United States District Court, D. South Carolina, Greenville Division
Kenneth D. Smith, Petitioner,
Warden Scott Lewis, Respondent.
ORDER AND OPINION
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).
FACTUAL AND PROCEDURAL BACKGROUND
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 (ECF No. 34). On
February 7, 2018, the Respondent replied. (ECF No. 40.)
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
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).
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)).
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 ...