United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge.
matter is before the Court for consideration of
Plaintiff's objections to the Report and Recommendation
(“R & R”) of United States Magistrate Judge
Paige J. Gossett, who recommends summarily dismissing
Plaintiff's pro se complaint with
prejudice. See ECF Nos. 8 & 10.
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 it 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).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “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). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. 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 state prisoner proceeding pro se, filed a complaint
pursuant to 42 U.S.C. § 1983 against the Attorney
General of South Carolina alleging South Carolina Appellate
Court Rule 243 is unconstitutional. See ECF No. 1.
Specifically, Plaintiff contends the intermediate
state appellate court-the South Carolina Court of Appeals-was
not “obligated “ to hear his post-conviction
relief (“PCR”) appeal but should have been.
Id. at pp. 5-7. The Magistrate Judge recommends
summarily dismissing Plaintiff's complaint with
prejudice. See R & R at pp. 1, 4. Plaintiff has
filed objections to the R & R. See ECF No. 10.
courts may upset a State's postconviction relief
procedures only if they are fundamentally inadequate to
vindicate the substantive rights provided.” Dist.
Att'y's Office for Third Jud. Dist. v. Osborne,
557 U.S. 52, 69 (2009); see also LaMar v. Ebert, No.
18-6417, 2018 WL 6266759, at *4 (4th Cir. 2018) (articulating
the Osborne standard in a § 1983
action). The South Carolina Uniform Post-Conviction
Relief Act provides that a final judgment in a PCR action
“may be reviewed by a writ of certiorari as provided by
the South Carolina Appellate Court Rules.” S.C. Code
Ann. § 17-27-100. South Carolina Appellate Court Rule
243-the rule challenged by Plaintiff-provides that “[a]
final decision entered under the Post-Conviction Relief Act
shall be reviewed by the Supreme Court upon petition
of either party for a writ of certiorari, according to the
procedure set forth in this Rule.” Rule 243(a), SCACR
(emphasis added). However, Rule 243 provides that
“[t]he Supreme Court may transfer a case filed
under this rule to the Court of Appeals, ” and if the
case is in fact transferred to and decided by the S.C. Court
of Appeals, the Supreme Court can review that decision. Rule
243(1), SCACR (emphasis added); see, e.g.,
Buckson v. State, 815 S.E.2d 436, 438 (S.C. 2018).
However, Rule 243 makes clear that PCR appeals go directly to
the S.C. Supreme Court, not the S.C. Court of Appeals (which
will decide a PCR appeal only if it is transferred there).
Magistrate Judge correctly observes, Plaintiff has not
provided any authority supporting his contention that an
intermediate state appellate court (like the S.C. Court of
Appeals) must hear a PCR appeal before a superior state
appellate court does. Moreover, he has not shown Rule 243 is
“fundamentally inadequate to vindicate the substantive
rights provided.” Osborne, 557 U.S. at 69.
Plaintiff has failed to state a plausible claim for relief,
and therefore the Court will dismiss this case with
foregoing reasons, the Court ADOPTS the R
& R [ECF No. 8] and DISMISSES this
action with prejudice and without issuance and service of
IS SO ORDERED.