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Tyre v. Lewis

United States District Court, D. South Carolina, Florence Division

July 8, 2019

David Anthony Tyre, Petitioner,
Scott Lewis, Warden of Perry Correctional Institution, Respondent.



         Petitioner is a state prisoner, proceeding pro se, who seeks relief under 28 U.S.C. § 2254. Petitioner filed this Petition for writ of habeas corpus on January 3, 2019. (ECF No. 1). On February 28, 2019, Respondent filed a Motion for Summary Judgment. (ECF No. 10). Petitioner filed a Response in Opposition to Respondent's motion (ECF No. 13), and Respondent replied (ECF No. 15). In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge's Report and Recommendation (“Report”), which recommends that the Respondent's Motion for Summary Judgment be granted and that the Petition be denied. (ECF No. 16). Petitioner was notified of his right to file objections to the Report. (ECF No. 16-1). Petitioner timely filed objections. (ECF No. 18). Respondent responded to those objections. (ECF No. 21).

         The recommendations set forth in the Report have no presumptive weight, and this court remains responsible for making a final determination in this matter. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report to which a specific objection is made, and the court may accept, reject, modify, in whole or in part, the recommendation of the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). 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).

         Since Petitioner has filed this Petition pro se, this court is charged with construing the Petition liberally in order to allow for the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal citations omitted); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, this does not mean that the court can ignore the Petitioner's failure to allege facts that set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).


         The magistrate judge set forth a detailed account of the facts in his Report. (ECF No. 16 at 2 - 3). Briefly, Petitioner went to trial on October 11, 2010, on the charges of homicide by child abuse and infliction of great bodily injury upon a child. (ECF No. 1-1 at 2). Petitioner was represented by attorneys Doug Brannon and Shawn M. Chappel. Id. The jury convicted Petitioner of both charges, and Judge Durham Cole sentenced Petitioner to concurrent sentences of life imprisonment without the possibility of parole for the charge of homicide by child abuse and twenty years for infliction of great bodily harm upon a child. Id.

         Petitioner directly appealed his conviction and sentence to the South Carolina Court of Appeals. (ECF No. 9-3 at 12 - 17). The Court of Appeals affirmed Petitioner's convictions, and the remittitur was issued on July 25, 2014. Id. at 19. Petitioner applied for Post-Conviction Relief (“PCR”) on December 18, 2014, asserting ineffective assistance of counsel, specifically stating that

Applicant contends he was denied the right of effective assistance of counsel [because] . . . Counsel failed to obtain a psychological exam, given the history of mental illness, and treatment, and no history of previous violent acts. After receiving a court order at a Bond Hearing for a psychological evaluation the applicant received an exam from Spartanburg Regional Medical Center nurse and put on suicide watch. Applicant raises questions of Constitutional magnitude in the areas of due process, equal protection, and cruel and unusual punishment.

(ECF No. 9-3 at 27). Judge Paul Burch denied Petitioner's PCR application on November 2, 2016, after conducting a hearing. (ECF Nos. 1-1; 9-3 at 102-112). Petitioner appealed the denial of his PCR application. (ECF No. 9-11). Petitioner was represented by attorney Wanda H. Carter, who perfected the appeal by filing a Petition pursuant to Johnson v. State, 364 S.E.2d 201 (S.C. 1988) asserting the following issue: “Trial counsel erred in failing to develop a mental illness defense in the case.” (ECF No. 9-12). Petitioner filed a pro se letter on his behalf in the appeal. (ECF No. 9-13 at 1-2). On October 10, 2018, the South Carolina Supreme Court denied the Johnson Petition for Writ of Certiorari. (ECF No. 9-14). Remittitur was issued on October 26, 2018. (ECF No. 9-15).

         Petitioner filed the instant habeas petition on January 3, 2019, alleging that his trial counsel was ineffective for failing to develop a mental illness defense. (ECF No. 1 at 5). On February 28, 2019, Respondent filed a Motion for Summary Judgment. (ECF No. 10). Petitioner responded on March 29, 2019, (ECF No. 13), and Respondent replied on April 5, 2019 (ECF No. 15). The magistrate judge entered her Report on May 6, 2019, recommending the undersigned grant the Respondent's Motion for Summary Judgment (ECF No. 10) and deny the Petition (ECF No. 1). (ECF No. 16). Petitioner filed objections to the Report (ECF No. 18), and Respondent replied to those objections (ECF No. 21). Accordingly, the matter is now ripe for review.


         In his Report, the magistrate judge recommends that the undersigned grant Respondent's Motion for Summary Judgment and deny the Petition. (ECF No. 16). Specifically, the magistrate judge concluded that “the PCR court's rejection of [Petitioner's] claim of ineffective assistance of counsel did not result ‘in a decision that was contrary to . . . clearly established Federal law, . . . or 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.'” Id. at 16 (citing 28 U.S.C. §§ 2254(d)(1)- (2); Williams v. Taylor, 529 U.S. 362, 404 - 05 (2000)).

         Petitioner filed objections to the Report. (ECF No. 18). The vast majority of Petitioner's objections are nonresponsive to the Report and simply reiterate the claims and facts that were already considered by the magistrate judge. However, the court gleans that Petitioner objects to the magistrate judge's determination that the PCR court did not err in finding that trial counsel was not ineffective because, in relation to the bond hearing, trial counsel was “told to seek help for the Petitioner before revisiting the bond issue.” (ECF No. 18). Furthermore, Petitioner claims that “because an ...

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