United States District Court, D. South Carolina
L. Wooten, Senior United States District Judge.
Nathaniel Murray, proceeding pro se, filed this petition
pursuant to 28 U.S.C. § 2254. ECF No. 1, 10. On July 13,
2018, Respondent filed a motion for summary judgment, ECF No.
17, which Petitioner opposed, ECF No. 33. This matter now
comes before the Court for review of the Report and
Recommendation (the Report) filed on November 29, 2018, by
United States Magistrate Judge Paige J. Gossett, to whom this
case was previously assigned pursuant to 28 U.S.C. §
636(b) and Local Civ. Rule 73.02(B)(2)(c), (D.S.C.). ECF No.
37. In the Report, the Magistrate Judge recommends granting
the Respondent's motion for summary judgment and
dismissing the petition. Id. Petitioner filed
objections to the Report on December 14, 2018, ECF No. 40, to
which Respondent responded, ECF No. 41. This matter is now
ripe for disposition.
Court is charged with conducting a de novo review of any
portion of the Magistrate Judge's Report and
Recommendation to which a specific objection is registered,
and may accept, reject, or modify, in whole or in part, the
recommendations contained in that report. 28 U.S.C. §
636. In conducting its review, the Court applies the
The magistrate judge makes only a recommendation to the
Court, to which any party may file written objections . . . .
The Court is not bound by the recommendation of the
magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo
determination of those portions of the report or specified
findings or recommendation as to which an objection is made.
However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of
the magistrate judge as to those portions of the report and
recommendation to which no objections are addressed. While
the level of scrutiny entailed by the Court's review of
the Report thus depends on whether or not objections have
been filed, in either case the Court is free, after review,
to accept, reject, or modify any of the magistrate
judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia,
791 F.Supp. 137, 138 (D.S.C. 1992) (citations omitted).
light of the standard set forth in Wa lace, the Court has
reviewed, de novo, the Report, the applicable law, the
record, and the objections. Although Petitioner states
generally that he would be prejudiced by dismissal of the
petition, he does not state sufficient grounds for this Court
to reject the conclusion by the Magistrate Judge that grounds
one, two, four, and five are procedurally defaulted/barred.
See Rhines v. Weber, 544 U.S. 269, 270 (2005);
Coleman v. Thompson, 501 U.S. 722, 750 (1991);
Lawrence v. Branker, 517 F.3d 700, 715 (4th Cir.
2008); Matthews v. Evatt, 105 F.3d 907, 910-11 (4th
Cir. 1997). In addition, Petitioner does not object to the
Magistrate Judge's recommendation regarding ground three,
and therefore the Court accepts the recommendation to dismiss
ground three. Lastly, Petitioner states in his objections
that his trial counsel was ineffective for failing “to
request a jury charge regarding circumstantial evidence which
informs the jury that the circumstantial of guilt must poit
[sic] conclusively to the guilt of the accused on the
exclusion of every other reasonable hypothesis.” ECF
No. 40 at 9. This is a new ground for relief that was not
presented in Petitioner's petition, amended petition,
response to summary judgment, or state court filings. ECF
Nos. 1, 10, 16, 33. Therefore, the claim is not peroperly
before this Court at this time. However, even if it were,
this ground is procedurally barred because Petitioner's
argument has not been presented to the state courts and he
has not shown cause and prejudice. Coleman, 501 U.S. at 750;
Lawrence, 517 F.3d at 715; Matthews, 105 F.3d at 910-11.
careful consideration, IT IS ORDERED that the Report, ECF No.
37, is ACCEPTED, and the Petitioner's Objections, ECF No.
40, are OVERRULED. Respondent's motion for summary
judgment, ECF No. 17, is GRANTED and the Amended Petition,
ECF No. 10, is hereby DISMISSED.
Court has reviewed this Petition in accordance with Rule 11
of the Rules Governing Section 2254 Proceedings. The Court
concludes that it is not appropriate to issue a certificate
of appealability as to the issues raised herein. Petitioner
is advised that he may seek a certificate from the Fourth
Circuit Court of Appeals under Rule 22 of the Federal Rules
of Appellate Procedure.
The Court notes that Petitioner has not
made a motion to amend his petition to add this additional
ground. However, even if the Petitioner sought to include
this ground in a second amended petition, the claim is