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Vandross v. Stirling

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

July 20, 2018

Charles Nemon Vandross, Petitioner,
v.
Bryan Stirling, Commissioner, South Carolina Department of Corrections, and Broad River Correctional Institution, Respondent.

          ORDER AND OPINION

          RICHARD MARK GERGE UNITED STATES DISTRICT COURT JUDGE

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge recommending that Respondent's motion for summary judgment be granted. For the reasons set forth below, the Court adopts the R & R as the order of the Court and grants Respondent's motion for summary judgment.

         I. Background

         Petitioner Charles Nemon Vandross, an inmate at the Perry Correctional Institute of the South Carolina Department of Corrections, petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In December 2004, Petitioner was indicted by a South Carolina grand jury for first degree burglary, murder, kidnapping and possession of a firearm during the commission of a violent crime. Petitioner was alleged to have, on November 1, 2004, broken into the home of his ex-girlfriend, Ms. Wilson, kidnapped her and killed her friend, Mr. Best. Petitioner's first and second trials resulted in a hung jury. At the third jury trial, he was found guilty and sentenced to life in prison for the murder and burglary convictions, thirty concurrent years for the kidnapping conviction, and five consecutive years for the unlawful firearm possession conviction.

         Petitioner appealed his convictions and sentence to the South Carolina Court of Appeals, and the appeal was dismissed. Petitioner applied for post-conviction relief and was denied. Petitioner filed a Rule 15(b) and (c) motion and a motion for remand or for leave to file a successive post-conviction relief application, which was denied by the South Carolina Supreme Court.

         Petitioner then filed the federal petition for a writ of habeas corpus asserting three grounds: (1) Petitioner received ineffective assistance of trial counsel when the counsel did not obtain expert witness funding for his indigent client (Dkt. No. 1 at 24-30); (2) Petitioner received ineffective assistance of trial counsel when the counsel did not object to a certain jury strike (Id. at 30-33); and (3) the trial judge's evidentiary ruling precluding testimony on Ms. Wilson's relationship with Mr. Best constituted reversible error (Id. at 33-35).

         II. Legal Standard

         A. Review of R&R

         The Magistrate Judge makes a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See, e.g., Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

         Where the petitioner objects to the R&R, the Court "makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. Where the petitioner has not objected, the Court reviews the R & R to "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72 advisory committee's note. In the absence of objections, the Court need not give any explanation for adopting the Magistrate Judge's analysis and recommendation. See, e.g., Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) ("In the absence of objection ... we do not believe that it requires any explanation.").

         B. Certificate of Appealability

         28 U.S.C. § 2253 provides:

(c)(2) A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing ...

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