now ripe for 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).

         Although Phillips currently has counsel, Phillips filed the petition at issue pro se. Consequently, the Court conducts its review of the petition with an eye towards its duty to construe pro se filings liberally. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). That, however, does not mean the Court can ignore a clear failure to allege facts that set forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).


         I. Ground One

         In ground one, Petitioner raises the following issue, quoted verbatim: “The P.C.R. Court erred in falling grant petitioner post. conviction relief and new trail. The guns issue at dispute state never proven there burden[.]” (Pet., ECF No. 1, at 5.) In her R & R, the Magistrate Judge found that ground one and its supporting facts were nonsensical and “too vague to adequately state a claim upon which relief can be granted.” (R & R, ECF No. 71 at 10.) Further, the Magistrate Judge found “that the legal issues presented in [Petitioner's] response to the motion for summary judgment that were not clearly presented in the Petition are not properly before the court, even if those issues were intended to address Ground One of the Petition.” (Id. at 11.) Accordingly, the Magistrate Judge recommended the Court grant summary judgment to Respondent on ground one. In his objections, Petitioner requests leave to amend the petition to clarify ground one and “to challenge the admission of the pistol which was excluded from the co-defendant's trial.” (Pet'r's Objs., ECF No. 75, at 1.)

         Initially, the Court notes that it agrees with the Magistrate Judge's findings regarding ground one. As to Petitioner's renewed request for leave to amend his petition, the Court reiterates that if Petitioner wished to amend his petition he should have done so in an appropriate motion, instead of requesting leave to amend his petition in his objections. Cf. Barclay White Skanska, Inc. v. Battelle Mem'l Inst., 262 F. App'x 556, 563 (4th Cir. 2008) (citing Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)) (“At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a). A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.”); Mincey v. World Sav. Bank, FSB, 614 F.Supp.2d 610, 625 (D.S.C. 2008) (quoting Booker v. Wash. Mut. Bank, F.A., 375 F.Supp.2d 439, 441 (M.D. N.C. 2005)) (“A memorandum in opposition or response . . . cannot remedy the defects in a party's complaint . . . . Instead, the remedy for an insufficient complaint is amendment under Rule 15 of the Federal Rules of Civil Procedure . . . .”) (internal quotation marks omitted). The Court notes that it would reach the same conclusion had Petitioner not retained counsel, but Petitioner did retain counsel and counsel has nonetheless failed to make an appropriate motion under Rule 15. Accordingly, the Court adopts the R & R and grants summary judgment to Respondent on ground one.

         II. ...

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