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Minor v. Warden of Tyger River Correctional Institution

United States District Court, D. South Carolina, Anderson/Greenwood Division

March 12, 2018

John B. Frazier, Petitioner,
v.
Warden of Tyger River Correctional Institution, Respondent.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

         This matter is before the court on United States Magistrate Judge Jacquelyn D. Austin's report and recommendation ("R&R"), ECF No. 33, that the court grant respondent Warden of Tyger River Correctional Institution's motion for summary judgment, ECF No. 21. For the reasons set forth below, the court adopts the R&R and grants respondent's motion for summary judgment.

         I. BACKGROUND

         This is a habeas corpus case brought pro se by petitioner John B. Frazier, who is a South Carolina state prisoner seeking relief under 28 U.S.C. § 2254. The R&R ably recites the salient facts and procedural history of petitioner's case. See R&R 2-7. This order notes some relevant background.

         A. State Court Proceedings

         Following two trials, petitioner was convicted and sentenced in South Carolina state court for murder, armed robbery, and criminal conspiracy. Petitioner appealed, alleging the trial court erred in: (1) admitting hearsay evidence of petitioner's co-defendant; (2) denying petitioner's motion for a directed verdict of not guilty of armed robbery when the State offered no substantial evidence of larceny; and (3) denying petitioner's motion for a directed verdict of not guilty of murder when the State failed to prove petitioner was at the scene of the crime. The South Carolina Court of Appeals affirmed the murder conviction but reversed the armed robbery conviction! Both parties appealed, the State raising whether the appellate court erred by reversing the armed robbery conviction, and petitioner raising whether the appellate court erred by affirming the trial court's denial of a directed verdict of not guilty on the murder conviction. On writ for certiorari, the South Carolina Supreme Court affirmed the appellate court with respect to the murder charge but reversed as to the armed robbery charge, sustaining petitioner's convictions.

         On or about September 26, 2011, petitioner filed an application for post-conviction relief ("PCR") pro se, which was later amended on March 13, 2014, to raise multiple grounds for PCR, alleging: prosecutorial misconduct for presenting a reply witness and false testimony from eye-witnesses and an investigating officer; ineffective assistance of counsel for failure to object thereto; ineffective assistance of counsel for failing to move to sequester the jury or request a change of venue, to challenge the introduction of a photo line-up and composite, to object to the State's closing argument, to challenge the sufficiency of evidence supporting the criminal conspiracy charge, to object to the testimony of two witnesses, to challenge forensic evidence; and to explore a third-party guilt defense. On November 6, 2014, the PCR court denied the PCR application, dismissing it with prejudice. Petitioner appealed on the ground that trial counsel was ineffective for failing to object and move for a mistrial after the State disparaged criminal defense attorneys and made multiple references to petitioner's sins in closing arguments. On October 20, 2016, the South Carolina Supreme Court denied certiorari.

         B. Federal Court Proceedings

         On or about November 23, 2016, [1] petitioner filed a petition for writ of habeas corpus in this court, raising four ineffective-assistance-of-counsel grounds for relief from his state court conviction, alleging his trial counsel was ineffective for: (1) not objecting to the state's disparaging remarks about criminal defense attorneys and references to petitioner's sins during closing arguments ("ground one"); (2) allowing "surrogate testimony" about the construction of the photo line-up evidence ("ground two"); (3) not requesting an alibi charge to be given ("ground three"); and (4) not raising third-party guilt as a defense ("ground four"). ECF No. 1 at 5-11.

         On April 10, 2017, respondent filed the instant motion for summary judgment. On May 15, 2017, petitioner filed a response in opposition, ECF No. 27. On May 22, 2017, respondent filed a reply, ECF No. 30, and on June 26, 2017, petitioner filed a surreply thereto, ECF No. 32. On September 21, 2017, the magistrate judge issued the R&R, recommending that the court grant respondent's motion for summary judgment and dismiss the petition. The magistrate judge specifically advised the parties of the procedure for filing objections thereto and the consequences if they failed to do so. ECF No. 33-1. On or about October 25, 2017, after receiving an extension, petitioner timely filed objections to the R&R, ECF No. 38. On November 9, 2017, respondent filed a reply thereto, ECF No. 40. The matter is now ripe for the court's review.

         II. STANDARDS OF REVIEW

         A. R&R

         The magistrate judge makes only a recommendation to the court. Mathews v. Weber. 423 U.S. 261, 270 (1976). The recommendation carries no presumptive weight, and the responsibility to make a final determination remains with the court, Id. at 270-71. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge ... or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1).

         The court is charged with making a de novo determination of any portion of the R&R to which a specific objection is made. Id. However, in the absence of a timely filed, specific objection, the court reviews the R&R only for clear error. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (citation omitted). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Furthermore, "[a] party's general objections are not sufficient to challenge a magistrate judge's findings." Greene v. Quest Diagnostics Clinical Labs., Inc., 455 F.Supp.2d 483, 488 (D.S.C. 2006) (citation omitted). When a party's objections are directed to strictly legal issues "and no factual issues are challenged, de novo review of the record may be dispensed with." Orpiano v. Johnson. 687 F.2d 44, 47 (4th Cir. 1982) (citation omitted). Similarly, de novo review is unnecessary when a party makes general and conclusory objections without directing a court's attention to a specific error in the magistrate ...


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