United States District Court, D. South Carolina, Florence Division
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE.
proceeding pro se, is seeking habeas corpus relief pursuant
to 28 U.S.C. § 2254. ECF No. 1. Petitioner filed a
Motion to Stay and Hold in Abeyance on July 16, 2018. ECF No.
9. Respondent filed a Response in Opposition, and Petitioner
filed a Reply. ECF Nos. 10, 17. Respondent filed a Motion for
Summary Judgment and Return and Memorandum on July 30, 2018.
ECF Nos. 11, 12. Petitioner filed a Response in Opposition to
the Motion for Summary Judgment, and Respondent filed a
Reply. ECF Nos. 18, 19.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2), (D.S.C.), this matter was referred to United
States Magistrate Judge Thomas E. Rogers, III, for pre-trial
proceedings and a Report and Recommendation
(“Report”). On October 3, 2018, the Magistrate
Judge issued a Report recommending that the Motion for
Summary Judgment be granted, the Petition be dismissed, and
the Motion to Stay and Hold in Abeyance be denied. ECF No.
20. Petitioner filed objections to the Report, and Respondent
filed a Reply. ECF Nos. 22, 24.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
636(b). The Court will review the Report only for clear error
in the absence of an objection. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (stating that “in the absence of timely
filed objection, a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.” (citation omitted)).
claims are governed by 28 U.S.C. § 2254(d), which
provides that his petition cannot be granted unless the
claims “(1) resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that 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). “[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, 411 (2000). Importantly, “a
determination of a factual issue made by a State court shall
be presumed to be correct, ” and Petitioner has
“the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. §
for Summary Judgment
raised two grounds in his Petition-that the solicitor
unlawfully impaneled the grand jury and that the search of
his car was unconstitutional. The Magistrate Judge determined
that summary judgment is appropriate with respect to both
claims because they are non-cognizable on federal habeas
review. Petitioner seems to assert that the Magistrate Judge
erred in relying on an invalid order by the Post-Conviction
Relief (“PCR”) Court. He further argues that all
of his claims were raised to the PCR Court but were not ruled
initial matter, Petitioner has provided no support for his
argument that the PCR Court's order is invalid and should
not be considered by this Court. To the extent he objects to
any finding that his claims have been procedurally defaulted,
Petitioner miscategorizes the Magistrate Judge's Report.
The Magistrate Judge determined that both claims were
non-cognizable upon federal habeas review. Upon a de novo
review of the record, applicable law, and the Report, the
Court agrees with the recommendation of the Magistrate Judge.
is not entitled to federal habeas relief as to Ground One
because federal habeas relief is only available when the
alleged error was based on a “violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a); see also Henry v. Warden of
McCormick Corr. Inst., C/A No. 1:14-cv-4343-BHH-SVH,
2015 WL 7769459, at *8 (D.S.C. Nov. 5, 2015), report and
recommendation adopted, 2015 WL 7776898 (D.S.C. Dec. 1,
2015) (holding that the manner and process by which a state
grand jury is impaneled and indictments procured is a matter
of state law (citing S.C. Code Ann. § 17-19-10 et
seq.)); Alexander v. Louisiana, 405 U.S. 625, 633
(1972) (“Although the Due Process Clause guarantees
petitioner a fair trial, it does not require the States to
observe the Fifth Amendment's provision for presentment
or Indictment by a grand jury.”).
extent Petitioner raises a free-standing Fourth Amendment
claim in Ground Two, this claim is also non-cognizable. In
Stone v. Powell, 428 U.S. 465 (1976), the Supreme
Court held that “where the State has provided an
opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal
habeas relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at this
trial.” 428 U.S. at 494. Petitioner has provided no
support for any argument that he did not have a full and fair
chance to litigate the issue presented in Ground Two. See
Muldrow v. Warden of Manning Corr. Inst., 2008 WL 533803
(D.S.C. 2008) (holding that although the petitioner opted to
plead guilty, he was nonetheless “given a full and fair
chance to litigate the present issue in state court and
federal habeas review is not available”).
Petitioner's objections to the Magistrate Judge's
recommendation with respect to the Motion for Summary
Judgment are overruled.
to Stay and ...