United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
RICHARD MARK GERGE UNITED STATES DISTRICT COURT JUDGE
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.
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.
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
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).
Review of R&R
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).
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.").
Certificate of Appealability
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 ...