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Smith v. Lewis

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

March 28, 2018

Kenneth D. Smith, Petitioner,
v.
Warden Scott Lewis, Respondent.

          ORDER AND OPINION

         This matter is before the court upon review of the Magistrate Judge's Report and Recommendation (“Report”) (ECF No. 26), recommending that Respondent Warden Scott Lewis' Motion for Summary Judgment (ECF No. 16) be GRANTED and Petitioner Kenneth D. Smith's habeas petition be DENIED. For the reasons set forth below, the court GRANTS Respondent's Motion for Summary Judgment (ECF No. 16) and ACCEPTS the Magistrate Judge's Report (ECF No. 34).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The court concludes upon its own careful review of the record that the factual and procedural summation in the Report (ECF No. 26) is accurate, and the court adopts this summary as its own. Subsequently, the court will only recite herein facts pertinent to the court's review of the Report (id.). On December 11, 2017, Magistrate Judge Kevin F. McDonald filed the Report (id.) and on January 19, 2018, Plaintiff filed an Objection[1] (ECF No. 34). On February 7, 2018, the Respondent replied. (ECF No. 40.)

         II. JURISDICTION

         The court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g) which gives the court jurisdiction over a review of a final decision of the Commissioner of Social Security.

         III. LEGAL STANDARD

         The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(a) for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court, which has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objections are made. Fed.R.Civ.P. 72(b)(2)-(3). “In the absence of a timely filed, specific objection, the magistrate judge's conclusions are reviewed only for clear error.” James v. Cohen, No. CV 1:17-01256-TMC, 2017 WL 4371548, at *1 (D.S.C. Oct. 3, 2017) (citing Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)). Additionally, “[i]n the absence of objection, for which provision is made by the statute [28 U.S.C. § 636(b)(1)(C)], we do not believe [the court's acceptance of the Magistrate Judge's Report and Recommendation] requires any explanation.” Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

         Failure to file specific written objections to the Report results in a party's waiver of the right to appeal from the judgment of the District Court based upon such recommendation. 28 U.S.C. § 636(b)(1); see Wells v. Shriners Hosp., 109 F.3d 198, 200 (4th Cir. 1997) (“[t]he Supreme Court has authorized the waiver rule that we enforce. . . . ‘[A] court of appeals may adopt a rule conditioning appeal, when taken from a district court judgment that adopts a magistrate's recommendation, upon the filing of objections with the district court identifying those issues on which further review is desired.'”) (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)).

         IV. ANALYSIS

         Petitioner's Objection (ECF No. 34) to the Magistrate Judge's Report spends the majority of the time either disagreeing with the Magistrate Judge's conclusions or reiterating the same grounds that were made in his initial brief, namely:

(1) Petitioner's due process rights violated by the trial court and [the South Carolina] Court of Appeals [by] not directing a verdict or failing to consider directing a verdict on its own motion since there was no evidence or substantial evidence Petitioner shot and killed the decedent;
(2) Did the PCR judge's decision go contrary to the [United States] Supreme Court precedent and [apply] a legal context which was objectively unreasonable?;
(3)Was the [South Carolina] Supreme Court's decision an unreasonable application of the facts in light of the evidence presented by not stating its findings of fact and conclusions of law?;
(4) and (5) “Was it [a] 6th and 14th Amendment violation [for] trial counsel's failure to object to the jury charge of ...

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