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McGee v. McFadden

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

February 9, 2018

Shannon D. McGee, Sr., #147120, Petitioner,
v.
Warden Joseph McFadden, Respondent.

          ORDER

          PATRICK MICHAEL DUFFY, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Petitioner's objections to United States Magistrate Judge Shiva V. Hodges' report and recommendation (“R & R”) (ECF Nos. 31 & 25). The Magistrate Judge recommends granting Respondent's summary judgment motion (ECF No. 17) and denying Petitioner's petition for relief under 28 U.S.C. § 2254.

         Magistrate Judge Hodges issued her R & R on October 3, 2017. After receiving an extension, Petitioner filed his objections to the R & R on November 6. Accordingly, this matter is now ripe for review.

         STANDARD OF 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).

         Pro se filings are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and federal district courts must construe such pleadings liberally to allow the development of potentially meritorious claims, see Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam). The liberal construction requirement, however, does not mean courts can ignore a clear failure to allege facts that set forth claims cognizable in federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         DISCUSSION

         The Magistrate Judge recommends granting Respondent summary judgment on all of Petitioner's grounds for relief. Petitioner objects to that recommendation and has noted eight objections to the R & R. The Court will address Petitioner's objections seriatim.

         Petitioner first objects to the Magistrate Judge's purported omission of facts in her R & R, and he provides his own lengthy facts section. Although many of the facts Petitioner claims were omitted are ultimately included in the R & R, the Court need not address this objection in detail because the supposedly omitted facts have no bearing on the resolution of Petitioner's grounds for relief.

         Second, Petitioner objects to the Magistrate Judge's recommendation that the Court grant Respondent's motion for summary judgment on ground one of his habeas petition. In that ground, Petitioner alleges that the State's calling of his case for trial violated the South Carolina Constitution and the South Carolina Supreme Court's decision in State v. Langford, 735 S.E.2d 471 (2012). In his motion for summary judgment, Respondent argued that because ground one does not allege a violation of federal law, it is not cognizable in habeas review. The Magistrate Judge agreed, citing Estelle v. McGuire, 502 U.S. 62, 72 (1991). The Magistrate Judge further noted that any Sixth or Fourteenth Amendment arguments on this ground are defaulted because they were not raised in state court. The Court agrees. As stated by the Magistrate Judge, Petitioner's initial argument that the calling of his case violated the South Carolina Constitution and State v. Langford is entirely a state-law matter and is not cognizable on habeas review. Estelle, 502 U.S. at 72 (“[A] federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”). Moreover, Petitioner's attempt to shoehorn the above state-law argument into an ineffective assistance claim is also not cognizable because it was never presented that way in state court and cannot be presented there now. Stewart v. Warden of Lieber Correctional Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). Accordingly, Petitioner's objection is overruled.

         Third, Petitioner objects to the Magistrate Judge's recommendation that the Court grant Respondent summary judgment on ground two of his habeas petition. In that ground, Petitioner alleges that the solicitor committed prosecutorial misconduct by misrepresenting his relationship with State's witness Aaron Kinloch, and by not disclosing Kinloch's full criminal history. Specifically, Petitioner alleges that the solicitor committed a Brady violation by failing to disclose a letter that Kinloch wrote to the solicitor offering to testify against Petitioner.[1]

         The Magistrate Judge based her recommendation on Petitioner's failure to show that the state courts' decisions on this issue “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Specifically, the Magistrate Judge concluded that the state courts correctly applied the standard set forth in Brady v. Maryland, 373 U.S. 83 (1963), and that the state courts' rulings denying reversal based on Petitioner's Brady claim were not “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). The Court agrees.

         While the PCR court concluded that Petitioner had met all of the elements of Brady with regard to Kinloch's letter, that court also determined that reversal was still not warranted. As set forth in Kyles v. Whitley, reversal for a Brady violation is required “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” 514 U.S. 419, 433-34 (1995). “A ‘reasonable probability' is a probability sufficient to undermine confidence in the outcome.” U.S. v. Bagley, 473 U.S. 667, 682 (1985). When reviewing a habeas petition pursuant to § 2254, “a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The trial judge, the South Carolina Court of Appeals, and the PCR court all examined the facts surrounding Petitioner's Brady claim and concluded that reversal was not warranted because Kinloch's letter was merely additional impeaching evidence, and that there was no evidence that Kinloch and the solicitor actually made a deal in exchange for Kinloch's testimony. Although the Court recognizes that it is conceivable that the impeachment value of Kinloch's letter might have changed the outcome of Petitioner's trial even in the absence of a deal between Kinloch and the solicitor, Petitioner has failed to satisfy his burden of proving that there is a reasonable probability that the outcome would have been different. Specifically, Petitioner's objections provide a strong argument as to the Brady issue, but fail to show that there is a reasonable probability that the outcome would have been different. Here, the trial judge stated that, based on his determination of the facts, the solicitor's actions “do not rise to the level of bring[ing] the trustworthiness of the verdict into question.” (Return Mem. Pet. Writ Habeas Corpus, State Ct. Docs. Attach. Number 2, ECF No. 16-5, at 5.) The PCR court similarly stated that “[t]rial counsel extensively attacked Kinloch's credibility. The jury was aware of Kinloch's prior conviction and pending charges. Because trial counsel effectively called Kinloch's credibility into question with his prior crimes, the impeachment evidence of Kinloch's desire to assist the State did not deprive [Petitioner] of a fair trial.” (Return Mem. Pet. Writ Habeas Corpus, State Ct. Docs. Attach. Number 21, ECF No. 16-24, at 14-15 (citing State v. Cheeseboro, 552 S.E.2d 300, 314-15 (S.C. 2001).) Petitioner has not made a sufficient showing that those determinations were wrong or that there was a reasonable probability of a different outcome had the letter been introduced at trial as additional impeachment evidence. The PCR court's ruling also completely undermines Petitioner's argument about Kinloch's pending charges and prior convictions that were not disclosed on his NCIC report. The PCR court concluded that the jury was aware of all of those charges and convictions. The Court sees no reason to overturn that finding as it does not unreasonably apply clearly established federal law and it is not an unreasonable determination of the facts. Accordingly, the Court overrules Petitioner's objection.

         Fourth, Petitioner objects to the Magistrate Judge's recommendation that the Court grant Respondent's motion for summary judgment on ground three of his habeas petition. Petitioner claims that his trial counsel was ineffective for failing to object to the solicitor's use of a “golden rule argument” in his opening argument.[2] “The relevant question is whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Here, the Court concludes that Petitioner has failed to show that the solicitor's comments denied him due process. The trial judge's opening charge extensively laid out that opening and closing statements by attorneys are not evidence. While Petitioner's trial counsel did not object to the solicitor's golden rule argument during opening statements, trial counsel did object to a similar argument during closing statements. At that time, the trial judge agreed with Petitioner's trial counsel and struck that argument from the record. As a result, the Court concludes that the entirety of the trial was not affected by a brief golden rule argument when taken in context with the trial judge's charge and his later ruling during closing arguments. Moreover, ...


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