United States District Court, D. South Carolina
TIMOTHY M. CAIN, UNITED STATES DISTRICT JUDGE
matter is before the court on a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner
Brett Howard. In accordance with 28 U.S.C. § 636(b) and
Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings
were referred to a magistrate judge.Magistrate Judge Shiva V.
Hodges filed a Report and Recommendation
(“Report”) recommending Respondent's Summary
Judgment Motion (ECF No. 15) be granted. (ECF No. 26). The
Magistrate Judge advised the parties of the procedures and
requirements for filing objections to the Report.
Id. at 25. Petitioner has timely filed objections to
the Report. (ECF No. 29).
court is obligated to conduct 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 court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the magistrate
judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
evening of December 11, 2009, Petitioner was at Missy's
Lounge, a nightclub or pool hall in Jasper County, South
Carolina. (ECF No. 14-1 at 156, 211-213). Petitioner had a
.38 revolver with him and told several people that he was
“security.” Id. at 211-13, 218, 228,
230, 242. During the evening, he approached Woody Brantley
(“Brantley”) on two separate occasions and
interjected himself into Brantley's conversations with
other persons asking if everything was okay. Id. at
213, 227-28. Petitioner approached Brantley a third time
calling Brantley a racist based on a conversation Brantley
was having with a third party. Id. at 240-42,
253-54. Petitioner then pointed his gun at Brantley, walked
towards him, and pulled the trigger two or three times, but
the gun did not fire. Id. at 242, 254-55. When
Petitioner was approximately three feet from Brantley, he
again fired the gun. Id. at 206, 243, 255. This time
the gun fired killing Brantley. Id. A witness
testified that he saw Petitioner leave the bar with an
astonished look on his face after the shooting. Id.
January 2010, Petitioner was indicted for murder and
possession of a weapon during a violent crime. Id.
at 509-12. Attorneys Robert Hughes and Stephen Plexico
represented Petitioner at a jury trial held May 14-16, 2012,
before state Circuit Court Judge Perry M. Buckner.
Id. at 3. The jury found Petitioner guilty of both
charges, id. at 408, and Judge Buckner sentenced
Petitioner to forty years for the murder conviction and five
years for the weapon conviction, to run consecutively,
id. at 425.
appealed his convictions to the South Carolina Court of
Appeals. Id. at 428-37. On appeal, Petitioner was
represented by Appellate Defender Katherine H. Hudgins.
Id. at 428. Hudgins filed a motion to be relieved,
id. at 435, and a final
Anders brief, raising the following issue:
Did the trial judge err in charging the jury that inferred
malice may also arise when the deed is done with a deadly
weapon when in, closing argument, Appellant argued that the
shooting was an accident?
Id. at 430. On June 11, 2014, the Court of Appeals
dismissed the appeal in an unpublished decision. Id.
at 438-39. The remittitur was sent down on June 27, 2014.
(ECF No. 14-2).
25, 2014, Petitioner filed an application for post-conviction
relief (“PCR”), alleging ineffective assistance
of appellate and trial counsel. (ECF No. 14-1 at 440-45).
Petitioner was represented by attorney James K. Falk.
Id. at 453-501. On October 19, 2016, an evidentiary
hearing was held before state Circuit Court Judge Michael G.
Nettles. Id. at 450. On January 31, 2017, Judge
Nettles denied Petitioner PCR. Id. at 504-508.
appealed the denial of his PCR application, and Appellate
Defender Lara M. Caudy represented him on appeal. (ECF No.
14-3). On September 20, 2017, Caudy filed a petition for writ
of certiorari in the South Carolina Supreme Court, raising
the following issue:
Whether Petitioner's Sixth and Fourteenth Amendment
rights to the effective assistance of counsel were violated
when trial counsel failed to object to the jury instruction
that malice may be inferred from the use of a deadly weapon
pursuant to State v. Belcher, 385 S.C. 597, 610, 685
S.E.2d 802, 809 (2009) when, in closing argument, Petitioner
extensively argued the shooting was an accident, and where
Petitioner was prejudiced because if counsel had properly
objected, the outcome of his trial would have been different
where there was no evidence Petitioner shot the decedent with
Id. at 3. On May 24, 2018, the South Carolina
Supreme Court denied the petition (ECF No. 14-5), and the
remittitur was sent down on June 11, 2018 (ECF No. 14-6).
August 7, 2018, Petitioner filed this habeas petition,
raising the following grounds for relief:
Ground One: The trial judge erred in
charging the jury that inferred malice may also arise when
the deed is done with a deadly weapon where evidence is
presented that would reduce, mitigate, excuse, or justify the
Ground Two: Petitioner's Sixth and
Fourteenth Amendment rights to the effective assistance of
counsel were violated when trial counsel failed to object to
the jury instruction that malice may be inferred from the use
of a deadly weapon pursuant to State v. Belcher, 385
S.C. 598, 610, 685 S.E.2d 802, 809 (2009).
Ground Three: Petitioner's Sixth and
Fourteenth Amendment rights to the effective assistance of
counsel were violated when trial counsel failed to request
instructions on involuntary manslaughter and possible
No. 1-1 at 1-6).
Report, the magistrate judge determined that the issue raised
in Ground Three is procedurally barred, and that Petitioner
cannot not show cause and prejudice. (ECF No. 26 at 17-20).
Petitioner timely filed objections. (ECF No. 29). However,
Petitioner did not specifically object to the magistrate
judge's finding that this claim was procedurally barred.
In fact, he objects to the Report “in its entirety,
” id. at 3, and, while he raises complaints
about the handling of this action, Petitioner has not made
any objections addressing any specific portion of the Report.
For example, Petitioner objects to “ECF No. 18, ”
which is an order that the magistrate judge filed informing
Petitioner that she would dismiss this action if Petitioner
failed to respond to the Respondent's summary judgment
motion. (ECF No. 18). In that order, the magistrate judge
noted that she had previously warned Petitioner that pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), he needed to file an adequate response by November 26,
2018 (ECF No. 16), and she advised that if he failed to
respond adequately, Respondent's summary judgment motion
may be granted. (ECF No. 18 at 1-2). Petitioner then appears
to argue that his response to the summary judgment should
have been deemed timely and ...