United States District Court, D. South Carolina, Florence Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Petitioner's application
for writ of habeas corpus, filed in this court pursuant to 28
U.S.C. § 2254. ECF No. 1. Petitioner claims plea counsel
in his criminal trial was ineffective because he urged
Petitioner to plead guilty based on a trial judge's
upcoming adverse ruling on his motion to suppress, rather
than going to trial, preserving the issue, and appealing the
suppression issue. Id. at 4. Petitioner also argues
his guilty plea was involuntary because his counsel promised
a reduction in sentence for cooperation, which did not occur.
Id. at 14.
December 3, 2018, Respondents filed a return and a motion for
summary judgment. ECF Nos. 16, 17. Petitioner filed a
response in opposition to the summary judgment motion on
December 16, 2018. ECF No. 19.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(d), DSC, this matter was referred to United
States Magistrate Judge Thomas E. Rogers, III, for pre-trial
proceedings and a Report and Recommendation
(“Report”). On April 29, 2019, the Magistrate
Judge issued a Report recommending Respondents' summary
judgment motion be granted and Petitioner's application
be dismissed with prejudice. ECF No. 33. Specifically, the
Magistrate Judge recommended that the application be
dismissed as it fails on the merits of Petitioner's
ineffectiveness claims. The Magistrate Judge advised
Petitioner of the procedures and requirements for filing
objections to the Report and the serious consequences if he
failed to do so. Petitioner has filed no objections and the
time for doing so has expired. Petitioner's copy of the
Report has not been returned to the court.
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 Matthews 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 reviews 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
“in the absence of a 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.”)
reviewing the application, the motion, the applicable law,
and the Report and Recommendation of the Magistrate Judge,
the court finds no clear error. Accordingly, both conclusions
of the Report and Recommendation of the Magistrate Judge are
adopted and incorporated by reference. The court finds
Petitioner's claims of ineffective assistance of counsel
fail on the merits for the reasons stated by the Magistrate
motion for summary judgment is granted. This matter is
dismissed with prejudice.
governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing required
by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard
by demonstrating that reasonable jurists would find this
court's assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural ruling
by the district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529
U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th
Cir. 2001). In this case, the legal standard for the issuance
of a certificate of appealability has not been met.
Therefore, a certificate of appealability is denied.