United States District Court, D. South Carolina, Rock Hill Division
Shawn D. Phillips, Petitioner,
Warden Larry Cartledge, Respondent.
PATRICK MICHAEL DUFFY, United States District Judge
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.
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.
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.
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.
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
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.
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.)
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.