United States District Court, D. South Carolina, Aiken Division
Bryan Harwell, United States District Judge.
matter is before the Court for review of the Report and
Recommendation (“R&R”) of United States
Magistrate Judge Shiva V. Hodges. [ECF No. 29]. The Magistrate
Judge recommends the Court grant Respondent Warden, Lee Corr.
Inst.'s motion for summary judgment [ECF No. 17] and
dismiss Petitioner Curtis Nealy's petition under 28
U.S.C. § 2254 (“§ 2254 petition”) [ECF
No. 1] with prejudice. R&R at 29.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo
review of those portions of the R&R to which specific
objections are made, and the Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge or recommit the matter with instructions. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). However, the
Court need not conduct a de novo review of
“general and conclusory objections that do not direct
the [C]ourt to a specific error in the [M]agistrate
[Judge]'s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Also, objections that merely rehash arguments previously
raised and considered by the Magistrate Judge are
insufficient to direct the Court to a specific error.
Weber v. Aiken-Partain, C/A No. 8:11-cv-02423-GRA,
2012 WL 489148, at *2 (D.S.C. Feb. 15, 2012). In the absence
of specific objections to the R&R, the Court reviews only
for clear error, Diamond v. Colonial Life & Accident
Insurance Co., 416 F.3d 310, 315 (4th Cir. 2005), and
the Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983). “A
finding is ‘clearly erroneous' when although there
is evidence to support it, the reviewing court is left with
the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948).
a state inmate at the Lee Correctional Institution of the
South Carolina Department of Corrections, brings this action
pro se under 28 U.S.C. § 2254 for a writ of
habeas corpus by a person in state custody against
Respondent. See Pet. at 1, ECF No. 1. In support of
his § 2254 petition, he raises several grounds: (1) his
counsel “failed to consult, procure and present expert
witness to testify regarding effects of alcohol and tricyclic
on State's key witness”; (2) his counsel
“failed to use available impeachment evidence in order
to challenge prosecution's key witnesses”; (3) his
counsel “failed to object to unconstitutional jury
charge that allowed inference of malice”; and (4) his
counsel “failed to reply to the Respondent's Brief,
where there were several incorrect or mistatements of facts,
after being requested to do such, well before the allotted
time expired.” Pet. at 6, 8.
15, 2018, Respondent filed the instant motion for summary
judgment. [ECF No. 7]. On or about August 24, 2018,
Petitioner filed a response in opposition [ECF No. 26], and
on August 31, 2018, Respondent filed a reply thereto. [ECF
No. 27]. On or about September 17, 2018, Petitioner filed a
sur reply. [ECF No. 28]. On September 19, 2018, the
Magistrate Judge issued the R&R, recommending the Court
grant Respondent's motion for summary judgment and
dismiss the case because all of Petitioner's grounds for
relief are procedurally barred or fail on the merits.
See R&R at 17-29. The Magistrate Judge
specifically advised the parties of the procedure for filing
objections to the R&R and the consequences if they failed
to do so. R&R at 29-30.
about November 8, 2018, after receiving an extension of time,
Petitioner timely filed objections to the R&R. [ECF No.
35]. However, the objections do not contain a specific
objection to the Magistrate Judge's conclusion that
Petitioner's grounds are procedurally barred or fail on
the merits, so the Court reviews the R&R for clear error.
See Diamond & Camby, supra
(stating that absent a specific objection, the Court need
only review the R&R for clear error and need not give
reasons for adopting it). Petitioner objects “to the
entire entry of Merits issued by the Magistrate Judge as
there are many misstatements of facts.” Objs. at 8. In
particular, Petitioner objects to: (1) the Magistrate
Judge's “re-characterizing his Constitutional
claims by rephrasing the claims and then addressing [only]
part of the claim and/or an entirely different claim th[a]n
what was raised by the Petitioner”; (2) the Magistrate
Judge's “‘careful consider[ation]' [of]
both ‘parties submissions and the record in this
case'” because the R&R “is solely based
on the Respondent's [briefs]” and it is
“highly impossible for the Magistrate Judge to review
the [parties' briefs] and prepare a [29-page]
R&R”; (3) the R&R's “misstatement of
the procedural history”; (4) the R&R's
“discussion in regards to the Federal Habeas
issues”; (5) the R&R's “Cause and Actual
Prejudice section”; (6) the Magistrate Judge's
“theory that . . . Petitioner has not shown sufficient
cause and prejudice to excuse the default of his Ground One,
Claim Two claim.” Objs. at 2-8.
outset, the Court notes that Petitioner correctly points out
that the R&R misstates that Petitioner raises five
grounds in his § 2254 petition. See R&R at
7 (“Petitioner states the following five grounds in his
habeas petition[.]”). In fact, Petitioner raises two
grounds constituting four claims: Ground One (with three
claims) and Ground Two (with one claim). Pet. at 6, 8.
Despite miscounting the grounds, the R&R correctly notes
all the grounds raised and properly analyzes them, so the
misstatement of the number of grounds does not alter the
Magistrate Judge's or this Court's conclusions.
See R&R at 7-8 (enumerating Petitioner's
Petitioner's objections are general or merely rehash
arguments already made to and considered by the Magistrate
Judge. Having reviewed the objections, the Court discerns no
clear error in the R&R. Therefore, the Court adopts the
R&R, grants Respondent's motion for summary judgment,
and dismisses the § 2254 petition.
certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When the district
court denies relief on the merits, a prisoner satisfies this
standard by demonstrating reasonable jurists would find the
court's assessment of the constitutional claims debatable
or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003). When the district court denies relief on
procedural grounds, the prisoner must demonstrate both the
dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484-85. In
this case, the Court concludes that Petitioner has not made
the requisite showing of “the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
foregoing reasons, the Court adopts and incorporates by
reference the R&R [ECF No. 29] of the Magistrate Judge.
Accordingly, the Court GRANTS
Respondent's motion for summary judgment [ECF No. 17] and
DISMISSES Petitioner's § 2254
petition [ECF No. 1] ...