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Howard v. Warden of Lieber Correctional Institution

United States District Court, D. South Carolina

April 15, 2019

Brett Howard, Petitioner,
v.
Warden of Lieber Correctional Institution, Respondent.

          ORDER

          TIMOTHY M. CAIN, UNITED STATES DISTRICT JUDGE

         This 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.[1]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).

         The 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).

         I. Background/Procedural History

         On the 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. at 214.

         In 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.

         Petitioner 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[2] 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).

         On July 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.

         Petitioner 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 malice?

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).

         On 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 homicide.
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 accident.

         (ECF No. 1-1 at 1-6).

         II. Discussion

         In her 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 ...


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