United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge.
Andrew Davion Burnside, a state prisoner proceeding pro se,
has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. See ECF No. 1. The matter is
before the Court for consideration of Petitioner's
objections to the Report and Recommendation (“R &
R”) of United States Magistrate Judge Thomas E. Rogers,
See ECF Nos. 23 & 25. The Magistrate Judge
recommends granting Respondent's motion for summary
judgment and dismissing Petitioner's § 2254 petition
without an evidentiary hearing. R & R at p. 24.
State of South Carolina indicted and tried Petitioner for
trafficking cocaine base, possession of a weapon during the
commission of a violent crime, possession of a controlled
substance with intent to distribute, distribution of cocaine
base, and possession of cocaine with intent to distribute.
See ECF No. 15-1 at pp. 296-303. The jury convicted
him of all charges, and the trial court imposed concurrent
sentences resulting in twenty-five years of actual
imprisonment. See ECF No. 15-1 at pp. 234-35,
288. Petitioner filed a direct appeal, and the South Carolina
Court of Appeals summarily affirmed in an unpublished
opinion. See ECF Nos. 15-2, 15-3, 15-4, & 15-5.
Petitioner filed an application for post-conviction relief
(“PCR”) in state court. See ECF No. 15-1
at pp. 237-46. After holding a hearing at which Petitioner
and his trial counsel testified, the PCR court issued a
written order denying and dismissing the PCR application with
prejudice. Id. at pp. 253-95. Petitioner filed a
Johnson petition for a writ of certiorari from the
denial of his PCR application, and the South Carolina Supreme
Court summarily denied the Johnson petition and
remitted the case. See ECF Nos. 15-11, 15-12, 15-13,
then filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. See ECF No. 1.
Respondent answered by filing a return and a motion for
summary judgment. See ECF Nos. 14 & 15. The
Magistrate Judge issued an R & R recommending that the
Court grant Respondent's motion for summary judgment and
dismiss Petitioner's § 2254 petition without an
evidentiary hearing. R & R at p. 24. Petitioner filed
timely objections to the R & R, and Respondent filed a
reply to Petitioner's objections. See ECF Nos.
25 & 27.
Review of the Magistrate Judge's R & R
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see generally Rule 12 of the
Rules Governing Section 2254 Cases (“The Federal Rules
of Civil Procedure . . ., to the extent that they are not
inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.”);
Brandt v. Gooding, 636 F.3d 124, 132 (4th Cir. 2011)
(“Federal Rule of Civil Procedure 56 ‘applies to
habeas proceedings.'” (quoting Maynard v.
Dixon, 943 F.2d 407, 412 (4th Cir. 1991))). “A
party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to
particular parts of materials in the record . . .; or (B)
showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). “The evidence must
be viewed in the light most favorable to the non-moving
party, with all reasonable inferences drawn in that
party's favor. The court therefore cannot weigh the
evidence or make credibility determinations.”
Reyazuddin v. Montgomery Cty., 789 F.3d 407, 413
(4th Cir. 2015) (internal citation and quotation marks
Federal Habeas Review Under 28 U.S.C. § 2254
Petitioner filed his petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254 governs review
of his claims. Lindh v. Murphy, 521 U.S. 320 (1997);
Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998).
Under the AEDPA, federal courts may not grant habeas corpus
relief unless the underlying state adjudication:
(1) 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;
(2) 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). This is a “difficult to meet
and highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given
the benefit of the doubt.” Cullenv.
Pinholster, 563 U.S. 170, 181 (2011) (internal quotation
marks and citations omitted). “Section 2254(d)(1)
describes the standard of review to be applied to claims
challenging how the state courts applied federal law, while
§ 2254(d)(2) describes the standard to be applied to
claims challenging how the state courts determined the
facts.” Winston v. Kelly, 592 F.3d 535, 553
(4th Cir. 2010). “‘[A] determination on a factual
issue made by a State court shall be presumed correct, '
and the burden is on the petitioner to rebut this presumption
‘by clear and convincing evidence.'”
Tucker v. Ozmint, 350 F.3d 433, 439 (4th Cir. 2003)
(quoting 28 U.S.C. § 2254(e)(1)). Because the South