United States District Court, D. South Carolina, Rock Hill Division
F. Anderson, Jr. United States District Judge.
Randolph Ashford (“Petitioner”), a state prisoner
proceeding pro se, filed a petition seeking habeas corpus
relief pursuant to 28 U.S.C. § 2254
(“Petition”). (ECF No. 1). Petitioner is
currently confined at Broad River Correctional Institution.
(ECF No. 21 at 2). After reviewing the pleadings, the
Magistrate Judge assigned to this action prepared a
thorough Report and Recommendation (“Report”) and
recommends that Respondent Michael Stephan's
(“Respondent”) Motion for Summary Judgment (ECF
Nos. 21, 22) be granted and that the Petition be denied. (ECF
No. 45). The Report sets forth, in detail, the relevant facts
and standards of law on this matter, and this Court
incorporates those facts and standards without a recitation.
(ECF No. 45).
was advised of his right to file objections to the Report,
which was filed by the Magistrate Judge on January 4, 2019.
(ECF No. 45). The Magistrate Judge required Petitioner to
file objections to the Report by January 18, 2019. (ECF No.
45 at 28). On January 28, 2019, this Court granted
Petitioner's Motion for Extension of Time to File
Objections to the Report by extending the filing deadline to
February 22, 2019. (ECF No 55). Petitioner's Objections
were filed on February 27, 2019 and the Court accepted his
filing pursuant to the prisoner mailbox rule.
district court is required to conduct a de novo review only
of the specific portions of the Magistrate Judge's Report
to which objections are made. See 28 U.S.C. §
636(b); Fed.R.Civ.P. 72(b); see also Carniewski v. W.Va.
Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir.
1992). In the absence of specific objections to portions of
the Report, the Court is not required to give an explanation
for adopting the Report. See Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983). Thus, the Court must only
review those portions of the Report to which Petitioner has
made specific written objections. Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir.
objection is specific if it ‘enables the district judge
to focus attention on those issues- factual and legal-that
are at the heart of the parties' dispute.'”
Dunlap v. TM Trucking of the Carolinas, LLC, No.
0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec.
12, 2017) (citing One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A
specific objection to the Magistrate Judge's Report thus
requires more than a reassertion of arguments from the
Complaint or a mere citation to legal authorities. See
Workman v. Perry, No. 6:17-cv-00765-RBH, 2017 WL
4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection
must “direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
stated, nonspecific objections have the same effect as would
a failure to object.” Staley v. Norton, No.
9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007)
(citing Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The Court
reviews portions “not objected to-including those
portions to which only ‘general and conclusory'
objections have been made-for clear error.”
Id. (emphasis added) (citing Diamond, 416
F.3d at 315; Camby, 718 F.2d at 200;
Orpiano, 687 F.2d at 47).
an objection is “nonspecific, unrelated to the
dispositive portions of the Magistrate Judge's Report and
Recommendation, or merely restate[s] . . . claims, ”
the Court need not conduct any further review of that
objection. Field v. McMaster, 663 F.Supp.2d 449, 452
(D.S.C. 2009); see also McNeil v. S.C. Dept. of
Corrections, No. 5:12-2880-MGL, 2013 WL 1102881, at *1
(D.S.C. Mar. 15, 2013) (finding petitioner's objections
to be without merit where the objections were
“non-specific, unrelated to the dispositive portions of
the Magistrate Judge's Report, and consist[ed] of a
reassertion of the arguments” made in the petition);
Arbogast v. Spartanburg Cty., No.
07:11-cv-00198-GRA, 2011 WL 5827635, at *2 (D.S.C. Nov. 17,
2011) (finding that plaintiff's objections were not
specific where the objections were “general and
conclusory in that they merely reassert[ed] that his
conviction was wrongful.”).
Procedural Bar as to Grounds Five and Six, and Parts of
Ground Five, Petitioner argues trial counsel were ineffective
for failing to quash the indictments against him. (ECF No. 1
at 14). Respondent argues Ground Five of the Petition is
procedurally barred. (ECF No. 21 at 44). The Magistrate Judge
recommends granting Respondent's Motion as to Ground
Five. (ECF No. 45 at 10-13). The Court agrees.
PCR hearing, PCR counsel asked the PCR court to consider a
brief drafted pro se by Petitioner that explained why the
indictments in his trial should have been quashed based on
the indictments having been issued when there was no term of
the Court of General Sessions. (ECF No. 21-3 at 176-77,
189-90). However, no testimony was presented to the PCR
court, and the PCR court did not make any findings of fact or
conclusions of law on this point. (ECF No. 21-3 at 394-407).
Thus, even though Petitioner raised the issue on appeal from
the denial of his PCR application in his pro se brief (ECF
No. 21-14 at 12), the claim was not preserved for review in
the state appellate court. See Plyler v. State, 424
S.E.2d 477, 478 (S.C. 1992) (stating that issues not raised
to and ruled on by the PCR court are not preserved for review
on appeal); Marlar v. State, 653 S.E.2d 266, 267
(S.C. 2007) (stating that issues are not preserved for review
where the PCR applicant fails to make a motion to alter or
amend the judgment asking the PCR court to make specific
findings of fact and conclusions of law on his allegations).
Consequently, the claims are barred from federal habeas
review. See Longworth v. Ozmint, 377 F.3d 437, 448
(4th Cir. 2004).
Petitioner argues he can show cause to excuse the procedural
bar because PCR counsel failed to ask the PCR court to rule
on the issue in a motion to alter or amend the judgment. (ECF
No. 37 at 23). Generally, any errors of PCR counsel cannot
serve as a basis for cause to excuse a petitioner's
procedural bar of his claims. See Coleman v.
Thompson, 501 U.S. 722, 752 (1991). However, in
Martinez v. Ryan, the United States Supreme Court
(the “Supreme Court”) established a
“limited qualification” to the rule in
Coleman. Martinez v. Ryan, 566 U.S. 1, 15
(2012). The Martinez Court held that ineffective
assistance of counsel “at initial-review collateral
review proceedings may establish cause for a prisoner's
procedural default of a claim of ineffective assistance at
trial.” Id. at 9. In describing its holding in
Martinez, the Supreme Court has stated:
We . . . read Coleman as containing an exception,
allowing a federal habeas court to find “cause, ”
thereby excusing a defendant's procedural default, where
(1) the claim of “ineffective assistance of trial
counsel” was a “substantial” claim; (2) the
“cause” consisted of there being “no
counsel” or only “ineffective” counsel
during the state collateral review proceeding; (3) the state
collateral review proceeding was the “initial”
review proceeding in respect to the
and (4) state law requires that an “ineffective
assistance of trial counsel [claim] . . . be raised in an
initial-review collateral proceeding.”
Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing
Martinez, 132 S.Ct. at 1318-19, 1320-21); see also
Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir.
2012) (summarizing the Martinez test to require the
following: “a reviewing court must determine whether
the petitioner's attorney in the first collateral
proceeding was ineffective . . ., whether the
petitioner's claim of ineffective assistance of trial
counsel is substantial, and whether there is
to excuse the procedural bar to Petitioner's claims, he
must “show that [PCR] counsel's representation
during the post-conviction proceeding was objectively
unreasonable, and that, but for his errors, there is a
reasonable probability that Petitioner would have received
relief on a claim of ineffective assistance of trial counsel
in the state post-conviction matter.” Sexton v.
Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012); see
also Williams v. Taylor, 529 U.S. 362, 391 (2000)
(stating that “the Strickland test provides
sufficient guidance for resolving virtually all ineffective
assistance-of-counsel claims”); Strickland v.
Washington, 466 U.S. 668, 687 (1984) (holding that in
order to demonstrate ineffective assistance of counsel, a
petitioner must show (1) his counsel was deficient in his
representation, i.e., that counsel's errors were
so serious that his performance was below the objective
standard of reasonableness guaranteed by the Sixth Amendment
to the United States Constitution and (2) he was prejudiced
as a result).
the Court finds Petitioner cannot demonstrate cause pursuant
to Martinez because his underlying claim is not
substantial-that is, the claim is patently without merit.
See Martinez, 566 U.S. at 14 (“To overcome the
default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.”). In South
Carolina, indictments are notice documents, intended to
inform defendants of the charges against them. See State
v. Smalls, 364 S.E.2d 754, 756 (S.C. 2005) (“The
primary purposes of an indictment are to put the defendant on
notice of what he is called upon to answer, i.e., to
appraise him of the elements of the offense and to allow him
to decide whether to pled guilty or stand trial.”)
(citing Evans v. State, 611 S.E.2d 510 (S.C. 2005)).
alleges that the indictments in his case were defective
because they were made while there was no term of General
Sessions Court. (ECF Nos. 1 at 14, 21-14 at 12). Even if
true, this allegation fails to plausibly show that Petitioner
was not provided sufficient notice of his charges before
trial. Thus, trial counsel had no basis upon which they could
have moved to quash the indictments, and Petitioner's
claim that trial counsel were deficient in this regard is
plainly without merit.
Objections, Petitioner does not note any specific error in
the Report's analysis of Ground Five but instead alleges
other deficiencies in his indictments that he previously
indicated in his response to the Motion, including that the
solicitor intentionally included false information in his
indictments, that the trial court altered indictments, and
that the face of the indictments does not match the body of
the indictments. (ECF No 58 at 10). However, those
allegations were not presented in the habeas petition and
were therefore not addressable by the Motion. The Court's
review in this order focuses on the habeas petition itself
and any supporting facts and arguments, not new grounds
Petitioner failed to raise in his petition. Based on its
review of the filings, the Court finds Petitioner failed to
meet his burden of showing cause to excuse the procedural bar
as to Ground Five.
Ground Six, Petitioner argues the trial court erred in
permitting the jury to view a videotaped prior statement of
the victim during deliberations. (ECF No. 1 at 16).
Respondent argues Ground Six of the Petition is procedurally
barred because Petitioner did not object to the jury's
receiving this evidence, nor did Petitioner raise this issue
on appeal. (ECF No. 21 at 21). The Magistrate Judge
recommends granting Respondent's Motion as to Ground Six.
(ECF No. 45 at 14). The Court agrees.
Objections, Petitioner admits Ground Six is procedurally
barred due to his trial counsel's failure to object and
his appellate counsel's failure to preserve the issue for
appeal. (ECF No. 58 at 7). Consequently, this issue was not
preserved for review in Petitioner's direct appeal.
See State v. Dunbar, 587 S.E.2d 691, 693-94 (S.C.
2003) (“In order for an issue to be preserved for
appellate review, it must have been raised to and ruled upon
by the trial judge.”). However, Petitioner argues the
procedural bar should be excused due to the ineffective
assistance of counsel in failing to preserve his argument for
appeal. (ECF No. 58 at 7). While this appears to be a claim
cognizable under Martinez, Petitioner failed to
demonstrate cause and prejudice to justify his procedural
default. See Martinez, 566 U.S. at 14. Accordingly,
Ground Six is procedurally barred from federal habeas review.
See Longworth, 377 F.3d at 448.