United States District Court, D. South Carolina, Rock Hill Division
David I. Smith, Petitioner,
Warden, Lee Correctional Institution, Respondent.
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 35) recommending
that the Court grant Respondent's motion for summary
judgment on Petitioner's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 22) and
deny Respondent's motion to strike (Dkt. No. 28). For the
reasons set forth below, the Court adopts in part and
declines to adopt in part the R & R as the Order of the
Court, grants Respondent's motion for summary judgment
and grants Respondent's motion to strike.
2012, Petitioner was indicted in Charleston County for
attempted murder. Petitioner was represented by a Deputy
Public Defender. On July 10, 2014, Petitioner plead guilty to
assault and battery of a high and aggravated nature and was
sentenced to twenty years' incarceration with credit for
time served. Eight days later, plea counsel filed a motion to
reconsider the sentence. After a hearing on the motion, the
court reaffirmed the sentence. In March 2015, Petitioner
filed pro se an application for post-conviction
relief ("PCR") alleging his plea counsel misadvised
him to accept the guilty plea and was ineffective. In August
2016, the PCR court held an evidentiary hearing at which
Petitioner was represented by counsel and where he and his
plea counsel testified. The PCR court denied and dismissed
with prejudice the PCR application. Petitioner appealed and
petitioned for a writ of certiorari under Johnson v.
State, 364 S.E.2d 201 (S.C. 1988), represented by an
Appellate Public Defender. Petitioner also filed pro
se a response to the petition. The South Carolina
Supreme Court denied the petition and the remittitur was
issued and filed in Charleston County Court in May 2018.
now petitions pro se for a writ of federal habeas
corpus, raising four grounds for why his state custody is in
violation of the United States constitution or federal laws.
Respondent moves to dismiss the petition on summary judgment,
to which Petitioner responded, Respondents replied, and
Petitioner submitted a sur-reply.
Review of R & R
Magistrate Judge makes a recommendation to the Court that has
no presumptive weight and the responsibility to make a final
determination remains with the Court. See, e.g., Matthews
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 there are
specific objections 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. In the absence of
objections, 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; see also
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.").
Motion for Summary Judgment
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law. Fed. R.
In other words, summary judgment should be granted "only
when it is clear that there is no dispute concerning either
the facts of the controversy or the inferences to be drawn
from those facts." Pulliam Inv. Co. v. Cameo
Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In
determining whether a genuine issue has been raised, the
court must construe all inferences and ambiguities in favor
of the nonmoving party." HealthSouth Rehab. Hosp. v.
Am. Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir.
1996). The movant has the initial burden of demonstrating
that there is no genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant has made this threshold demonstration, to survive
summary judgment the respondent must demonstrate that
specific, material facts exist that give rise to a genuine
issue. Id. at 324. Under this standard,
"[c]onclusory or speculative allegations do not suffice,
nor does a 'mere scintilla of evidence"' in
support of the non-moving party's case. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSX Tramp., Inc., 190
F.3d 285, 287 (4th Cir. 1999)).
Federal Habeas Relief Pursuant to 28 U.S.C. §
prisoner who challenges matters "adjudicated on the
merits in State court" can obtain relief in federal
court if he shows that the state court's decision
"was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court" or "was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28
U.S.C. § 2254(d). When reviewing a state court's
application of federal law, "a federal habeas court may
not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable." Williams v. Taylor, 529 U.S.
362, 410 (2000). The state court's application is
unreasonable if it is "objectively unreasonable, not
merely wrong." White v. Woodall, 572 U.S. 415,
419 (2014). Meaning, the state court's ruling must be
"so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement." Harrington
v. Richter, 562 U.S. 86, 103 (2011).
state court's determination is presumed correct and the
petitioner bears the burden of rebutting this presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The state court's decision "must be granted a
deference and latitude that are not in operation" when
the case is considered on direct review. Harrington,
562 U.S. at 101. This is because habeas corpus in federal
court exists only to "guard against extreme malfunctions
in the state criminal justice systems." Id. at
102 (citation and internal quotation marks omitted).
Accordingly, pursuant to 28 U.S.C. § 2254(d), a federal
habeas court must (1) determine what arguments or theories
supported or could have supported the state court's
decision; and then (2) ask whether it is possible that
fairminded jurists could disagree that those arguments or
theories are ...