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Lynch v. Cartledge

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

March 28, 2018

DAVID ROY LYNCH, aka ROY DAVID MCDOWELL, Petitioner,
v.
LEROY CARTLEDGE, Respondent.

          ORDER

          R. Bryan Harwell United States District Judge

         Petitioner David Roy Lynch, a/k/a Roy David McDowell (“Petitioner”), an inmate with the South Carolina Department of Corrections, brought this habeas corpus petition pursuant to 28 U.S.C. § 2254. [ECF #1');">1]. In his petition, Petitioner raises four grounds for habeas relief. [ECF #1');">1]. Currently pending before this Court is Respondent's Motion for Summary Judgment [ECF #20] and the Report and Recommendation of Magistrate Judge Kevin McDonald. [ECF #29');">29');">29');">29]. The Magistrate Judge recommends that summary judgment be granted in favor of Respondent on all grounds. [ECF #29');">29');">29');">29]. Petitioner responded to Respondent's Motion on June 1');">15, 201');">17. [ECF #26]. Petitioner also timely filed objections to the Report and Recommendation on February 1');">13, 201');">18. [ECF #30');">30]. Respondent filed a reply to these objections on February 27, 201');">18. [ECF #32]. After a review of the pleadings, this Court issues the following Order.

         Background

         A detailed procedural history and factual background is adequately set forth in the Report and Recommendation (the “R&R”). [ECF #29');">29');">29');">29, pp. 1');">1-9]. Briefly stated, Petitioner was indicted in August 2005 on murder charges, as well as assault and battery with intent to kill. [ECF #1');">19-1');">1, App. 499-504]. In January 2007, he was also indicted on a charge of armed robbery. [ECF #1');">19-1');">1, App. 499-504]. The evidence presented at trial was that Petitioner was involved with a group of people who decided to plan a robbery in order to obtain money or drugs. [ECF #1');">19-1');">1, App. 21');">16-1');">17; 1');">165]. According to the testimony of another individual involved with the robbery, Petitioner and another individual who later pled guilty for this crime, Mr. Salters, each armed with a gun, approached an individual to rob him, and then returned to the vehicle. [ECF #1');">19-1');">1, p. 21');">16-225]. Petitioner was eventually arrested and after being advised of his Miranda rights, provided an interview to law enforcement. [ECF #1');">19-1');">1, App. 200-03; 268]. In that interview, he provided information to the deputies including a statement of the events and a diagram of the scene. [ECF #1');">19-1');">1, App. 200-04; 208; 268; 30');">306-08]. Petitioner was prosecuted on a theory of accomplice liability. [ECF #1');">19-1');">1, App. 329');">29');">29');">29]. Though he did not testify at trial, his defense was that “mere presence” is not enough to convict him. [ECF #1');">19-1');">1, App. 346]. On January 8, 2007, a jury found Petitioner guilty as indicted, and he was sentenced to life imprisonment for murder and a concurrent thirty year term of imprisonment for armed robbery and a twenty year term of imprisonment for assault and battery with intent to kill. [ECF #1');">1, p. 2].

         Petitioner timely filed a notice of appeal, but the Court of Appeals dismissed this appeal pursuant to Anders v. California, 386 U.S. 738 (1');">1967). [ECF #1');">19-2]. Petitioner did not seek further review, and the state court issued its remittitur on June 1');">10, 201');">11');">1. [ECF #1');">19-3]. The remittitur was filed with the Spartanburg County Clerk of Court on June 22, 201');">11');">1. [ECF #1');">19-3]. Thereafter, Petitioner filed a pro se application for post conviction relief (“PCR”), in which he asserted ineffective assistance of trial counsel and ineffective assistance of appellate counsel. [ECF #1');">19-1');">1, App. 392]. After an evidentiary hearing where he was represented by counsel, his PCR application was dismissed with prejudice. [ECF #1');">19-1');">1, p. 498]. Petitioner's PCR counsel timely filed a notice of appeal of this order, and his appellate counsel filed a petitioner under Johnson, [1');">1" name="FN1');">1" id= "FN1');">1">1');">1]presenting one issue for review. [ECF #1');">19-6; 1');">19-7]. The issue for review was whether the record supported the PCR court's conclusion that trial counsel was not deficient in failing to object to the solicitor's comment in closing argument that his co-defendant had pled guilty under the “the-hand-of-one-is-the-hand-of-all theory. [ECF #29');">29');">29');">29, p. 7]. Petitioner filed a pro se response to the petition, reiterating his earlier claims of ineffective assistance of counsel and arguing other substantive issues existed upon which to grant relief. [ECF #1');">19-8]. Petitioner also filed a pro se Memorandum for Writ of Certiorari to the South Carolina Supreme Court. On November 9, 201');">16, the state supreme court denied certiorari to review the pro se response. [ECF #1');">19-9]. The state court issued its remittitur on November 29');">29');">29');">29, 201');">16, which was filed with the Spartanburg County Clerk of Court on December 2, 201');">16. [ECF #1');">19-1');">10].

         Petitioner filed his pro se petition for habeas relief pursuant to § 2254 in this Court on December 1');">15, 201');">16. [ECF #1');">1]. On April 21');">1, 201');">17, Respondent filed its Motion for Summary Judgment. [ECF #20]. On June 1');">15, 201');">17, Petitioner, now represented by counsel, filed a response opposing this motion. [ECF #26]. Respondent filed its reply on June 22, 201');">17. [ECF #28]. On January 30');">30, 201');">18, Magistrate Judge Kevin McDonald issued his Report and Recommendation (the “R&R”), recommending summary judgment be granted as to all grounds raised in the petition for habeas relief. [ECF #29');">29');">29');">29]. Petitioner filed his objections to the R&R on February 1');">13, 201');">18. [ECF #30');">30]. In his objections, Petitioner raises one objection as to the dismissal of ground two. [ECF #30');">30, p. 1');">1]. All other grounds initially raised have been abandoned by Petitioner. Respondent filed its reply on February 27, 201');">18. [ECF #32]. This matter is now before the Court for disposition.

         Legal Standards of Review

         I. Review of the Magistrate Judge's Report & Recommendation

         The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 261');">1');">423 U.S. 261');">1, 270-71');">1 (1');">1976). The Court is charged with making a de novo determination of those portions of the report and recommendation to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1');">1). The right to de novo review may be waived by the failure to file timely objections. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1');">1982). The district court is obligated to conduct 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's proposed findings and recommendations.” Id.

         II. Summary Judgment Review

         “The 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) (201');">10). “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');">1). When no genuine issue of any material fact exists, summary judgment is appropriate. See Shealy v. Winston, 929');">29');">29');">29 F.2d 1');">1009, 1');">101');">11');">1 (4th Cir. 1');">1991');">1). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1');">1986). In the motion seeking summary judgment, Respondent argues that ground two, alleging that trial counsel was ineffective in failing to object to the solicitor's closing argument, should be dismissed because Petitioner does not provide a legal basis to show trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 689 (1');">1984). This is the only ground Petitioner objects should not be dismissed.

         III. 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 1');">1996 (“AEDPA”). Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). Lindh v. Murphy, 1');">1 U.S. 320');">521');">1 U.S. 320 (1');">1997); Breard v. Pruett, 1');">134 F.3d 61');">15');">1');">134 F.3d 61');">15, 61');">18 (4th Cir. 1');">1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:

(1');">1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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