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Commander v. McFadden

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

January 18, 2018

Christopher Sam Commander, Petitioner,
v.
Warden Joseph McFadden, Respondent.

          ORDER

          TIMOTHY M. CAIN, UNITED STATES DISTRICT JUDGE.

         Petitioner Christopher Sam Commander (“Commander”), a state prisoner proceeding pro se, is seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. Before the court is the magistrate judge's Report and Recommendation (“Report”), recommending that the court grant Respondent's motion for summary judgment (ECF No. 27), deny Commander's motion for discovery (ECF No. 43), and dismiss Commander's petition (ECF No. 53). The parties were advised of their right to file objections to the Report. (ECF No. 53-1). Respondent filed timely objections. (ECF No. 55). Petitioner did not file any objections, and the time to do so has now run. For the reasons stated below, the court adopts the Report as modified below. Accordingly, Respondent's motion for summary judgment (ECF No. 28) is granted.

         The Report has no presumptive weight and the responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In the absence of objections to the Report, this court is not required to provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, 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.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         I. Background/Procedural History

         The magistrate judge sets forth the background and procedural history in detail in her Report. (Report at 2-20). Briefly, on January 7, 2005, family members found Gervonya Goodwin's partially decomposed body inside her home. Family members had not seen or spoken with Goodwin since November 29, 2004. Goodwin's purse, cell phone, and car were missing. Commander was arrested in New Orleans with Goodwin's car, and he admitted to officers that he had killed Goodwin.

         Commander was indicted for murder and after a six day jury trial beginning October 10, 2006, the jury found Commander guilty of murder. He was sentenced to life imprisonment without the possibility of parole. Commander filed a direct appeal raising two issues on appeal:

1) Whether the court erred by ruling pathologist Dr. Clay Nichols could testify that from the circumstances which followed the decedent's death, such as her automobile and other property being taken by her boyfriend, appellant, for his own use, and the apparent “cover-up” that he opined her death was a homicide, and also was not an accident, since Dr. Nichols opinion in this regard was not admissible under Rule 702, SCRE because this opinion was not based on scientific, technical or other specialized knowledge that was beyond a judgment the jury could make on its own?
2) Whether the court erred by refusing to charge the defense of accident where jailhouse snitch and “jailhouse lawyer” John Pressley testified appellant told him in one statement that he accidentally killed the decedent, but later changed his statement when Pressley told appellant no one would believe him, since Pressley's testimony that appellant first told him the decedent's death was an accident was evidence of accident mandating that instruction.

         (ECF No. 26-5 at 6). On June 11, 2009, the South Carolina Court of Appeals affirmed his conviction and sentence on June 11, 2009. State v. Commander, 681 S.E.2d 31 (S.C. Ct. 2009). (ECF No. 26-7 at 3-12).

         Commander then filed a petition for a writ of certiorari with the South Carolina Supreme Court raising the following issues:

1) Whether the Court of Appeals erred by ruling pathologist Dr. Clay Nichols could testify that from the circumstances which followed the decedent's death, such as her automobile and other property being taken by her boyfriend, petitioner, for his own use, and the apparent “cover-up” that he opined her death was a homicide, and also was not an accident, since Dr. Nichols opinion in this regard was not admissible under Rule 702, SCRE because this opinion was not based on scientific, technical or other specialized knowledge that was beyond a judgment the jury could make on its own?
2) Whether the Court of Appeals erred by refusing to charge the defense of accident where jailhouse snitch and “jailhouse lawyer” John Pressley testified petitioner told him in one statement that he accidentally killed the decedent, but later changed his statement when Pressley told petitioner no one would believe him, since Pressley's testimony that petitioner first told him the decedent's death was an accident was evidence of accident mandating that instruction?

(ECF No. 26-8 at 4). The court granted the petition on November 17, 2010. (ECF No. 26-10 at 1). On October 31, 2011, the South Carolina Supreme Court affirmed the South Carolina Court of Appeals' decision as modified. State v. Commander, 721 S.E.2d 413 (S.C. 2011). (ECF No. 26-13).

         Commander subsequently filed an application for post-conviction relief (“PCR”) on June 1, 2012, raising the following issues, quoted verbatim: 1) ineffective assistance of counsel, 2) failure to investigate, and 3) denial of 5th, 6th and 14th Amends. U.S. Const. (ECF No.26-3 at 435). As facts to support his grounds, Petitioner stated: “a) Counsel did not render reasonable proff. assistance. b) ...


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